Opinion: First Amendment Failures

FAU needs to stop violating its community’s First Amendment rights.

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Opinion: First Amendment Failures

Cameren Boatner and Hope Dean

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Thomas Elton broke the law.

He sent his staff at Owls Care, a group that promotes physical and mental health, a message that violated their First Amendment rights.

Elton told his staff that they risked being “terminated” if they spoke to the University Press about their most recent accomplishment — being named an “Outstanding Peer Education Group.”

“You are not permitted to talk to newspapers that include but are not limited to the University Press, anyone wanting to write reports, articles, etc. If you are asked questions, refer them to professional staff. If anyone is found to be providing interviews/ making guarantees/ promises without the consent of a professional staff member, you may be terminated,” Elton wrote to his staff.

What Elton did is a violation of his employees’ First Amendment rights, according to Frank LoMonte, the current executive director of the Brechner Center for Freedom of Information and former executive director of the Student Press Law Center. It’s also far from the first time this sort of thing has happened during my tenure at the paper, let alone the paper’s history.

In my two years here, I put up with the violations — from coaches telling athletes they can’t speak with the media to Media Relations barring FAU staff from speaking with us — but last month, I became fed up.

FAU Associate Marketing Director Jeremy Adam said the message was sent out “in error.” He also said, “Faculty, staff and student representatives have the capability to speak with media organizations if they choose to do so,” via email.

LoMonte said that public universities can’t bar people from speaking with the media or exercising their rights in other ways.

“You can’t force somebody to sign away their First Amendment rights in exchange for a government job,” LoMonte said.

I asked the Foundation for Individual Rights in Education (FIRE) to write a letter to the university, putting them on the spot about their staff’s and students’ rights under the First Amendment. And FIRE’s Individual Rights Defense Program Officer Lindsie Rank spoke with FAU’s lawyer. She thinks they’ll take FIRE’s advice in revising a policy that stifles free speech. The UP reached out to FAU General Counsel but has not received a response as of publication time.

The policy on FAU Media Relations’ website says:

“Personnel in all departments and areas should feel free to respond to questions posed by the media concerning their departments or areas. If they are concerned about speaking with the media or with formulating a response, they should contact Media Relations for assistance.”

Rank says this part of the policy is good. But the policy goes on to contradict itself by saying:

“The proper procedure to release information to the media is to go through Media Relations –the official source of information for media representatives.”

“The first part is really good. It expresses a commitment of transparency. Faculty and staff can talk to the media when and if they want to. The second part of the policy says that information released to the media has to go through relations. That could mean any information you’re trying to release to the media,” Rank said.

The problem with asking faculty and staff to show media relations their comments before sending it off to the press is that it lacks a sense of transparency that is crucial to public universities.

“The reason transparency is important is you’re talking about a public institution that takes taxpayer dollars and puts them to work. If the public doesn’t know what you’re doing with those dollars, then that’s a problem,” Rank said.

Locker room lockdown

“FAU appears to maintain similar concerning practices related to athletics media

relations, although FAU does not appear to have a specific athletics media relations policy,” Rank wrote in the letter to FAU.

Managing Editor Kristen Grau wrote an article in November 2018 about how FAU’s cheerleading and dance teams will not have any locker rooms in FAU’s new Schmidt Family Complex for sports, while the size of the football players’ locker room has doubled. 

She tried to reach out to cheerleaders and dancers to see how they felt about the situation, and all of them declined to comment. But this wasn’t an individual choice — they cited a meeting where their coaches allegedly told them not to speak with the media.

“We were asked not to speak to anyone,” another anonymous spirit member said. “My coach gave us strict orders.”

Sports Editor Zachary Weinberger wrote an article about FAU Athletics’ stance on whether student-athletes should profit from their name and likeness. He tried to interview freshman football players, but Communications Assistant Director Katrina McCormack told him they have a policy that freshmen athletes can’t speak with the media.

“When a student-athlete wants to speak to the media in his or her own capacity about matters of their own concern even about the university, they shouldn’t have to seek approval from media relations,” Rank said.

FAU’s cheer and dance teams are National College Athlete Association (NCAA) Division I sports, just like FAU’s football team. But the First Amendment rights of athletes are a “gray area,” LoMonte said, usually because those types of cases don’t go to court, where the limits of their free speech would ultimately be decided.

However, he still finds this situation fishy. 

“In my opinion, ordering members of a cheerleading squad not to talk to the media is a violation of their First Amendment rights, whether they are viewed as employees or whether they are viewed as students,” LoMonte said. 

And it doesn’t matter if a rule barring contact with the media is officially written down like it is with resident assistants — it’s unconstitutional to stop someone from talking to the media even if the rule is just spoken.  

“If a person who has supervisory authority over you gives you an illegal order, then they’re violating your rights … If everybody is informed that it is a regulation, it’s just as good as if the regulation really exists,” he added. 

But at the time, Jessica Poole, senior associate athletic director for FAU’s external relations department said any athlete can speak to the media at any time. 

Our coaches don’t bar anyone from speaking with the media, that is a personal decision made by each of our student-athletes,” she said in an email.

Multiple athletes told the UP about the meeting nonetheless. 

Fixing the failures

These instances of FAU barring its community from exercising their First Amendment rights don’t stand alone. It happens constantly and has been going on for years.

For example, former Editor-in-Chief Ryan Cortes published a piece about this exact same topic in 2012 — including a mysterious unspoken policy saying that staff members absolutely have to talk the media through Media Relations when the exact opposite is stated in FAU’s Media Relations policies

And this continues because people don’t care enough to stop it, according to LoMonte.

“I think almost nobody feels so strongly about giving an interview to a reporter that they are willing to challenge their own employer. It would take an especially courageous person to get a lawyer and sue their own supervisor for a right to give an interview, and nobody feels that invested in giving an interview,” he said. 

Part of the problem lies in not practicing what Media Relations preaches. That’s why Elton’s message was sent out in error: FAU employees don’t understand First Amendment requirements. The fact that the message even went out deters students from speaking with the UP or other media, even if the staffers couldn’t have been fired.

Rank said the first step in fixing the relationship between FAU and the media is to revise their policy and make sure they’re practicing it.

“Part of the policy is actually really good and we’re looking forward to speaking with Florida Atlantic and making that policy better,” Rank said. “If we can bring it back to what that first policy looks like, and make sure their practices also reflect that, then FAU will have the gold standard in student press policies.”