Legal experts defend impeached ASU student government senator Isabelle Murray's point of view
USG Sen. Isabelle Murray speaks during a floor debate on her impeachment, Tuesday, Oct. 21. Sen. Murray was impeached for breaking guidelines on speaking to media and for communication issues. (Photo by Ben Moffat)
When Tempe Undergraduate Student Government Sen. Isabelle Murray was impeached, her story became bigger than ASU. News organizations from all over the state and country picked up her case as a possible violation of the First Amendment. Meanwhile, Tempe USG leaders said Murray broke federal law when she shared private information about a student’s open disciplinary case.
The Associated Students of ASU Supreme Court upheld Murray's October impeachment in late November, when the court’s four justices unanimously rejected her appeal.
But legal experts said they are suspicious of USG’s press policies in relation to the First Amendment, as well as the idea Murray violated federal privacy laws.
USG Supreme Court justice Tatiana Jenkins (right) asks a question during a hearing in which former senator Isabelle Murray appealed her impeachment from the Senate. The court rejected Murray’s appeal 4-0. (Photo by Ben Moffat)
The First Amendment
All USG members sign a document that outlines the organization's media policy. It reads, “(Members) must inform President of the Senate or President of USG of intention to address media before making any comments related or unrelated to USG.” Throughout Murray’s impeachment and appeal process, she has cited this rule as a violation of her free speech rights.
“If you have to inform someone, that already changes if you're going to speak to The State Press,” Murray said. “If I wanted to tell The State Press about something wrong Cass Possehl had been doing, or executives, would I then be able to tell The State Press? ... I feel like what I did with the senator was a form of whistleblowing, and I was penalized for it.”
Senate President Will Smith said this expectation is not to impose prior restraint and he has never asked someone to reconsider his or her intention to speak to the press after letting him know.
“I have no ability to do that, nor do I want that ability,” he said. “It’s important for senators to be able to speak about the things they're working on and about their beliefs, because it’s another way for constituents to connect to them. ... What USG is looking for here is that they just let us know, that we’re all in the loop about the kind of information we’re releasing.”
Law professor Paul Bender said the rule seems dubious with regard to the Constitution, though it’s not clear-cut.
USG Senate President Will Smith speaks during a hearing before the USG Supreme Court in which former senator Isabelle Murray appealed her impeachment from the Senate. The court rejected Murray’s appeal 4-0. (Photo by Ben Moffat)
“That sounds like prior restraint to me,” he said. “A legislative body cannot constitutionally restrict its members when they can contact the media. If it just wants her to tell them she’s going to do it, and they can’t stop her, then it might not be a First Amendment violation. ... Even that could be a prior restraint because it deters you from going to the press, but a plausible argument could be made that a notification requirement would be OK.”
Bender said even if Murray were to knowingly waive her constitutional rights by signing this document, it would not be valid because of her position as a student representative. Murray contends that she never actually signed a copy with the media rule but that she instead received a different version.
“The purpose of (Murray’s free speech) is not just for her benefit, but it’s for the student body’s benefit, so she shouldn't be allowed to waive a right that is for the student body’s ability to know what’s going on,” Bender said. “If they're going to call it a legislative body, then I think they have to let the members of the body speak to the press.”
Frank LoMonte is the executive director of the Student Press Law Center, a Virginia-based nonprofit organization dedicated to preserving free speech rights on school campuses. The SPLC published an article about Murray’s case after her impeachment.
LoMonte said Murray’s story caught his organization's attention of his organization because there clearly was a First Amendment question at stake.
“The idea that an elected official could be punished for an unapproved conversation with a journalist goes right to the heart of basic First Amendment values,” he said. “If the First Amendment protects anything at all, it’s the ability of journalists to bring the public information about the policies of the elected officials. Each official has a personal and individual responsibility to be answerable to the constituents, and if you start funneling their comments through a central approval process, then the voters are never going to figure out how well they are being represented.”
LoMonte said even just a notification of intention to speak to the press is a First Amendment violation.
“Even just requiring a check in, it inhibits free expression because it gives the impression that the higher-ups have some degree of control over when, where and how you can speak,” he said.
Tempe USG President Cassidy Possehl said ASU is not alone in asking its senators to notify their superiors of intentions to speak to the media, as many other universities and organizations have similar policies in place.
“When you have an organization ... there has to be some kind of check and balance for understanding information, when it’s about to go to the media or go public,” she said. “That’s why all companies have a PR team. ... If students really have an issue with that, with us making sure our senators are always presenting themselves in the most professional and ethical manner, then I would ask them to reconsider what they really want from a student government.”
Leaders from student governments at Stanford University, Ohio State University and UA all said though they prefer to have student representatives notify them of their contact with the press, they have no written guidelines and would not penalize students for speaking to the press without letting them know.
An executive staff member in Pennsylvania State University’s undergraduate student government said his organization has little to no media regulation in order to keep operations as transparent as possible.
Federal privacy laws and University policies
Smith said even though Murray had previously been on probation and had previously spoken to the media without notifying him, it was her release of information involved in another student’s disciplinary case that truly caused her impeachment.
"What actually ultimately led to the impeachment ... had nothing to do with any release of information; it had more to do with the kind of information that was being released," he said. “It violates privacy laws within the University as well as (the Federal Educational Rights and Privacy Act); the disclosure of disciplinary action taken by a student is in violation of that."
FERPA protects confidential documents within the University’s central database from being shared without students’ permission. Files must be designated as FERPA documents in order to fall under the law, and only the copy of the document within the school’s possession is protected.
Murray was forwarded an email, considered to be highly offensive, by the student who received the email, which was sent from former Tempe USG Senator Jack Tyo’s account. Murray then took screenshots of the email and sent them to The State Press.
ASU’s Office of Students Rights and Responsibilities, which was in charge of mediating Tyo’s case, said in an email to Murray that she did not violate FERPA.
Dean of Students Kevin Cook confirmed this.
LoMonte said it would have been virtually impossible for Murray to violate FERPA in this case because she did not obtain the email from university records.
“The fact that those emails might be the base of a disciplinary complaint doesn't mean every single person who has a copy of that email is in possession of a FERPA record,” he said. “The only FERPA records are the files sitting in the Student Affairs Office and the piece of paper in that file. If I happen to have a second copy of that document, I’m free to share that document.”
With regard to the University’s privacy policies, within the Student Code of Conduct, the Office of Student Rights and Responsibilities specifically designates all documents gathered in the decision-making process of a disciplinary case as a FERPA record. However, because Murray was given a copy of the email in question and thus did not violate FERPA, she in turn did not violate the Code of Conduct.
Former USG Tempe senator Isabelle Murray poses for a portrait at her office in the Memorial Union on Tuesday, Nov. 18, 2014. Isabelle Murray is currently in the process of appealing her impeachment. (Photo by Andrew Ybanez)
Murray’s appeal process may have been completed in late November, but outside of ASU, her case is still being discussed.
She said a representative from the American Civil Liberties Union contacted her about her case but declined to elaborate on the degree of their communication.
Many have argued against Tempe USG’s media policies, citing it as an infringement on the First Amendment, while others within USG have said Murray’s motives for sharing information about Tyo’s case were purely political.
All in all, while much of Murray’s story remains up for debate, LoMonte said there is one piece that should be laid to rest once and for all.
“They can argue whether or not it was a good idea that she shared these records, but I don’t think they can argue that she actually broke federal law,” he said.
Reach the reporter at firstname.lastname@example.org or follow her on Twitter @MahoneysTheName