Academic Articles
You Have the Duty to Remain Silent: How Workplace Gag Rules Frustrate Police Accountability
By Frank D. LoMonte and Jessica Terkovich
Akron Law Review, September 2022
This Article traces the First Amendment caselaw that, for more than half a century, has sided with speakers facially challenging overbroad workplace policies that forbid sharing information with the press and public. The Article then reports on the results of a nationwide survey of police and sheriff’s department policies by the Brechner Center for Freedom of Information, concluding that well over half of the nation’s biggest law enforcement agencies have rules on the books that resemble — or are identical to — those struck down as unconstitutional when challenged, at times in defiance of binding circuit-level precedent. The Article examines why these legally dubious policies persist in spite of overwhelming precedent, and identifies a handful of narrowly tailored agency policies taking a balanced approach toward employee speech that can serve as models. Ultimately, the Article concludes, it will take legislative action to unshackle the voices of America’s law enforcement officers, since litigation alone has done little to deter persistent enforcement of “gag rules” that deprive the public of the benefit of candid information about how the ultimate governmental power — police power — is being used.
Orange Is the News Blackout: The First Amendment and Media Access to Jails
By Frank LoMonte and Jessica Terkovich
Marquette Law Review, March 2022
This Article examines and critiques the dubious constitutional logic that has left jail inmates without assurance of any practically effective method of enlisting help from the press and public to blow the whistle on unsafe jail conditions. The Article calls for the Supreme Court to revisit its unhelpful, decades-old precedent that has emboldened jails to enact highly restrictive policies that deny detainees, many of whom have been convicted of nothing and are being held on petty “poverty charges” – any meaningful ability to speak to the news media. The Article reports on the results of a nationwide survey of jail policies uncovering several with bizarre and constitutionally indefensible constraints, including one big-city jail that openly forbids jail inmates from discussing jail conditions with the news media.
The authors view the restrictive climate for inmate/media communications in light of contemporary developments, both legal and factual, that support comprehensively revisiting and clarifying the unhelpful Houchins standard. Legally, the landscape has changed because (1) the Court has recognized a First Amendment right to observe every critical phase of the criminal trial process, and (2) an evolving body of caselaw recognizes the right to record government employees (especially law enforcement officers) doing official business on public property. Factually, the landscape has changed because of the well-documented problem of misuse of law enforcement authority against people of color, including within jails, which has shaken public confidence in the justice system and provoked calls for greater transparency and accountability. These developments, the Article concludes, call for revisiting seemingly settled assumptions that prevent journalists and inmates from invoking the First Amendment to challenge even grossly overreaching jail policies that suppress whistleblowing speech.
Smartphone Security for the Mobile Journalist—Should Reporters Give Police the Finger?
By Frank D. LoMonte and Philip J. Sliger
North Carolina Journal of Law & Technology, December 2021
This Article surveys the landscape of constitutional and statutory claims that might apply when a journalist is confronted with a demand to decrypt a smartphone for police inspection. Additionally, this Article examines the pro-and-con arguments for the two primary security methods—alphanumeric passcodes and biometric locks—and how courts have treated those unlocking methods for Fourth and Fifth Amendment purposes. Lastly, this Article concludes that journalists assigned to scenes where clashes between police and protesters are foreseeable should anticipate facing a demand to surrender a phone—or face an arrest—and take precautions, knowing that after-the-fact damages as remedies against police are, after the Supreme Court’s recent ruling in Nieves v. Bartlett, increasingly unreliable.
By Frank D. LoMonte
Loyola University Chicago Law Journal, Vol. 53, Issue 1 (Fall 2021)
Journalists, researchers and activists rely on freedom-of-information laws for access to the essential data and documents they need. But the ability to copy and republish public documents exists in the chilling shadow of copyright law. This Article looks at the growing tension between two bodies of law— federal copyright law and state public-records law— and how the aggressive use of copyright law to “paywall” inspecting and redistributing government documents can inhibit effective public oversight. The Article identifies the knotty jurisdictional problems that arise when a dispute over government records requires interpreting both copyright law (the exclusive province of federal courts) and state freedom-of-information law (the exclusive province of state courts), with the practical result that the delay and expense of parallel litigation will be tantamount to denial of access for all but the most stubborn requester. Because the public needs government data and documents to discharge its civic watchdog role, the Article concludes that copyright should not be understood to impede inspecting and copying public records, because narrower exemptions for “trade secrets” fully protect rights-holders’ legitimate economic interests.
Wilson’s Foreboding Forecast for Sunshine Laws: Partly Cloudy, With a Chance of Unconstitutionality
By Frank D. LoMonte and Paola Fiku
Notre Dame Journal of Law, Ethics & Public Policy, Vol. 36, En Banc Issue 1, September 2021
During the 2021-22 term, the Supreme Court will hear oral arguments in an under-the-radar First Amendment case with great potential for spillover effect on the enforceability of laws entitling the public to attend government meetings. Houston Community College System v. Wilson is ostensibly a case about whether an elected government board can freely sanction one of its own maverick members for disloyal speech, without implicating the speaker’s First Amendment rights. But the case, if broadly decided, could unsettle four decades’ worth of caselaw finding no First Amendment problem with compelling members of elected public bodies to hold their official-business discussions in duly noticed public meetings only.
Open-meeting laws (often called “sunshine” laws) are a venerated feature of contemporary political life. Enacted largely around the time of the Watergate scandal, these laws aim to create both substantively better government decisions (by giving the public an opportunity for input before decisions solidify) as well as an appearance of trustworthiness (by reassuring the public that decisions are not being made corruptly in smoke-filled backrooms). But elected officials who find the strictures of transparency discomforting have, from time-to-time, challenged these statutes as an infringement on their own right to discuss issues of public concern with their colleagues. So far, no court has accepted the invitation to invalidate an open meeting statute entirely.
But if college trustee David B. Wilson secures a broad victory in his Supreme Court case, challenging a sanction resolution imposed by the college board on which he served, the movement to invalidate open meeting laws could be reenergized. Courts have disposed of the first generation of constitutional challenges rather summarily, without grappling with the tough question of whether (and to what extent) elected officials surrender First Amendment protections when they assume office. A win for Wilson could force a reckoning on those questions. The authors urge the Court to consider how a decision placing the First Amendment rights of elected officials on a plane comparable to that of all other citizens might adversely affect the enforceability of laws that require public business to be deliberated in public.
By Frank D. LoMonte
Washington University Journal of Law and Policy, Vol. 65, No. 91, 2021, August 2021
In recent years, the Supreme Court has revisited regressive human-rights rulings that no longer stood the test of public legitimacy, including Bowers v. Hardwick (criminalizing same-sex relations) and Korematsu v. United States (legitimizing Japanese internment). It is time for the Court to do so with Hazelwood School District v. Kuhlmeier, the 1988 school-speech ruling that has unleashed two generations of dehumanizing mistreatment of students in America’s public schools. It is no longer tenable to issue school authorities Hazelwood’s blank check of censorship authority, knowing how badly it has been abused and how futile and self-defeating school censorship is, as a practical matter in the 21st century information age.
This article describes the adverse consequences of Hazelwood in diminishing the quality of civic education and fostering a disempowering school climate, teaching students the corrosive “lesson” that the government is always right and that criticizing the government is a punishable offense. The article specifically highlights how the Court’s focus in Hazelwood on preserving the reputation of the school against association with political controversy has been discredited, which calls for revisiting the doctrine as the Court has done with other outdated precedents. The article focuses on the Fifth Circuit’s anachronistic decision in Doe v. Silsbee School District, in which three judges told a teenage rape victim that her act of silent protest was not just constitutionally unprotected against school punishment, but was so clearly unprotected that her lawsuit was frivolous. This degrading inhumanity is possible only because Hazelwood, as it has been interpreted over the past three-and-a-half decades, failed to strike a sensible balance between individual liberties and school authority. A new balance is needed for a new century.
By Frank D. LoMonte and Courtney Shannon
Hofstra Law Review, Vol. 49, No. 773, 2021, August 2021
It has become an accepted commonplace that college admissions officers will view applicants’ social media profiles as part of the screening process. Between 25 and 40 percent of admissions employees, according to one annual survey, look at candidates’ social media feeds — and, by one study, 8 percent of admissions officers at public institutions have made an adverse decision based on something they found on social media. Lost in this discussion is that state universities are bound by the First Amendment in every other speech-based decision they make. Is the admissions office immune from normal First Amendment principles? Should it be? This question has gained new currency as colleges face public demands to “dis-invite” enrollees whose offensive online speech comes to light amid a nationwide racial reckoning.
In this paper, the authors trace the evolution of the “academic freedom” doctrine as it regards university discretion to admit or reject students — and where students (on rare occasions) have successfully challenged that exercise of discretion. The authors report on the results of their nationwide survey of public universities, finding that none claim to have any written standards governing how admissions officers exercise discretion to review and consider material from social media. This lack of intelligible standards is an invitation for a candidate rejected on the basis of social media speech to lodge both First Amendment and due process claims.
The paper concludes that, if social media is to be included at all in the admissions decision, it should be done only with carefully designed and transparent policies that afford rejected applicants a fair opportunity to explain and correct any “lost-in-translation” misunderstandings that have been used to their detriment. The authors recommend a statutory model based on the Fair Credit Reporting Act, which in the employment context requires employers to disclose that they have used a credit report in making an adverse hiring decision and to give the rejected applicant an opportunity to correct erroneous information.
By Frank D. LoMonte
19 Seattle J. for Soc. Just. 693, Seattle Journal for Social Justice, August 2021
At workplaces across the United States, the COVID-19 pandemic brought with it an epidemic of threats and firings as employee whistle-blowers spoke out publicly about their concerns over safety inadequacies. But the silencing of employee dissent is not limited to the medical field. Distribution giant Amazon confirmed that it fired two tech workers critical of the company’s coronavirus safety precautions because they violated a company policy against commenting publicly on Amazon’s business practices without supervisory approval. A company vice president noisily resigned in protest, declaring that the firings were “designed to create a climate of fear.”
Remarkably, employers everywhere seem convinced that they have total control over what employees say to the press and public—even though federal regulators have told them, repeatedly, that they do not.
The latest reminder came in March 2020 in Maine Coast Regional Health, a case that involved whistle-blowing speech by a hospital insider. In that case, three Trump administration appointees to the National Labor Relations Board (NLRB) reaffirmed the Board’s longstanding position that categorical prohibitions on speaking to the news media are unlawful — a ruling recently affirmed by a three-judge panel of the federal First Circuit. That the Trump-dominated NLRB ruled in favor of workers’ speech rights, even after having retreated from many other pro-employee precedents, shows just how durable and widely accepted the principle is: Employers may not threaten employees with reprisals just because they discuss their work with the press.
When employers disregard employees’ rights to speak to the media, news coverage suffers. Journalists are left with the unpalatable options of relying on unnamed sources or quoting party-line spin from corporate spokespeople. Audiences must make do with incomplete accounts of how pseudonymous workers struggle to maintain hygiene in unnamed hospitals in unspecified locations.
This article attempts to amplify a little-noted body of precedent that guarantees private-sector employees the right to discuss work-related matters with the media without fear. This right, the article observes, is of special urgency at a time of global health crisis when the public needs to hear from trustworthy subject-matter experts and to experience the stress and suffering of front-line medical workers.
By Frank D. LoMonte and Ann Marie Tamburro
Lewis & Clark Law Review, Vol. 25, No. 1, 2021, August 2021
As unrest erupts across the country over issues of police violence and race, how and when police use their authority inside schools is receiving renewed, and overdue, scrutiny. Students of color are uniquely at risk of overzealous arrest as a result of a confluence of dangerous factors: Young people are constantly surveilled throughout the school day, constitutional search-and-seizure protections are diminished, and police have the benefit of not just the criminal laws that would apply in the “real world,” but a host of vague and subjective “speech crimes” for which they can justify detention, search and arrest.
This Article focuses on the most subjective of all school-based offenses: “Disruption.” Using the vehicle of a recent Kentucky appellate case dismissing a First Amendment challenge to an especially open-ended “school disruption” statute (which the U.S. Supreme Court regrettably refused to review), the Article traces how these statutes have been used to turn what was previously grounds for (at worst) a suspension into a basis for arrest, prosecution and jailing. The focus of the Article is on the constitutional infirmity of Kentucky’s statute and many of the other 25 school-disruption statutes across the country. This Article is the first to give a granular examination of the constitutional weaknesses of these statutes up against the body of First Amendment precedent, starting with the Supreme Court’s Tinker standard, that forecloses content-based punishment for speech unless it “substantially” disrupts school. Remarkably, the authors find, Kentucky and a number of other states have statutes that expose students to criminal penalties based on a threshold lower than what the First Amendment would require to validate even a minor disciplinary sanction.
Although the Supreme Court missed in chance in Masters v. Kentucky to set clear boundaries for when nonviolent “speech crimes” can be grounds for arrest, another vehicle may be on the way. The nationally publicized case of South Carolina teen Niya Kenny, arrested on “disruption” charges while shooting smartphone footage of the brutal police takedown of a Black classmate, is making its way through the federal courts. The authors conclude that Supreme Court clarification is desperately needed to curb the potential that vague, overbroad laws will be applied subjectively against students of color and those voicing contrarian criticism of their schools. Clarification is especially overdue, the authors urge, at a time of renewed youth activism, as young people engage in marches and other acts of peaceful political expression that, under the worst state “disruption” statutes, could constitute grounds for arrest.
By Frank D. LoMonte and Harrison O’Keeffe
New Mexico Law Review, Winter 2020
This article examines the legal status of the nonprofit organizations that make and enforce the rules governing high school sports competition. Researchers from the Brechner Center surveyed all 51 of the statewide associations to ascertain their willingness to comply with state open-records laws. The associations responded with varying levels of cooperation (if they responded at all). In Part II, the article explains how high school associations are structured and how they resemble government agencies. Part III explains how the courts have treated these quasi-public entities, both for purposes of state open-government laws and, more generally, when their “state” status becomes significant to a claim brought by an aggrieved party. Part IV describes the findings of the Center’s nationwide open-records survey and how the associations’ responses—or lack of responses— squares with the applicable open-government statutes. Part V concludes with recommendations for clarifying state open-government laws to more explicitly apply to associations comprised predominantly of public agencies, so that the public can reliably obtain information about how important policy decisions are made.
By Frank D. LoMonte and Virginia Hamrick
Nebraska Law Review, 2020
This Article augments the growing body of scholarship about athletes’ rights by focusing on one particular and largely overlooked right: the right to speak freely to the news media. The Article concludes that athletes’ right to discuss issues of public importance—including issues about the safety and integrity of an athletic program—is protected by the First Amendment at state universities despite the fact that institutions across the country are routinely infringing upon this right. The right to speak to the media is foundational to athletes’ ability to blow the whistle on wrongdoing and safety hazards within their own teams which might otherwise go unaddressed.
The ‘Social Media Discount’ and First Amendment Exceptionalism
By Frank D. LoMonte
University of Memphis Law Review, Vol. 50, No. 387, 2019
Across American society, regulatory authorities (often with the acquiescence of credulous judges) are policing speech on social networking sites as if social media constituted a “First Amendment-free zone” to which traditional free-speech principles no longer apply. The phenomenon is readily discerned in the workplace and on the campuses of public schools and colleges, where speech on social media is being subjected to greater scrutiny and control than any other form of expression. Tragically, it has resulted in the arrest and incarceration of innocent people for harmless moments of misjudgment when their social-media speech reaches unanticipated audiences devoid of context.
Through case studies and comparing parallel bodies of U.S. law, this paper examines American society’s growing willingness — and most especially, that of the federal judiciary — to accept intrusive regulation of online expression in ways that would never be countenanced as to other mediums. For example, recent court rulings have allowed colleges to punish students for “unprofessional” speech on social media, even though the Supreme Court has never said that speech loses its constitutional protection merely for “unprofessionalism.” The paper questions, as both legally unsound and societally unhealthy, the proposition that individuals must accept as a matter of course that it is standard practice for supervisors to punish out-of-office speech based on subjective determinations of “professionalism” or “appropriateness.” The extension of “good-conduct policing” into individuals’ social-media lives risks, counterproductively, excluding those with the greatest subject-matter expertise from the marketplace where discourse should be the most freewheeling. The growing creep of educational institutions’ disciplinary authority into their students’ off-hours lives, the paper argues, “normalizes” this authoritarian drift. The risks are especially serious for the young and people of color, whose speech may be most discomforting to — and subject to contextual misinterpretation by — middle-aged white authority figures.
The paper concludes by analyzing recent cases, including those involving President Trump, in which “defamation by tweet” was alleged, and notes that in the context of libel law, the courts have readily accepted that reasonable readers do not take social-media posts at face value. Rather, it is the growing consensus of the courts that social-media speech is understood as loose, figurative and hyperbolic, so that words posted to Twitter do not carry the same impact as comparable words in a magazine or newspaper column. This contextual discounting, the author concludes, is eminently reasonable and should guide decision-makers and courts in assessing the punishability of social-media speech as well, whether in school, at work, or in the criminal courts.
By Frank D. LoMonte
University of Florida Journal of Law and Public Policy, Vol 30, 2019
America has a rich history of peaceful protests and demonstrations on public property as activists exercise their First Amendment right of freedom of speech, regardless of how vitriolic or partisan that rhetoric may be. But the amount of First Amendment protection that speakers receive when using government property, and the durability of that protection, is an issue that has confounded federal courts, calling for U.S. Supreme Court clarification.
Two recent federal appellate court decisions, one in the Fourth Circuit U.S. Court of Appeals and the other in the Ninth Circuit, leave considerable uncertainty as to whether a speaker who is denied access to (real or virtual) public property for expression can mount a successful First Amendment claim.
The primary legal determinant is called the “forum doctrine,” which claims that while all government property belongs to the public both physically and metaphysically, not all government property is equally suitable for expressive use. While speech in a forum is highly protected against content-based discrimination, the federal courts have created a gaping loophole that invites abuse: A government agency may not directly silence a speaker in a public forum, but can indirectly achieve the same result simply by declaring that the forum is “closed,” even if that closure if nakedly retaliatory for constitutionally protected speech.
In the first case, the Fourth Circuit tackled the display of banners on lampposts in Lexington, Virginia. The Sons of Confederate Veterans were blocked from using city lamppost standards for commemorative displays even though other speakers were given access to the same property. The Court categorized the city-owned lampposts as a designated public forum, but found no First Amendment violation in the city’s decision to rescind public access to the forum, even if intended to silence a particular disfavored viewpoint.
Meanwhile, the Ninth Circuit case involved a student-produced magazine at UC-San Diego specializing in tasteless humor. The university denied the magazine’s eligibility to compete for student activity fees, forcing it to discontinue printing. In this scenario, according the court, denying funding effectively closed the forum and violated the newspaper’s freedom of speech. These cases are difficult to reconcile, and they suggest the need for Supreme Court clarification.
This forum nature of public spheres also extends to social media pages. Social media users who were blocked from reading or posting comments to pages maintained by government officials have largely prevailed when challenging the withdrawal of access as a First Amendment violation. Because it is now so easy to create a “forum,” government decision-makers need clear judicial guidance about when a governmental social media page may be deactivated entirely.
The article traces the history of the “forum closure” doctrine to an old and discredited line of federal caselaw dating back to the closure of public swimming pools by segregationists. The article concludes that the notion that government property may freely be closed without inquiry into the decision-maker’s motives is an illegitimate relic of the segregation era that, like segregation itself, should be discarded and renounced.
By Frank D. LoMonte
Kansas Law Review, 2019
This Article attempts to provide a roadmap by which news organizations aggrieved by excessively heavy-handed control over public employees’ speech can bring their own challenges. It also identifies the likely legal and practical obstacles in litigating First Amendment cases asserting public employees’ right to speak freely to the press. Part II lays out the foundational legal principles that constrain the government’s authority to prevent or punish speech, and how those constraints are understood to vary in the government workplace. Part III describes how, in a case brought by federal employees denied the ability to earn honoraria for off-hours speaking engagements, the Supreme Court crafted an enduring standard that confines the government’s ability to preemptively restrain speech. Part IV explains the Supreme Court’s oft-misapplied Garcetti standard, and how widespread misinterpretation of that 2006 decision may have emboldened government employers to enact overreaching speech policies. Part V identifies an additional constitutional infirmity in government agencies’ regulation of speech: the failure to enact clear, objective standards constraining the discretion of decision makers in determining who gets to speak. Part VI presents the results of research gathering and analyzing policies to show how routinely agencies at all levels—from Cabinet agencies down to local schools—constrain employee speech in derogation of established First Amendment precedent. Part VII explores why legal challenges to workplace gag orders are rare, and why news organizations can and must assume primary responsibility for bringing the First Amendment cases that employees themselves will not. Part VIII concludes with a policy-based rationale for unshackling government speakers at a time when struggling news organizations, and their audiences, need first-hand access to trustworthy information more than ever.
The Open Mic, Unplugged: Challenges to Viewpoint-Based Constraints on Public-Comment Periods
By Frank D. LoMonte and Clay Calvert
Case Western Reserve Law Review, Vol. 69, No. 19, 2018
Agencies of local government are assertively regulating what speakers say during the “open mic” period of public meetings, at times running afoul of well-established First Amendment legal doctrines that forbid content- or viewpoint-based distinctions. In this article, Profs. LoMonte and Calvert examine recurring fact patterns in First Amendment cases involving the right to address public bodies, and conclude that many policies on the books at agencies across the country today are doubtfully constitutional because they forbid criticizing or commenting on the performance of government officials, including elected officials who are supposed to absorb even sharp commentary from their constituents.
The article takes its inspiration from the U.S. Supreme Court case of Lozman v. City of Riviera Beach, involving the arrest of a Florida citizen-critic who refused to stop using his city council’s open-mic period to decry political corruption. The article sets forth a proposed roadmap for resolving the Supreme Court’s pending Nieves v. Bartlett case — involving a person arrested for confronting a highway patrolman — and cautions that a broad decision adverse to the speaker in the Nieves case could portend danger for journalists, commentators and others who seek to express dissenting views to government practices.
The article explains why principles of democratic self-governance require elected officials to tolerate sometimes-disagreeable viewpoints as part of the discourse about matters of public concern, as the Supreme Court reiterated in its Lozman decision. The authors urge the Supreme Court to recognize rigorous protection against retaliatory arrest for speakers who challenge government authority, looking to the burden-shifting analysis recognized in the Court’s Mt. Healthy case, which strikes a sensible balance enabling government agencies to obtain dismissal of facially unfounded free-speech claims while protecting speakers with meritorious claims.