From a Knight First Amendment Institute symposium on managing government employee speech in a democracy, this piece is being published by the Journal.
The piece opens with the Introduction:
Suppose you set out with the aim of crafting a government policy that is guaranteed to clash with the First Amendment. Here is how such a plan would unfold. You would impose a restraint that bars officials from voicing opinions on contentious political questions that deviate from the government’s official stance. And you would defend the restraint by arguing that, if the public were shown the full truth, they might come to hold the government in lower regard.
This restraint isn’t a theoretical fantasy of a constitutional-law professor drafting an exam question. It’s real. It goes by the label of a “one board” or “one voice” policy, and it appears to be widespread on school boards, university trustees, and other government policymaking bodies across the United States.
These rules typically provide that members of elected or appointed governing bodies are barred from expressing disagreement with the body’s majority position once a matter has been decided. The justification is straightforward: to project a sense of unity on the board—even if that unity is only superficial.
Take, for example, the Flint, Michigan region, where school districts reportedly enforce rules prohibiting elected school board members from “publicly sharing their opinions on any school district issues,” and they require members to forward any inquiries they receive to the district superintendent. At the higher-education level, Michigan State University recently insisted that its publicly elected trustees comply, under the threat of discipline, with a code of conduct that forbids sharing any information with the public or press without permission, as part of a package of restrictions explicitly designed to curb dissent within the often contentious board. Similar restrictions have been adopted by elected or appointed governing boards across the country.
This piece argues that “one board” rules are indefensible both on First Amendment grounds and as a matter of public policy. There is no doctrinal support for the claim that attaining a government office entails surrendering all free speech rights. The capacity to dissent from the government’s official viewpoint lies at the core of the First Amendment’s purpose and function, and it cannot be tacitly waived simply by assuming a government role. In particular, silencing popularly elected board members—rather than those who are appointed—directly implicates the First Amendment right of their constituents to receive information, information that may prove decisive in deciding whether to reelect or replace current officeholders.
This piece proceeds in Part I by outlining the standard First Amendment principles that tightly constrain government agencies from restraining speech or punishing speakers for the content of their messages. Part II explores how courts have permitted more speech-restrictive policies in the workplace, often deferring to the efficiency goals cited by government managers. Part III asks whether individuals in elected or appointed lawmaking roles—positions in which speaking to the public is an inherent duty—get robust First Amendment protection when they speak, or merely the diluted protection accorded to rank-and-file employees.
Against this backdrop, Part IV investigates the emergence of the “one board” or “one voice” practice within public service and considers how a constitutional challenge by speakers barred from voicing dissent might unfold. The concluding section maintains that, both as a constitutional matter and as prudent civic policy, it is unacceptable to silence policymakers on boards—the very government employees whose voices the public most needs to hear—from speaking candidly about the reasons behind their votes.
