Thursday, November 13, 2014

Inside Higher Article on Gag Order

From Inside Higher Ed (
A college tells faculty it's illegal to speak to student journalists

Submitted by Ry Rivard on November 13, 2014 - 3:00am

Administrators at a Florida community college are leaning on faculty and student journalists to prevent coverage of an ongoing labor dispute.

In doing so, they are adopting a questionable interpretation of Florida law that could be used to squelch student journalism in high schools and colleges across the Sunshine State.

Administrators at the 11,000-student Pensacola State College have told faculty members they are violating state law [1] by speaking with student journalists about contract negotiations, which are currently at an impasse.
In response, the faculty union said the administrators are harassing union members [2]. An editor at the student newspaper said the college’s president is also lying about the paper’s reporting.

Administrators at Pensacola are using a section of state code that has been ruled unconstitutional by both a state and a federal court. The code is intended to prohibit unions from using students to promote union activities. If Pensacola’s reading of the law is heeded, the administration’s effort could provide a way to choke off student reporting on labor disputes at educational institutions across the state.

Most journalists would argue that quoting union officials is not equivalent to promoting their cause.

"What we’re trying to ensure is that students are not embroiled in labor matters at an institution and we’re trying to ensure that faculty do not use their position with students,” said Pensacola State President Ed Meadows.

Meadows said he is not sure why it is important for students to put information about the dispute into the paper in the first place. In his view, faculty pay and hours don’t affect students.

The student paper, Meadows said, can write about other things, like student awards, basketball games, crime, opinions and “non-college things.”

If students want to read about the labor dispute, Meadows said, they can read about it in the local newspaper. But he noted that the local paper didn’t pick up a story about the impasse. “If the local media doesn’t find it of interest, then why would students find it of interest, and of what benefit would it be for students to know?”

An editor and reporter at the Pensacola State paper, The Corsair [3], both disagreed. The terms under which faculty work are likely to affect students at the college, they said. 

“The whole thing together could affect the students if it affects the teachers,” said writer Abigail Megginson.
Indeed, faculty and administrator relations are one of the bread-and-butter topics of student journalism.

The controversy began when the paper’s editor, Spenser Garber, began working on stories about the labor impasse. So far, he’s only published one [4]. That was on Oct. 31. The same day, an outside attorney for the college wrote a letter to the faculty union, the United Faculty of Florida. The attorney told the union it was inappropriate for its members to speak with student journalists about union business.

The attorney, Michael Mattimore, cited a provision of state code that forbids unions from “instigating or advocating” support for union activities from K-12 and college students.

“Specifically,” his letter said, “the faculty is seeking to involve the student newspaper, The Corsair, in the ongoing collective bargaining negotiations and the faculty’s actions associated with that labor dispute.”

Mattimore, a former chairman of Florida’s Public Employees Relations Commission, is well-positioned to know about that section of the code. In 1991 – when he was chairman of the commission – the paragraph of state code on which his letter relies was overruled by two courts on the same day, a federal district court and a state court of appeal [5]. The law violated the United Faculty of Florida’s First Amendment rights, according to the twin rulings. The commission, led by Mattimore, was using the law to try to punish the union for purchasing newspaper ads in the student newspaper at Florida International University in an effort to rally students behind the union.

Adam Goldstein, attorney advocate for the Student Press Law Center, said he would assist the Pensacola student newspaper if the college didn’t recognize that its efforts were unconstitutional.  He questioned Mattimore’s letter on behalf of the college’s administration.

“It’s either a case of extremely bad memory or sinister intent – I tend to remember the cases I lost,” Goldstein said.

In an email, Mattimore said his letter did have a footnote making clear his interpretation had been “questioned” by courts, but he said the law – which remains on the books – still “reflects the intent of the authors of the statute.”

“Involving students in a pay dispute is clearly inappropriate,” he said.

Goldstein said laws that have been overruled don’t just evaporate from state code, but that doesn’t mean they can be used or enforced. Florida still has on the books [6] a law that forbids media from naming rape victims, even though enforcement of the law was ruled unconstitutional by the U.S. Supreme Court in 1989 [7].

At Pensacola, President Meadows’s view is that the student journalists are union pawns and coverage of the labor dispute will only “distract students from their studies.”

Meadows said that Garber, the newspaper editor, could not have even begun to look into the matter unless he was approached by faculty. That, in Meadows view, is an unethical action.

Garber said he first heard about the labor dispute from someone who doesn’t even work at the college.
“The faculty definitely didn’t encourage me to do this story. That’s a lie,” Garber said in a telephone interview. After he interviewed faculty, Garber said, he approached the administration for comment. That’s when administrators began to suggest he was acting illegally by breaking an unnamed federal law.

Goldstein, who has spoken with newspaper representatives, said the administration is trying to come at the student journalists in two directions: by choking off their access to faculty and by accusing student journalists themselves of violating fair labor practices.

“I’ve seen a lot of unconstitutional arguments and I’ve seen a lot of silly arguments, but it’s the first time I’ve seen that non-employees are capable of unfair labor practice, which is just a neat trick logically,” he said.

Meadows said even though the administration is not prevented from speaking with students about the labor impasse, he had declined to answer Garber’s questions about the dispute. That, Meadows said, means the paper can’t do a fair story even if it persists in speaking to faculty, because the paper won’t have the administration’s side of the story.

As Meadows said he told the newspaper’s staff adviser, who has since left the college and could not be reached for comment, “Good journalism requires two sides to every story and, unfortunately, I can’t give you the other side."


UFF Response to PSC's Gag Order

Dear President Meadows and Mr. Mattimore:

This responds to your letter dated October 31, 2014, alleging that Pensacola State College  Faculty  Association  (PSCFA)  and  some  of  its  members  violated  Florida Statutes 447.501(2)(f).

We flatly deny that assertion-and any of your other specious allegations claiming that PSCFA or its members have engaged in illegal activities regarding students or the student newspaper.  Contrary to your assertion, no one from PSCFA sought to engage Pensacola State College students or the Corsair in labor relations matters.   Rather, student reporters approached PSCFA and some of our members to conduct interviews about news items of interest to the Pensacola State College community.

In your letter you apparently claim that PSCFA's participation in an interview with a student reporter violates Section 447.501(2)(f), Florida Statutes as "contemplated by the Court" in Board of Regents v. PERC, 368 So. 2d 641 {Fla. 1st DCA 1979).  Accordingly, you demand that the PSCFA "notify all faculty members that they are not permitted to seek student support for union activities."  We respectfully decline.  You also state that "[i]t is the College's expectation that the PSCFA will refrain from undertaking any other actions that violate [Section 447.501{2)(f).]"  As previously mentioned, your letter mischaracterizes the nature of the PSCFA's and our members' actions.  Nevertheless, we have not-and agree that we will  not-undertaken actions that  violate Section 447.501(2)(f), Florida Statutes.    Indeed, the actions you suggest would not  violate Section 447.501(2)(f) as the provision at issue has been found unconstitutional on its face and without any force or effect.   United  Faculty  of  Florida  v.  Florida  Board  of Regents,  585 So. 2d 991 {Fla. 15t DCA 1991).   In that case, the court found Section 447.501(2)(f) to be "both a content-based and viewpoint-based restriction on speech," and  that  it  restricts  speech  based  on  the  identity  of  the  speaker.    ld.  at  994. Accordingly, the court declared Section 447.501(2)(f) "facially unconstitutional" and that it "unconstitutionally abridges" First Amendment right to free speech, and it ultimately enjoined PERC from enforcing the provision.1    ld. As you should know, subsequent cases have repeatedly noted that Section 447.501(2)(f), Florida Statutes, has been declared unconstitutional and, thus, has no force or effect.

Your assertion that PSCFA or its members violated Rule 6A-10.081(3)(h), Principles of Professional Conduct for the Education Profession in Florida is similarly misplaced. Even if the provision applied to the college faculty context here-which it does not-the actual facts have no relation to "exploit[ing] a relationship with a student for personal gain."        Specifically, PSCFA and  its members  participated in a news interview and provided  requested  factual   information  about  the   status   of   negotiations.  That participation has absolutely no relation to the provision at issue, not to mention the fact that PSCFA's participation in these interviews is a protected legal right.

Nevertheless, I have serious concerns about your efforts to not only bully PSCFA and its members, but also your apparent efforts to harass student reporters. Student reporters have the unfettered right to speak with whomever they wish in pursuing a news story. And public colleges cannot attempt to control, manipulate or punish student

reporters or newspapers.  See, e.g., Joyner v. Whiting, 477 F.2d 456 (4Cir. 1973) ;

Schiff  v.  Williams, 519 F.2d  257  (5th  Cir.1975); Leuth v. St.  Clair  County  Comm.
College, 732 F.Supp. 1410 (E.D.Mich.1990); Kincaid v. Gibson, 236 F.3d 342 (6th Cir.
2001)(en bane). Simply put, it is my opinion that the College may be harassing student reporters and interfering with protected First Amendment press rights by giving them "cease and desist" letters prohibiting them from reporting on collective bargaining with College faculty.

Your interpretation of Article 6 of the CBA, though creative, is just as erroneous as the other proclamations in your letter.   The provision that you reference is simply not applicable to the matters at issue.  As you are (hopefully) aware, the last sentence of Article 6.02 addressing academic freedom specifically provides that:

Faculty  members  are  entitled  to  that  freedom  of  association  and expression which is guaranteed to all persons by the First Amendment to the Federal Constitution.

The CBA is clear that faculty retain all their constitutional rights and the courts have consistently ruled in favor of those rights.

Finally, I must say that I am troubled by your apparent attempts to extinguish protected rights in a harassing, intimidating, and coercive manner.  Your October 31 letter is only the latest in a series of underhanded attempts to suppress our members' constitutional rights by creating an atmosphere laden with fear of reprisal.  The animosity toward
PSCFA evident from the actions of the College, coupled with the frivolous claims, allegations and demands in Mr. Mattimore's  letter, are creating a chilling effect on faculty members who engage in protected activity.   It is UFF's expectation that the College will cease and desist with its harassment of PSCFA members and that it will refrain from undertaking any other actions violating the law, including, but not limited to, the United States Constitution, the Florida Constitution, and Chapter 447, Florida Statutes, and that the College will notify all faculty members and students that it will not undermine these protected rights.

 Based on the court's treatment of Section 447.501(2)(f), you certainly took creative liberty by mentioning in your letter that "courts have questioned its constitutionality."  A more accurate statement would be that courts have declared the provision "facially unconstitutional."  As an aside, I am a little puzzled by Mr. Mattimore's mischaracterization of the court's treatment, particularly since the case where the statutory provision was declared facially unconstitutional had specifically rebuked and overruled the lower PERC decision with Mr. Mattimore as the chairman.