rX/

PLC
STUDENT PRESS LAW CENTER
August 14, 2014
Dr. Karen Baldwin, Vice President for University Advancement
The University of Alabama
284 Rose Administration Building
Box 870122
Tuscaloosa, AL 35487-0122
VIA FACSIMILE
Dear Vice President Baldwin,
The Student Press Law Center provides legal research and advocacy in support of
those working in student media nationally. We were concerned to read media accounts
describing restrictions placed on news coverage of sorority rush events at the University
of Alabama, following last years publication of the Pulitzer-nominated investigative
report by journalists at The Crimson White about the role of race in the selection
process.
We have reviewed the memorandum (Guidelines for Media covering Sorority
Recruitment, henceforth simply referred to as Media Guidelines) disseminated by the
Office of University Relations. While it is perfectly legitimate for the University to
remind journalists not to engage in illegal trespassing (i.e., encroaching on front
yards) and to regulate parking and traffic, that is where the Universitys lawful
authority ends.
We are particularly concerned about the directives in the Media Guidelines
purporting to prohibit consensual communications between members of the media and
individual students who may wish to speak with them:
No representative from UA Greek Affairs, the Panhellenic
Executive Council or any sororities will be available for interviews
during Sorority Recruitment Week (emphasis added)
All questions should be directed to University Relations.
No representative from UA Greek Affairs, the Panhellenic
Executive Council or any sororities will be available for interviews on
Bid Day (emphasis added).
To the extent that the University is purporting to use its regulatory authority to restrict
consensual communications between students and the news media about matters of
public concern, such a gag order contravenes basic First Amendment principles.
1101 Wilson BIvd, Suite 1100 Arlington, VA 222092211 B 703807l904 B spIc@splcorg www,splcorg
Government restrictions on contacts with the news media regularly are struck
down in the courts as overly broad and unjustified by any compelling government
priority. See, e.g., Harman v. City ofNew York, 140 F.3d 111 (2d Cir. 1998)
(requirement that employees obtain pre-approval by Media Relations Office of city
social service agency before making contacts with media was unconstitutionally
overbroad); Spain v. City ofMansfield, 915 F. Supp. 919 (N.D. Ohio 1996) (fire
department rules requiring approval before assistant fire chiefs were permitted to speak
out on fire department matters were facially unconstitutional); Wolf V. City of
Aberdeen, 758 F. Supp. 551 (D.S.D. 1991) (municipal ordinance prohibiting city
employees from commenting on internal business decisions or department rules and
regulations without prior approval was unconstitutionally overbroad). See also Intl
Assn ofFirefighters Local 3233 v. Frenchtown Charter Twp., 246 F. Supp.2d
734,
738
(E.D. Mich. 2003) (ordinance designating fire chief as sole spokesman to media was
facially unconstitutional); Wagner u. City ofHolyoke, 100 F.Supp.2d 78 (D. Mass.
2000) (rule barring release of information to the media by all but chief of police or his
designee was unconstitutionally overbroad); Salerno v. ORourke,
555
F. Supp. 750
(D.N.J. 1983) (proscription against jail employee giving information to newspaper
representatives or any other person without the consent of the sheriff is so
overinclusive facially as to be unconstitutional).
While there is ample legal authority that institutions may not enforce blanket gag
orders on their employees, there frankly is scarce legal authority addressing a colleges
ability to gag its students, because to our knowledge no college has been audacious
enough to try. Nevertheless, an institutions control over its employees speech is greater
than its control over student speech, since employee speech is at times regarded as
government speech, see Garcetti v. Ceballos,
547
U.S. 410 (2006), while student
speech is not. Consequently, a policy that would be unlawful when applied to employees
is patently unlawful if applied to students. See generally Tinker v. Des Moines Indep.
Cmty. Sch. Dist.,
393
U.S. 503 (1969) (public school may not restrict or penalize
students in-school speech unless the regulation is necessary to avoid material and
substantial interference with schoolwork or discipline).
We are concerned, as well, about purported restrictions on howjournalists may
approach sources to request interviews. Unless there is a blanket policy that no visitor
may knock on the door of a Greek house, it violates the First Amendment for a
government agency to selectively exclude only journalists. See generally Fell v.
Procunier, 417 U.S. 817 (1974) (holding that, while the First Amendment does not
guarantee the news media preferential access to interview opportunities, the medias
right of access is equivalent to that of the general public). If a member of the public
inquiring about membership or conducting a political survey is permitted to knock on
the door and ask to speak with someone inside, members of the news media may not be
singled out for differentially disfavored access. Of course, members of sororities are
under no obligation to grant interviews and it may be their preference to refuse, but the
decision belongs to them and not to University authorities.
Legal considerations aside, obstructing access to sorority rush events is a
profoundly misguided public-relations strategy that is guaranteed to backfire. If there
was ever a time for greater transparency in the selection process, it is after the integrity
of the process has been discredited. The public has an interest in knowing whether
am-thing has been learned from the events of last year. Canned quotes from a
spokesperson who is not in the room where decisions are made will do nothing to
reassure the public. To the contrary, the Universitys handling of media inquiries smacks
of an intent to conceal and obfuscate.
It cannot go unremarked that the disclosures published in last years Crimson
White article, The Final Barrier, came about because members of Greek organizations
broke ranks and did consent to speak with the news media about the outrages they
witnessed, at times against the wishes of those supervising their organizations. If an
individual sorority wishes to enforce a no-interviews rule with consequences to be
imposed within the sorority, that is a private matter and the misjudgment will be their
private concern. But a government agency cannot, and should not, serve as the enforcer
of a policy calculated to make sure that whistleblowers cannot come forward with
exactly the sort of information on which The Crimson Whites groundbreaking reporting
was based.
It is incumbent on the University to immediately and unequivocally clarify (i)
that students are free to speak with journalists without fear of reprisal from the
institution, and (2) that journalists (in particular student journalists, who are paying
customers entitled to be on your campus) are equally free to contact students to
determine their interest in speaking. We ask that you make a public declaration to dispel
the impression left by the Media Guidelines that the University believes it can enforce a
gag order on its own students.
Respectfully
Frank D. LoMonte, Esq.
Executive Director
Student Press Law Center