Terry Mutchler Comments on Penn State “Gag Rule” for Trustees

Terry Mutchler, Chair of Obermayer’s Transparency & Public Data Practice, was recently quoted by The College Fix regarding Penn State University’s decision to amend a policy restricting trustees from making public statements against the university.

Terry brings firsthand experience to issues involving transparency and governance at Penn State. In a prior matter, where she successfully represented Penn State Trustee Barry Fenchak in litigation seeking access to records related to a $1 billion contract that the university’s Board of Trustees had refused to provide to him. Terry successfully obtained an injunction barring the university from terminating Fenchak while he pursued access to the records. 

The Penn State Board of Trustees voted in July to remove language from its Code of Conduct that prohibited former board members from making “negative or critical public statements” about the university and required trustees to coordinate media interactions with the Board Office. The amendment followed a lawsuit filed by Spotlight PA, the Centre Daily Times, and StateCollege.com, which alleged that the policy unconstitutionally restricted the free speech rights of former trustees. The restriction remains applicable to current trustees, and the litigation is ongoing, with the next hearing scheduled for September 9, 2026.

Terry, a Penn State alumna, said the university’s approach to board communications is fundamentally inconsistent with the principles of free expression.

“For a university – a cauldron of free thought and expression – to censor [the] opinion of its leaders is to skewer the First Amendment, and what our founders penned 250 years ago.”

Terry also questioned the practical effect of requiring trustees who disagree with a board decision to publicly support it once the board has acted.

“A board member can disagree vociferously during a board meeting and vote ‘no’ on a matter, but if approved, they must then say to the public and parent stakeholders: um the board made the right decision. And they can’t disagree? It is absurd.”

Terry said Penn State’s “approach for unified messaging from the Board is misguided and mistaken,” adding that, while she “love[s] Penn State,” the university “can do better.”

She encouraged the trustees to consider the university’s own stated commitment to free speech, pointing to remarks made by Penn State President Neeli Bendapudi in September 2024, when Bendapudi described free speech as “a cornerstone of public universities” that allows institutions to “explore new ideas and challenge old ideas.”

Read the full article here.