Labor Department's Threatens Criminal Charges for Talking; And Other Indicia of Where We Are

The Labor Department (of all agencies!) is threatening to bring criminal charges against employees who talk to reporters: Labor Department Says Staff Could Face Criminal Charges for Leaks — ProPublica

---The Small Business Administration is investigating staff for talking to the press or former colleagues.

---Michael Lewis' popular new book, "Who is Government," mentions the months-long effort he was forced to go through with FDA's communications department to talk to public servant Heather Stone for one of his profiles. How have journalists come to the point of referring to tyrannical suppression just in passing? And this from an agency that holds our lives in its hands. 

If CDC Messaging Is Bad Now, It's Enabled by a Long-Accepted System of Controls

There's been a surge in federal agencies and many other entities banning employees from speaking to journalists without notifying authorities or public information officers."

Now it belongs to the current administration.

The Washington Post published my letter to the editor on April 10.

To Journalism History Meeting: Gag Rules, Censorship by PIO and Slide into Authoritarianism

This is the written version of my talk to Joint Journalism and Communication History Conference, March 28.

Since the 1980s there has been a surge in federal agencies and many other entities banning employees from speaking to journalists without notifying authorities, often through public information officers. Often reporters are not allowed speak to the person they request at all.

Glen Nowak, a former Chief of Media Relations at the Centers for Disease Control and Prevention with many years at the agency, has said that presidential administrations have handed down restraints on what may be said and who reporters may talk to, with intense examinations of individual contacts; that the rules have tightened with every president since at least Clinton; and that the controls are explicitly political. Nowak said, “Government and elected officials have seen that controls make it harder,” for journalists to do stories officials don’t like, and therefore they “diminish the visibility and prevalence of those stories. So, from their perspective, it works.”

I have been on the Right to Know Committee of the Association of Health Care Journalists since a decade prior to the pandemic. Things were so bad that the committee members regularly met with the HHS Assistant Secretary for Public Affairs to request that reporters be allowed to speak to the HHS staff members whom they requested after going through the censorship process, starting with the public information office.

On the Committee we argued with each other repeatedly because I said we should be pushing for unfettered contact, with reporters contacting who they wished without notifying any authority. I was told that we could not possibly ask for that. That would be just a game stopper from the outset.

Look at that, please: The press is supposed to be watchdogs for the public.

In reality, we cannot, and we did not, even approach the authorities to ask if we might talk to people normally. That includes people in our major institution in charge of preventing mass death from infectious disease.

As a reporter who spent over 14 years talking to federal staff before the PIO/guard system was implemented, I have zero doubt that the manipulation and blockage in the later years was one cause of the poor performance that exacerbated the pandemic. Given the deadly history of information control, why wouldn’t it be?

I want to be direct about what my real question is: Why isn’t this apocalyptic?

The blockages are still in effect in HHS, meaning that all 80,000 staff are under these constraints not to speak to reporters, even as future catastrophes are inevitable.

These controls have also become quite common in agencies and other entities across the country. The Society of Professionals Journalists sponsored surveys from 2012-2016 of the restraints in federal, state and local governments; education; science; and police departments. They showed the controls were pervasive.

SPJ and other journalism groups have opposed the controls for over a decade. Letters signed by up to 60 groups have gone to the last three administrations. SPJ led a group of journalists to talk to people in the Obama White House in 2015.

In an important development, foundational thinking for journalists themselves taking legal action against constraints was provided by First Amendment attorney Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association.

LoMonte said: “Media plaintiffs should be able to establish that their interests have been injured, whether directly or indirectly, to sustain a First Amendment challenge to government restraints on employees’ speech to the media.”

Last year investigative journalist Brittany Hailer won a settlement, with strong First Amendment language, supporting employees’ and contractors’ right to speak to reporters. Hailer had filed action against the don’t-talk restrictions in the Allegheny County Jail in Pittsburgh, which had an alleged high rate of inmate deaths. Last month a second excellent ruling came down, allowing a New York newspaper to move forward with such a case.

Many attorneys and others had previously thought journalists could not bring such cases against gag rules on their own accord.

Nevertheless, few journalists or news outlets have taken serious action against these constraints. With amazing consistency journalists say something like, “Good reporters get the story anyway.” This is in the face of the fact that many stories on malfeasance emerge only after many years of harming people, public programs or our way of life.

The New York Times published the story about the fact the head of the FDA medical device division had worked under important conflict of interest for 15 years.

Look at that the other way around: For 15 years the entire press corps was oblivious to that situation that many people certainly knew about.

Maybe it’s critical that we should go back to talking to people without the authorities’ interference?

In other examples, for at least 20 years people were tortured by a Mississippi sheriff’s department “goon squad.” There were major problems with the overseas manufacture of generic drugs. It took the author 10 years to get the story, she said, in part because FDA scientists could not speak. The first Trump administration’s plan for separating children from their families was put together while reporters were not allowed in HHS. The Atlantic’s Pulitzer Prize-winning story got the details five years later.

It’s my estimation that the majority of enterprise or investigative stories--- impressive though they often are---cover things that have been successfully kept out of journalists’ sight for a long time.

We get stuff, despite the controls. Journalists often get impressive material: careful, truthful, and addressing things the public want to know.

However, how do we know we get five percent of what is 1) important and 2) not open to us, particularly with the authorities mandating that we never hear a word without their controls on it?

Why do any of us think so?

The press critic Jay Rosen says, “The news system is not designed for human understanding. Even at top providers, it's designed to produce a flow of new content today--and every day."

It’s like reeling in fish over a 25-foot wall. We know nothing about the ocean, we can’t even see it or much of what is in it, but we get more than enough nice stuff to make a living. So we don’t fight the wall.

Much more work is needed on how the journalism culture of acquiescence to these controls has arisen, the impact it has on democracy and human welfare, and the question of whether it is enabling autocracy.

I’d just beg that people ask these questions quickly because right now insiders are silenced even as humans endure oppression, and the catastrophes, like maybe a larger pandemic, are headed toward us.

The Long, Solid Precedent for Muting Officials: Please Say It

This was sent to the publisher of the New York Times on January 31 and the NYT staff thereafter. There was no response as of February 9.

Mr. Sulzberger:

The article, Trump Administration Temporarily Mutes Federal Health Officials - The New York Times, is frighteningly misleading.

Over the last several decades federal agencies and many other employers have instituted gag rules that ban staff from speaking to reporters or ban any such contact without involvement of public information officers or other authorities.

Why are we now talking about the officials blocking the official publications and not mentioning the long-time gags on employees that are so damaging? Are the gag rules not authoritarian restrictions?

The world lost an estimated seven million people to the Covid epidemic after blunders by an agency that had intensely fended off reporters’ newsgathering for years, as it pleased or as its political minders mandated. A former CDC communications head has chronicled how the controls became worse from one administration to the next as there was no push back and the press said little.

Now other catastrophes are looming, some which could be existential threats to humanity, and 80,000 people in HHS are still gagged. Why is that not a news story?

Of course, that’s not even the beginning of the gag rule culture this nation has built.

Reporters who were working before the controls’ implementation know that the story often looks different when people can talk without guards on them.

If and when the federal health and science publications are once again distributed, they will have a tragically high likelihood of being politically controlled, not only because the Trump administration is in power, but also because these restrictions have been growing for decades and behind those curtains people can control information at will.

Things to Know About the Fight Against Gag Rules:

Last April investigative journalist Brittany Hailer won a favorable settlement, with strong First Amendment language, supporting employees’ and contractors’ right to speak to reporters. Hailer had filed a legal action against the Allegheny County Jail in Pittsburgh, which had such restrictions even in the face of an alleged high rate of inmate deaths.

Hailer’s settlement was a breakthrough because many people had previously thought that journalists could not bring such cases against gag rules on their own accord.

The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press filed the suit on behalf of Hailer, whose reporting was funded in part by The Pulitzer Center.

Foundational thinking for such cases was provided by a 2019 report by prominent First Amendment attorney Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice.

In a summary report, LoMonte said of the constraints: “Media plaintiffs should be able to establish that their interests have been injured, whether directly or indirectly, to sustain a First Amendment challenge to government restraints on employees’ speech to the media.”

Nevertheless, various authorities are very convinced they need this mechanism of enforcing the censorship.

Further resources are here.

Will the New York Times tell this story?

Kathryn Foxhall
SPJ member

cc. New York Times Staff

Why Aren't We Scared Yet? Instances of the Gag Culture

Below are some sample indications of gag rules instituted around the country, most found through searches on the database Nexis. Actually, I think the number of gag rule stories that can be unearthed is limited only by the time anyone can spend on such a database.

Seriously, how does this compare with a dictatorial culture? How do we assume that the press gets most of the information critical to people?

---“Key Biscayne Manager Steve Williamson instituted a sweeping gag order on employees speaking to the media this month,” said the Key Biscayne Independent on Dec. 22. The news outlet says the gag order, “comes after some tough news stories for the Village [of Key Biscayne] in the past year.”

The policy, as reproduced by the Key Biscayne Independent, said, “Village of Key Biscayne staff will not communicate in any manner with any media entity without the approval of the Village Manager and/or the Community Engagement and Communications Manager.”

When the story became a point of discussion on LinkedIn, some city managers said they concurred with the policy as a way to prevent misinformation, that it is not a free speech issue, or having employee groups open up is a recipe for disaster.

---The Prison Policy Initiative on Dec. 13, posted a look at gag rules in prisons and, “reviewed research from the Society of Professional Journalists and from Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice, to show how common and far-reaching these gag rules are in the criminal legal system.”

The article says that although the policies are quite common, they are unconstitutional and unenforceable.

---Newsgathering gets complicated when employees and leaders won’t speak to the media and the city tells journalists, “Not to contact staff members directly,” said Myrtle Beach Online , Nov. 19.

The article says, for instance, Georgetown County’s policy says, “only approved spokespeople can speak directly with the media, including the county’s public information officer, the county administrator and directors and their designees.”


--- The Chronicle-Tribune of Marion, Indiana, made a public records request for any written guidelines and polices for city employees interacting with the media, according to a December 2 article. The paper said it made the request, “because every time it tried to speak with a city employee, it was directed to speak to the mayor instead, even if it was on a matter that the city employee was more equipped to answer. Not only was the paper redirected to the mayor, city employees said they needed to get interviews approved by the mayor.”

The mayor eventually told the newspaper that, “the city's supervisor of marketing and community development, is the new point of contact for media questions.”

To the White House about Public Participation: The Corruption of Government Gag Rules

To the White House Office of Management and Budget:

The Bans on Staff Members Speaking Freely to Journalists Are a Great Risk to Us All

I am commenting on the “Draft Public Participation and Community Engagement (PPCE) Guidance and Toolkit.”

Over several decades, agencies and offices in the United States have begun prohibiting employees and subordinates from speaking to the press without involving the authorities, often through a public information office. Related barriers include blocking requested contacts or delaying them until the reporter gives up; limiting the number of briefings; limiting briefings in terms of time and questions permitted; and not allowing the spokesperson’s name to be published.

Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the elimination of such restrictions in the federal government.  We received no response although we followed up several times.

These restrictions on contacts with journalists have been adopted as policy in most federal agencies, without any substantial public discussion of their impact. (See the collection of media policies.) They are also in entities, public and private, from Congressional agencies to local police departments.

Journalists can take pride in some excellent journalism that is published. However, these constraints are information control by people in power, one of the most dangerous things in human societies. They are routinely successful in keeping information away from the press and thus away from nearly everyone. They are dictatorial and an ongoing menace to public welfare.

They are a strong foundation for future increases in authoritarian restrictions.

I understand the need for agencies and other entities to have an official avenue for the release of official information. I know some things are legitimately confidential. I appreciate the need for both staff and journalists to distinguish between statements that are official policy and those that are not.

I also recognize that in this fraught time of misinformation, disinformation and attacks on agencies, officials face many difficulties in putting out honest messages and moving forward with their organization’s work.

Nevertheless, journalists know there is always perspective, background, and tips that source people will not mention when they are under the power structure’s scrutiny.

We also know these controls can become political.

Former CDC media relations head Glen Nowak has said the agency’s controls began with President Reagan. Each new administration realized the constraints had not caused the previous administration serious political consequences and proceeded to make the rules more controlling.

Nowak said: “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: how will this help or not help when it comes to running for election…. A serious health threat can be underplayed or ignored if it doesn’t align with political ideology of the party in power, or a party is trying to get power.”

I feel certain that if reporters, from mainstream or specialized outlets, had been able to talk normally with CDC staff, some of the disfunction in the agency would have been corrected prior to the pandemic. It is extraordinarily shameful that did not happen.

The OMB draft guidance document says, “The promise is to keep the public informed and provide accurate and transparent communications from the agency.”

However, members of the public are at severe disadvantage when they are allowed to know only what officials decide may be released.

Please note:

-- The Brechner Center for Freedom of Information provided foundational thinking on these restrictions in a 2019 report. It says these constraints are unconstitutional, that many courts have said so, and that journalists are able to bring their own legal actions. A shorter version of that report is here.

-- In a groundbreaking case, journalist Brittany Hailer sued the Allegheny County Jail in Pittsburgh which prohibited even medical personnel from talking to reporters, although a high death rate was alleged. In April, Hailer, represented by Yale Law School Media Freedom and Information Access Clinic and the Reporters’ Committee for Freedom of the Press, won a favorable settlement with strong First Amendment language supporting employees’ and contractors’ right to speak to reporters.

I am asking the White House Office of Management and Budget these questions:

---How can these restrictions be legal, ethical or democratic?

---How do they compare to speech restraints in undemocratic regimes?

---Are they not dangerous to the public, given that information is blocked on the work to protect public welfare?

Further information is available from this resource listing.

Thank you.

Kathryn Foxhall

2021 SPJ Wells Key Awardee for work against restraints on reporting


Resources:

-- An article in the Columbia Journalism Review is on the history of this trend which has made the gag rules pervasive in many kinds of entities.


-- The Society of Professional Journalists has said the controls are censorship and authoritarian.

-- The New England Chapter of SPJ sponsored a Zoom program on the Allegheny suit, moderated by First Amendment attorney Frank LoMonte, who has written a  legal pathway for such actions. 


-- A Maryland, Delaware, and District of Columbia Press Association podcast episode features the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 

-- Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the elimination of such restrictions in the federal government. 

-Journalism groups’ FOI officers told  the New York Times, “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here. 

-A review of actions is in the PR Office Censorship blog.

To CDC: Please Confirm: Controls on Reporters During The Pandemic

Open Letter to Dr. Cohen

Dr. Mandy Cohen
Director,
United States Centers for Disease Control and Prevention

Dr. Cohen:

I was for 14 years (1978-1992) editor of The Nation’s Health at the American Public Health Association. I was honored to know some of the public health greats of the 20th century. I count myself second to no one in admiration of public health: the triumphs, the science, the effectiveness of population-based care, and especially the professionals, many of whom are devoted, indeed personally captured, by public health’s criticality.

In recent years I have served as a point person for the Society of Professional Journalists and others in opposing the gag rules culture that has grown up in the U.S., as people in power silence employees and others.

I have harsh but necessary questions, including why the restrictions on journalists’ newsgathering, now at CDC and many other entities, are not human rights abuse and inevitably a mass degradation of public welfare.

Some decades ago, agencies began to ban employees from speaking to reporters or ban them from doing so without the authorities’ involvement, often through a public information office. Other controls were built using the gag rules as foundation, including limiting official briefings and having PIOs sit in and guide contacts.

Glen Nowak, a former CDC communications director with many years at the agency, had laid out the issue for journalists: presidential administrations hand down instructions on who reporters may talk and what may be said; the controls have been tightened with every president since Reagan; and they are explicitly political.

Nowak said, “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: ‘How will this help or not help when it comes to running for election? How will this help maintain or grow support?’”

“Government and elected officials have seen that controls make it harder to do [stories those official don’t favor] and diminish the visibility and prevalence of those stories. So, from their perspective, it works,” he said.

Over more than 30 years the controls expanded with little public discussion of their legitimacy or impact. Many journalists saw this transition take place.

CDC routinely fended off public scrutiny according to the thoughts or inclinations of a few people. Then we discovered the agency was not ready for an infectious disease crisis, a key reason for its existence.

These restrictions block information gathering by prohibiting staff from talking confidentially to journalists; by making any contact with staff so cumbersome it is often infeasible; by deliberately blocking contacts altogether; and by using this power over contacts for political purposes.

Some journalists and others have been fighting these restraints for years.

Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the restrictions’ elimination in the federal government. 

Journalism groups’ freedom of information officers told the New York Times, “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here.

Prominent First Amendment attorney Frank LoMonte, who has done extensive research on these controls, says they are unconstitutional, many courts have said so, and journalists can bring their own legal actions.

This year reporter Brittany Hailer won what is apparently the first legal settlement for a journalist against these prohibitions in a public agency.

Information control is one of the deadliest things in all human history given suppression of information for personal gain and accountability avoidance, propaganda to support many things including military conflict, discrimination, genocide, etc.

It is the antithesis of public health.

Questions to CDC for The Record:

In full recognition of the fact that free speech in agencies and elsewhere can be seriously problematic, is there any evidence in history that such controls on newsgathering are better for human welfare than unfettered speech and newsgathering?

Would you confirm that during the entire official period of the Covid public health emergency, and many years prior, journalists were not allowed in CDC facilities with possible exceptions for meetings or when they were escorted?

Would you confirm that also during that period contact was banned between journalists and employees without authorities’ involvement, often through the public information office?

Would you confirm these constraints are in great part mandated by the political administrations?

Would you confirm that such issues as whether a contact with a journalist will take place and what may be discussed are controlled by the Office of the Assistant Secretary of Public Affairs, people in the White House or other political officials? Consistently or often?

Is there any type of independent observer who is within the agency or who has free access to contact agency employees? For instance, do we have many inspectors-general or other such personnel focused on the agency? Are there any such persons who can closely observe the agency for accountability purposes?

Why wouldn’t the restrictions on the press be one key cause of the missteps that exacerbated the pandemic? Weren’t staff members who were expert in this field, including the lack of readiness, blocked for years from speaking to journalists or blocked from doing so without the involvement of the authorities?

What are the bioethical implications of withholding information from the public and don’t these restrictions on speech inevitably withhold information? Are these restrictions, covering so many issues, so many potential speakers over decades not the equivalent of myriad Tuskegee experiments?

What right does any group of people have to control the speech of others outside of defined, narrow circumstances such as privacy protection or national security?

CDC has spoken repeatedly about rebuilding trust with the public. I deeply regret to ask: Is it not a citizen’s critical responsibility to avoid trusting powerful entities that control information about themselves, or have such curbs imposed on them? Is such skepticism not especially essential when any entity is responsible for human welfare?

Will CDC call for an independent examination of how the controls on the press affect public health, including how the current norm of prohibiting speech by people across the federal government and in all kinds of entities, state and local, public and private?

I’m asking for answers on the record for commentary, for professionals young and veteran, for historians and other researchers.

I’m attaching a background paper.

I’d be happy to talk with you or any of your staff.

Thanks for your attention.

Kathryn Foxhall
SPJ 2021 Wells Key Awardee
For work against gag rules


CC:
CDC Communications and Other Staff
The CDC Director's Advisory Committee

Caroline Hendrie
Executive Director
Society of Professional Journalists

Ashanti Blaize-Hopkins
President
Society of Professional Journalists