Department of Commerce Has New Importance and Heavy Clearance for All Communications

Due in part to new attention to Artificial Intelligence, the Department of Commerce, has new visibility.

Commerce, with a budget of about $15 billion, is the parent agency of the Bureau of Economic Analysis; the U.S. Census Bureau; the National Institute of Standards and Technology; the National Oceanic and Atmospheric Administration; and other entities.

The department sent a memo last year stressing to employees that the Office of Public Affairs is responsible for coordinating Department communications, saying that requirement, "helps to ensure consistency of message and to maximize the impact of our efforts.”

It also said such coordination, “helps to avoid surprises, whether for the White House, the Secretary, or other Department senior staff.”

I contacted numerous people in the department over several months, including the Secretary's office, asking if such restrictions on speech would not slow or block information and, in effect, ban public knowledge of dissent within the Department.

I have not received a reply.

Why wouldn't such heavy suppression of speech by people dealing with issues such as AI not leave holes in what we understand?

My letter to Commerce is below.

Secretary Gina Raimondo
The U.S. Department of Commerce

Madam Secretary:

Your Freedom of Information office supplied me with the memorandum, “Clearance Guidance for Communications," now copied on here.

The FOI officer said the date is January 26, 2023.

Apparently, the policy, in effect, directs employees to have no conversations with reporters without involvement by the public information offices.

A number of journalism organizations have opposed these type policies for many years.

Among other problems, there is always information that will come out only by people speaking to journalists confidentially, something the Commerce policy would prohibit.

I’m doing an article about this policy for journalists and others and I wanted to ask you to comment.

Are you not concerned that the restrictions on speech between reporters and employees will slow or effectively block the flow of important information to the public, to experts inside and outside the department, and even to yourself?

In this time when your department is taking an important role in artificial intelligence, among other issues, will these restrictions be a factor in hampering the understanding of what is happening with such things? (A New York Times’ article asserts nations are losing a global race on A.I harms.)

The memorandum expresses concern about ensuring “all communications reflect a whole of Commerce approach that will keep us aligned….”

Does this in effect ban the public’s knowledge of dissent?

The memo indicates concerns about coordinating communications, not having units within the Department competing for news coverage and avoiding surprises for the White House, or other leadership. Other agencies cite similar concerns.

Can such concerns justify having people in positions of power controlling information? Has that not been one of the most damaging things in human history?

Many leaders would want to have an official avenue for the official story. However, does that necessitate blocking all other avenues? Do Americans want only controlled messages? Is it best for science or other understanding?

How is it responsible for any of us to trust public welfare to a human institution that is intensely controlling public scrutiny of itself? Given such things as the missteps in the Covid pandemic, are you concerned about the information other agencies are controlling?

Some resources on this issue are below.

I’d appreciate your discussion.

Thank you.

Kathryn Foxhall


Cc: Department of Commerce staff



Resources

--Glen Nowak, a former CDC head of media relations and a longtime communications employee, has said that since the 1980s the restrictions on CDC staff have grown tighter with each presidential administration; every contact with a reporter is controlled by the higher political levels; and that this system “works” for officials in terms of suppressing information.

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

-- My 2022 article in the Columbia Journalism Review is on the history of this trend. I am a longtime health reporter and serve as a point person on the gag rules.

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

-- “Editor and Publisher” featured the issue in October 2021.

How Many People in How Many Agencies Were Silenced Before the Bridge Fell?

I wrote this today for the live online conversation with Erik Wemple of the Washington Post. However, I may have been late in sending it.

Over decades the Federal establishment and many other entities have instituted rules banning staff, sometimes others, from speaking to reporters without notifying authorities. Journalism groups including SPJ are fighting the restrictions. Mostly, news outlets have acquiesced to the controls, routinely saying things like, “Good reporters get the story anyway.” A former CDC media relations head says the rules are used very effectively for political purposes. Is it ethical journalism for news outlets to not speak out about this? Is the press just assuming what we get is all there is? How many people in agencies, etc., were effectively silenced before the Francis Scott Key Bridge fell? Note reporter riding on a boat with officials can’t talk to them.

A Special Topic: An old fight with a new approach: Journalists file suit against gag rules in public agencies

This is an article I contributed to the Winter 2024 issue of Media Law Notes, the newsletter of the Law & Policy Division of the Association for Education in Journalism and Mass Communication.  Reprinted here with permission.

In apparently unprecedented legal actions, two separate suits have been filed for journalists against public agencies for having gag rules prohibiting employees or contractors from speaking to reporters. Previously, similar suits on employee speech to journalists have been filed and won by parties including unions or employers. 

Many people, including attorneys, have thought that journalists could not file such actions for themselves. 

However, in August investigative journalist Brittany Hailer sued the Allegheny County Jail in Pittsburgh for allegedly having such speech restrictions even while a number of deaths occurred in the facility. Hailer noted in a recent online meeting that if George Floyd had been pulled behind similar walls, there probably would have been no documentation of his death. 

In the second case, the publishers of “The Reporter” sued the Delaware County (New York) Board of Supervisors for revoking the paper’s designation for legal advertising, allegedly in retaliation for its news coverage, and for then banning county employees from speaking to the paper about “pressing matters of public concern.” 

Hailer, in the Pittsburgh case, is being represented by the Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press. 

The New York newspaper is represented by the Cornell Law School First Amendment Clinic and Michael J. Grygiel. 

Both cases were inspired in part by an extensive legal analysis done by First Amendment attorney Frank LoMonte which said such restrictions are unconstitutional and many courts have said that. Both cases are still pending.

Such gag rules have become a norm in many arenas, including some universities. The Society of Professional Journalists has said the controls are censorship and authoritarian. 

For one salient example on the federal level, former Centers for Disease Control and Prevention media relations head Glen Nowak has said the controls grew more restrictive over each Presidential administration since President Reagan. He said the restrictions were politically driven and effective in controlling much information. 

For some years now, when a reporter contacts a public information office (PIO) for permission to talk to someone, the request must be sent up through the political layers of government, such as to the Department of Health and Human Services Secretary of Public Affairs and often to the White House. Behind closed doors officials decide who may speak to whom and what may be discussed. Most journalists have acquiesced to the mandate to routinely contact the PIOs first and they don’t tell the public about that control. 

However, that step, by itself, bans people on the inside from communicating fluidly or speaking without notifying the authorities. There is inevitably much people will not mention when they know their bosses know who is talking to whom. 

However, from all reports we have heard, most reporters’ requests to speak to someone are not granted. 

In addition to the heavy controls on contacts, reporters have long been banned from entering many agencies’ facilities. 

Most federal agencies have had these controls for some time, and they are common in state and local agencies, as well as private entities. The Environmental Protection Agency, Department of Energy, etc., have the same censorship, even in the face of climate change. 

With AI apparently changing history, the Department of Commerce had a bold version of the restrictions. 

SPJ president Ashanti-Blaize Hopkins said, “These gag orders are among the most dangerous threats to free speech and the public’s right to know, as they prevent journalists from doing their jobs.” 

Most news outlets are not openly fighting the controls. One reason is that journalists have a strong tendency to believe: “Good reporters get the story anyway.” Journalists do publish some impactful material that reflects skill and hard work, including the cultivation of employees who defy the gag rules. But journalists also tend to believe whatever they get is all there (paraphrasing psychologist Daniel Kahneman). They tend to believe that even though most staff continue to be frightened out of talking even after our stories are published. 

In addition, as Jay Rosen, a journalism professor at New York University, says, “The news system is not designed for human understanding. Even at the top providers, it’s designed to produce a flow of new content today - and every day.” 

Information control is one of the deadliest things in history. It’s incumbent on journalists to ensure we aren’t just getting spectacular content while people in power are manipulating us away from much of what they don’t want published. 

The issue needs much more scrutiny. For one thing, the impact needs to be better documented as the question moves into the courts. 

My 2022 article in the Columbia Journalism Review is on this history, and the SPJ did previous surveys that showed the pervasiveness of the controls in many levels of government and other sectors. SPJ has a collection of written media policies, and the Society for Advancing Business Editing and Writing held a 2022 seminar on the controls in the private sector. 

Please contact me for questions or background: kfoxhall@verizon.net. 

Kathryn Foxhall is a longtime health reporter; former editor of the newspaper of the American Public Health Association; and winner of the 2021 Wells Key, the highest honor for an SPJ member, specifically for work against the gag rule culture. 

Resources on “Gag Rules and Censorship by PIO” 

-Recently, 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. 

-Also, last fall, a podcast by the Maryland, Delaware, and District of Columbia Press Association featured the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 

-SPJ has said the controls are censorship and authoritarian. 

-SPJ has sponsored seven surveys showing that the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc. 

-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. 

-“Editor and Publisher” featured the issue in October 2021. 

-A review of recent actions is in my blog. 

*Special thanks to Kathryn Foxhall and the SPJ for compiling and providing these resources.

A Second Legal Case Challenges Public Agency's Gag Rule for Journalists

A second legal case was filed this month on behalf of journalists opposing public agencies having restrictions on employees speaking to reporters.

In early December the owners of The Reporter sued the Delaware County (New York) Board of Supervisors for the county attorney’s mandate that all communications with the newspaper go through her office.

Previously the Board of Supervisors had revoked the paper’s designation as the outlet for legal advertising for the county, an action taken in retaliation for news coverage the Board of Supervisors did not like, the complaint alleges. It asserts that revocation violated the newspaper’s First Amendment rights.

After the Board’s action got coverage in the New York Times, along with such instances in other newspapers, the county attorney said that all communications with the paper should come through her, the paper’s complaint said.

It asserted, “This Court should also declare that Delaware County and Defendant Amy Merklen, by issuing the gag directive, violated both The Reporter’s First Amendment right to receive information from willing speakers and County employees’ First Amendment right to speak on matters of public concern, and thereby enjoin the enforcement of the gag directive.”

The action follows the suit by Brittany Hailer filed in August challenging the Allegheny County Jail in Pennsylvania for its policies prohibiting staff and contractors from speaking to the media or others about the jail without approval.

The Hailer suit is believed to be the first one ever filed on behalf of a journalist against these gag rules in public agencies. Other suits against such gag rules have been filed and often won by parties including employees and unions. The Hailer suit is still before the court.

At the time the Hailer suit was filed Claire Regan, then president of the Society of Professional Journalists, said, “These speech bans, which journalists have seen grow more pervasive and controlling, are among the most damaging threats to free speech and public welfare today.”

The Cornell Law School First Amendment Clinic and attorney Michael J. Grygiel are representing the New York newspaper. The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press are representing Brittany Hailer in Pennsylvania.

News coverage is here and here.

From Across the Nation: What the Culture of Gag Rules Does to Us

The Pittsburg Post-Gazette editorial board said that the journalist’s lawsuit, filed in August, against a public agency for banning employees from speaking to reporters, “could transform government transparency.”

Investigative journalist Brittany Hailer has sued the Allegheny County Jail for having those prohibitions, even while the facility allegedly has a high death rate.

On a recent Zoom program, Hailer said, “Something that we talk about a lot, in the death-in-custody stuff that we’re doing, is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

Elsewhere, in June, a Louisville Courier Journal review of 35 Kentucky state and local agencies' policies found “that 70% restrict or prohibit employees from talking to news outlets − some in ways that legal scholars say are unconstitutional.”

The Isthmus news outlet in Madison, Wisconsin, said a public information office physically blocked a reporter from approaching a public official but it’s much more common for PIOs to stymie reporters, “by ignoring emails, refusing to allow reporters to speak directly to frontline workers, requiring that reporters submit written questions and sitting on requested documents.”

Below is some of the coverage of the gag rule norm from around the nation, as well as online discussions of the Hailer case, and other resources.

Recent local coverage:

Isthmus, Madison, Wisconsin, July 10, 2023
“Running interference: Public information officers often forget the ‘public’ in their titles”
Judith Davidoff
https://isthmus.com/opinion/from-the-editor/running-interference/

Triblive, Southwestern Pennsylvania, September 14, 2023
“Aspinwall’s revived media policy raises freedom of speech concerns”
Michael Divittorio
https://triblive.com/local/valley-news-dispatch/aspinwall-revived-media-policy-raises-freedom-of-speech-concerns/

Pittsburg Post-Gazette, Pittsburgh, Pennsylvania, September 04, 2023
“Editorial: Pittsburgh journalist’s lawsuit could transform government transparency”
Editorial Board
https://www.post-gazette.com/opinion/editorials/2023/09/04/brittany-hailer-lawsuit-allegheny-county-jail/stories/20230904001
[Paywall applies.]

Louisville Courier Journal, Louisville, Kentucky, June 14, 2023
“‘Censorship by PIO’: Kentucky agencies' strict media rules putting a gag on workers”
Andrew Wolfson
Censorship: Are Kentucky agencies blocking employees' free speech? (courier-journal.com)
[Paywall applies.]


Recent Discussion Sessions on the Allegheny County Jail Suit

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



Earlier Resources:

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

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

--Glen Nowak, a former CDC head of media relations and a longtime communications employee, has said that since the 1980s the restrictions on CDC staff have grown tighter with each presidential administration; every contact with a reporter is controlled by the higher political levels; and that this system “works” for officials in terms of suppressing information.

-- A 2022 Columbia Journalism Review article looks at the history of the restraints.

-- Journalism groups’ FOI officers told the New York Times in 2022 “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.

-- “Editor and Publisher” featured the issue in October 2021.

YouTube Program: The Gag Rules and "Censorship by PIO" Are Now Everywhere. One Reporter is Moving to Take Legal Action

On October 19, the New England Chapter of SPJ hosted a zoom session on, “Fighting Gag Rules on Government Employees.”

In particular, this is about what may be the first suit by a journalist against this kind of censorship in a public agency.

These rules, despite being unconstitutional, are common in all levels of government, as well as private organizations.

Here’s the YouTube link.

--Frank LoMonte, First Amendment attorney who is now counsel at CNN, has previously said these rules are unconstitutional and courts have agreed with that. He said, “What kind of government would punish people for just for being dissidents, right? What kind of government would punish people for being critics of the official regime’s policy? And the answer is ours.”

--Brittany Hailer, the Pennsylvania investigative journalist who has filed the suit against the Allegheny County Jail, said, “Something that we talk about a lot in the death-in-custody stuff that we're doing is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

--Kathryn Foxhall said even now as we are still trying to figure out what happened during the pandemic and the dangers of doing or not doing particular research on viruses, the entire 70,000 person staff of HHS is trained not to speak to the reporters without notifying the authorities. Most of the time they can’t speak at all. “This is a horrific crime against humanity. It’s dictatorial control over what people can hear.” She also said, “It’s the press’ fault.”

SPJ press release on the suit, filed in August, with resources:

https://www.spj.org/news.asp?ref=2953

Punishing Dissidents; Deaths in Custody: Session on Controls on Reporting

On Thursday, the New England Chapter of SPJ hosted a zoom session on, “Fighting Gag Rules on Government Employees.”

In particular, this is about what may be the first suit by a journalist against this kind of censorship in a public agency.

Here’s the YouTube link.

--Frank LoMonte, First Amendment attorney who is now counsel at CNN, has previously said these rules are unconstitutional and courts have agreed with that. He said, “What kind of government would punish people for just for being dissidents, right? What kind of government would punish people for being critics of the official regime’s policy? And the answer is ours.”

--Brittany Hailer, the Pennsylvania investigative journalist who has filed the suit against the Allegheny County Jail, said, “Something that we talk about a lot in the death-in-custody stuff that we're doing is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

--Kathryn Foxhall said even now as we are still trying to figure out what happened during the pandemic and the dangers of doing or not doing research on viruses, the entire 70,000 person staff of HHS is trained not to speak to the reporters without notifying the authorities. Most of the time they can’t speak at all. “This is a horrific crime against humanity. It’s dictatorial control over what people can hear.” She also said, “It’s the press’ fault.”

SPJ press release on the suit, filed in August, with resources:

https://www.spj.org/news.asp?ref=2953