If Michigan lawmakers tried to punish an elected official for publicly criticizing a new law, everyone would recognize the constitutional problem. The First Amendment does not allow the majority to silence dissenting elected officials for speaking to the public.
That principle should apply just as plainly to Michigan State University’s elected trustees. Yet, MSU is adopting a policy that risks punishing trustees for publicly criticizing the board’s actions. That is not good governance. It is enforced silence.
Instead of trying to foster useful discourse, the board voted 5-3 to approve changes to its ethics code that impose a “principle of loyal opposition.” The revised code tells trustees to raise concerns internally before the board acts. But once the board votes, trustees are expected not to “undermine” the decision and instead support the majority publicly — even when they disagree.
But MSU’s trustees are not mouthpieces for the administration. They are elected officials. Michigan voters put them in office to help govern a public institution. To carry out their role, trustees have to ask questions, explain votes and say when they think the board majority is wrong.
As a matter of good public policy, elected bodies should not demand conformity from their members. And as a matter of constitutional law, if a trustee thinks the board acted too quickly, spent unwisely, hid too much, or ignored co ncerns, they have a right to tell voters.
Ironically, the board’s website currently contains a Statement on Free Speech that recognizes MSU, as a public institution, should promote good-faith debate and must ensure its policies align with the First Amendment’s “vigilant protection” of free speech on campuses.
But a free-speech statement means little if the board exempts itself from the principle. The First Amendment does not protect campus debate while allowing trustees to punish one another for participating in it. The Supreme Court made clear decades ago that elected officials’ speech is at the heart of the First Amendment’s protection. And the court has not hesitated to strike down prior restraints on protected speech in other contexts, such as government efforts to prevent publication of “scandalous” newspaper articles or to allow only “clean and healthful” musicals on a community stage.
The board’s supporters may say this policy is needed because some trustees could be disruptive or unfair. Maybe so. But the answer is more speech, not less. America was founded on the principle of promoting debate in the political arena to sharpen our citizens’ collective knowledge. This kind of debate is not disloyalty — it is “indispensable to decisionmaking in a democracy.”
Ethics rules should protect the public from corruption, self-dealing and abuse. They should not protect public institutions from criticism or make representatives afraid to talk to the people they represent.
This isn’t just a problem at MSU. My organization, the Foundation for Individual Rights and Expression, is fighting the same censorship in court for Gail Nazarene, a New Jersey school board member who faced an ethics complaint simply for asking voters what they thought about a potential school-tax increase.
In both Michigan and New Jersey, voters deserve honest answers from the officials they elect. Any code of ethics that makes those answers harder to give is not ethical at all.
Voters should make clear to MSU that ethics rules must not become gag orders. The board can demand integrity from trustees, but it cannot demand silence. Trustees who answer to the people must be free to speak to the people. That is not a threat to democracy. It is democracy.
Greg Greubel is a Senior Attorney with the Foundation for Individual Rights and Expression.
This article originally appeared on The Detroit News: MSU needs more transparency, not less dissent | Opinion
Reporting by Greg Greubel / The Detroit News
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