Journal of Free Speech Law: “Forced Unanimity and the First Amendment,” by Frank LoMonte

The article is here; the Introduction:

If you purposefully set out to concoct a government policy guaranteed to be unconstitutional, here is how you would do it. You would impose a restraint that forbids people from expressing viewpoints on contested political issues that dissent from the government’s official position. And you would justify the restraint by arguing that, if the citizenry were given the whole truth, they might think less of the government.

This restraint doesn’t exist in the fever dream of a constitutional law professor writing a final exam. It’s real. It’s called a “one board” or “one voice” policy, and it appears to be commonplace at school boards, college trustee boards, and other government policymaking bodies across the United States.

These policies typically provide that members of elected or appointed governing bodies are forbidden from expressing disagreement with the body’s majority position once an issue has been voted on. The rationale for them is simple: to create the impression that the board is united—even if the unanimity is feigned.

To cite just one example, school districts across the Flint, Michigan, area reportedly enforce regulations that forbid elected school board members from “publicly sharing their opinions on any school district issues,” requiring board members to submit any questions they receive to the district superintendent. At the higher education level, Michigan State University recently demanded that its publicly elected trustees accede, under threat of discipline, to a code of conduct that forbids sharing any information with the public or press without permission, part of a package of restrictions that is overtly intended to dampen dissent within the often-fractious board. Similar constraints have been imposed by elected or appointed governing boards throughout the country.

This article concludes that “one board” rules are indefensible both as a matter of First Amendment law and as a matter of public policy. There is no doctrinal support for the position that attaining government office means forfeiting all free speech rights. The ability to dissent from the government’s official viewpoint is so foundational to the purpose and function of the First Amendment that it cannot be implicitly waived by assuming a governmental position. In particular, gagging board members who are popularly elected, as opposed to appointed, squarely implicates the First Amendment right of their constituents to receive information—information that may be critical in deciding whether to reelect or replace sitting officeholders.

This article begins in Part I by setting out the boilerplate First Amendment principles that sharply limit the authority of government agencies to restrain speech or to punish speakers for the content of their messages. Part II examines how courts have come to tolerate more speech-restrictive policies in the workplace setting, in deference to the countervailing efficiency concerns of government managers. Part III inquires whether people in elected or appointed lawmaking positions—positions where speaking to the public is an intrinsic responsibility of the role—have the benefit of full First Amendment protection when they speak, or only the diminished level of protection that applies to rank-and-file employees.

In light of these principles, Part IV then examines the phenomenon of the “one board” or “one voice” policy in government service and considers how a constitutional challenge by speakers restricted from expressing dissenting viewpoints might play out. The final section concludes that, both as a matter of constitutional law and as a matter of sound civic policy, it is intolerable to gag policymaking board members—the government employees whose voices the public most needs to hear—from speaking candidly about why they cast their votes.