Brechner research finds “no-interviewing” policies at private colleges commonplace but doubtfully legal
Private employers of all kinds, including universities, commonly forbid their employees from discussing work-related matters with journalists without prior approval. But a new analysis by Brechner Center researchers finds that broadly worded workplace “gag orders” are likely invalid and unenforceable under federal labor law.
In an article for The Journal of Academic Freedom (“Stopping the Presses: Private Universities and Gag Orders on Media Interviews”), Brechner Center attorneys Frank LoMonte and Linda Riedemann Norbut analyze decades’ worth of cases from the National Labor Relations Board (“NLRB”) in which employees have challenged their employers’ rules against giving interviews to the news media.
The authors looked at every case in which the NLRB, or a court reviewing an NLRB decision, has considered the legality of an employer’s policy that forbids discussing work-related matters with journalists. They found that, almost without exception, these policies have been struck down as a violation of the National Labor Relations Act (“NLRA”), which protects the rights of non-supervisory employees in large private-sector workplaces to speak out about workplace conditions.
For instance, in a 2014 ruling, the NLRB ordered petroleum giant Phillips 66 to stop enforcing a rule against discussing “company operations” with the media, finding the policy to be an unfair labor practice.
(The NLRA applies only in the private sector; the First Amendment, which applies only in the public sector, has been interpreted to similarly protect government workers against broad gag orders.)
LoMonte said that employees who are told they’re banned from giving interviews without supervisory approval should ask to see, in writing, where that policy exists, and consult legal counsel if the policy appears overly restrictive.
As the article explains, the public’s interest in complete, accurate news coverage is dis-served when journalists cannot get access to the employees with firsthand knowledge about their companies:
The rank-and-file university employee—a police officer, a laboratory technician, a maintenance worker—is often in the best position to provide informed firsthand information, but employer gag orders make that impossible. When information is instead filtered through a university’s media relations office or general counsel, it is more likely to be inaccurate, incomplete, or sanitized
The Journal is published by the American Association of University Professors, a nationwide organization dedicated to promoting principles of academic freedom and shared governance in higher education.
The research is part of the Brechner Center’s “Government Gagged” project, which focuses on improving journalists’ access to news sources at the institutions they cover.