Do Penn State’s bylaws restrict trustees’ freedom of speech? What experts said
AI-generated summary reviewed by our newsroom.
- First Amendment experts say Penn State bylaw limits trustee speech.
- Bylaws mandate trustees coordinate press remarks with public relations team.
- One trustee voted against adopting the new changes.
The Penn State trustees’ recently updated bylaws that limit board members’ press interactions raise serious First Amendment concerns, according to four experts the Centre Daily Times talked with.
The board approved an update to its bylaws earlier this month that included requiring trustees to “coordinate all media and press interactions relating to matters that have come before the Board with the Board Office in advance and shall respect guidance regarding such interactions that might be conveyed by that Office or the Office of Strategic Communications.” It updates a rule put in place last year that said trustees had to coordinate media interviews and press statements with the board office, who then could work with strategic communications.
The further limits on how trustees interact with the media raised eyebrows among First Amendment experts, who said the new bylaws raise “serious constitutional concerns” and potentially restrict the trustees’ speech.
Melissa Bevan Melewsky, media law counsel for the Pennsylvania NewsMedia Association, of which the Centre Daily Times is a member, said in this situation, Penn State is a government actor and any government restriction on speech raises a red flag from a constitutional perspective.
“Board members are not university employees, and they have a constitutional right to speak about matters of public concern. Moreover, their constituents, the press and the broader community have a right to receive information without undue government interference,” she said in an email. “The policy restricts the free flow of information, and it could chill protected speech about matters of public concern, both of which create potential liability for the university and work against the public interest.”
David Cuillier, director of the Freedom of Information Project for the Brechner Center for the Advancement of the First Amendment at the University of Florida, said it’s one thing for the board to recommend that trustees be clear that they are speaking for themselves and not on behalf of the board. But saying they “shall” get clearance from the university’s public relations team is another thing, he said.
Amy Kristin Sanders, the John and Ann Curley Chair in First Amendment Studies at Penn State, said these changes are a variation of what is called a “one board rule.” It has come up more recently among government entities that Sanders thinks are trying to control what board members or government employees say.
The board of trustees is made up of 36 voting members and two ex-officio non-voting members, the university president and the governor of Pennsylvania. Nine of them are elected by Penn State alumni. A real challenge in this specific case, Sanders said, is that the elected members have an obligation to speak for the constituencies who elected them.
“This idea that a board member should have to clear all media appearances, should have to run any statements by some kind of official entity overseeing the board is problematic because it inhibits their ability to essentially speak any kind of dissenting viewpoint to the constituencies who elected them,” Sanders said.
Anthony Lubrano, an alumni-elected trustee, was the sole vote of opposition against the bylaw changes. During the Nov. 7 meeting, he said the changes don’t align with best practice, especially limiting the trustees’ speech “more than it already has been limited.” He previously voted against bylaw changes in 2024 that gave existing board members more say over who can be on the ballot for alumni-elected seats.
When can Penn State trustees express their viewpoints?
The bylaws state that while debate of the trustees views is “fully embraced” during board meetings, outside communication of a board member’s views can be misconstrued to be an expression of the entire board’s position. Therefore, trustees should make “diligent efforts to avoid such misunderstandings.”
Tabitha Oman, vice president and general counsel at Penn State, said the line was added so the bylaws clearly state trustees are encouraged to debate their views during a board meeting.
She emphasized that there are no limitations on debating views during a board meeting based on if members of the public or press are present.
Cuillier applauded them for fostering free discussion but said that still doesn’t mean they can restrict what a trustee says outside of a meeting.
“Everyone in this country — including trustees — have a right to express their viewpoints to their family, neighbors, reporters, and the press. Muzzles are for dogs, not people,” he said in an email to the CDT.
The board of trustees meets in public routinely throughout the year to discuss and take action on university business, like high-profile hires, approving large projects on campus, setting the tuition rates and reviewing and approving the budget. But the board’s past practices point to a lack of transparency and openness with the public, and it has even been sued for alleged violations of the state’s Sunshine Act.
“It’s a bit ironic actually, that they included the line about speaking your opinions in meetings, given the board’s history of having essentially closed-door meetings or executive sessions, as they call them, and then coming into public meetings and simply voting through the agenda,” Sanders said. “That suggests to me that they really want no discussion, no input, no commentary, to take place during the public versions of the meetings. That’s been sort of their history and reputation. This new bylaw update really just seems to be an extension of that allergy to transparency that they’re known for.”
There is a notable trend toward government secrecy across all levels of government in the United States right now, she said, and these bylaw changes could be part of that trend. Penn State has been leading that trend toward secrecy for decades, Sanders said.
But ultimately, she thinks the desire to silence dissent and keep embarrassing topics from coming up in public is likely the driving force behind the change in bylaws. The university is facing many lawsuits currently, she said, and there’s been a lot of controversy related to former trustee Barry Fenchak’s removal from the board and his push for transparency.
Would the bylaws hold up if legally challenged?
Fenchak previously filed a lawsuit against the university that alleged the trustees adopted unconstitutional bylaws to silence dissent and unfairly targeted him for his critical questions. Centre County Judge Brian Marshall found the governing rules represent a “right to self-governance.” In August he dismissed Fenchak’s lawsuit with prejudice, meaning it cannot be refiled.
Fenchak and his attorneys took particular issue with the requirement that trustees support majority board decisions, characterizing it as a “draconian gag order.” Marshall said that section of the board’s bylaws is “undoubtedly a restriction on the speech of Trustees.” And while the restriction is seemingly inconsistent with the state constitution’s broad guarantee of free speech, Marshall said the right is not absolute.
Sanders and Cuillier still see potential for a successful First Amendment challenge to the bylaws, with Cuillier pointing to Allegheny County, which was sued in 2023 for a gag policy on its employees. The county ended up settling, likely in anticipation of losing, he said.
Sanders said the bylaws can be viewed two ways. It can be viewed as a prior restraint, or an unlawful governmental effort to silence someone’s speech before they speak. That alone will have a “very serious chilling effect” on what the trustees will feel comfortable speaking about, she said.
But what remains to be seen is whether this could be considered a content-based restriction on speech.
“It will be interesting to see this play out, and to see … what happens to any trustees who do choose to speak without getting approval, or how it’s enforced against trustees, and whether they single out certain trustees who tend to be more vocal and sort of chastise them for their speech, as opposed to chastising other trustees who may be more vocal, but who sort of told the party line about Penn State,” Sanders said. “Either one of those situations could cause Penn State some legal headaches under the First Amendment.”
