STATE COLLEGE — Penn State’s Board of Trustees has lifted a “gag policy” on emeriti members that prevented them from freely speaking to the public and the press, a move lawyers for the board’s leadership say should resolve a First Amendment lawsuit brought by Spotlight PA and two other media outlets.
However, in a reply brief, lawyers for the newsrooms say the change didn’t fix the underlying problem and argue the “Board’s last-minute amendment to the Bylaws … is a transparent attempt to evade review of the Board’s unconstitutional policy.”
Two First Amendment experts also told Spotlight PA that the move seemed deliberate.
In the lawsuit filed in federal court in late May, lawyers for Spotlight PA, the Centre Daily Times, and StateCollege.com argue the board’s bylaws contain a “gag policy” that unconstitutionally restricts trustees from making negative or critical public statements about the board or Penn State and requires all press interactions to be precleared by the university’s public relations office.
The news organizations are represented by the Reporters Committee for Freedom of the Press and the Cornell Law School First Amendment Clinic. The newsrooms’ lawyers have requested a preliminary injunction, or temporary order, to block the “gag policy” as the lawsuit plays out.
The lawsuit names board Chair David Kleppinger, Vice Chair Richard Sokolov, and governance committee Chair Daniel Onorato as defendants in their official capacities, identifying them as the leaders responsible for overseeing and enforcing the policy.
Wyatt DuBois, senior director of university public relations, previously told Spotlight PA in an email that the university “does not comment on pending litigation.”
Trustees who violate the policy can face disciplinary actions, including potential removal from board committees — creating what the lawsuit describes as a “chilling effect” on those who might otherwise speak out.
The lawsuit highlights the experience of Emerita Trustee Alice Pope, who in May 2025 received a warning letter from board leaders after she publicly criticized plans to close seven of the university’s 20 commonwealth campuses. In a declaration, as part of the lawsuit, Pope characterized the letter as a formal reprimand that threatened her committee standing.
“By silencing individual trustees, the Board deprives the public and news organizations of critical information about how Penn State is governed — a direct violation of the First Amendment right to receive information,” according to the lawsuit.
Fewer than two months after the newsrooms sued, the board took action.
On July 17, the board unanimously voted to exempt emeriti trustees — former long-serving board members with honorary, nonvoting titles — from the speech restrictions targeted by the lawsuit. Just days later, on July 21, lawyers for the board leaders filed an opposition brief to the newsroom’s motion for a preliminary injunction.
“Because the Code of Conduct no longer applies to emeriti trustees, Plaintiffs no longer have any live injury, their claims are moot, and their request for preliminary relief must be denied,” according to the filing.
The bylaw update was part of an ongoing effort to limit the role of emeriti trustees, the court document says. However, two First Amendment experts say the quick turnaround between the board’s vote and the opposition brief points to a deliberate tactic.
“There are two ways to interpret this,” Amy Kristin Sanders, an expert on government transparency and a professor of First Amendment studies at Penn State, told Spotlight PA in an email. “Either the Board of Trustees didn’t carefully consider the policy the first time around … or it was a specific tactic to try to get rid of pending litigation. I tend to think it’s probably more the second because of the timing.”
Anne Marie Tamburro, a media and transparency attorney with the Society of Professional Journalists, told Spotlight PA in an email that she also thought the move was intentional.
“To me, it looks like the board leadership saw a loophole to undermine standing by nullifying the willing speaker and jumped at the opportunity,” she said.
In their Aug. 14 reply brief, attorneys for the news organizations argued the “gag policy” remains in full effect for the board’s 38 active members.
Invoking the legal doctrine of “voluntary cessation,” the brief points out that courts rarely allow defendants to escape judicial review by altering rules during litigation — especially when the board retains the power to reinstate the restrictions at any time.
Beyond the bylaws change, lawyers for the trustee leadership argue that “Even if this case were not moot, Plaintiffs’ arguments would fail on the merits because they ignore the precedent that governs the trustees’ First Amendment rights.”
According to their opposition brief, the 2006 U.S. Supreme Court decision Garcetti v. Ceballos applies. The ruling found public entities can restrict statements made by employees carrying out official duties.
However, the newsrooms’ lawyers contend the board is attempting an aggressive legal overreach by trying to stretch employee rules to cover independent board members.
When trustees speak as individual citizens on matters of university governance, the reply brief argues, they retain their First Amendment rights — and the public retains its constitutional right to hear from willing, independent sources.
A hearing on the preliminary injunction before Chief Judge Matthew Brann, of the U.S. District Court for the Middle District of Pennsylvania, is scheduled for Sept. 9 in Williamsport.