Thursday, February 1, 2024

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.

Friday, December 15, 2023

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.

Monday, December 4, 2023

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.

Wednesday, October 25, 2023

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


Friday, October 20, 2023

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

Tuesday, October 10, 2023

In an Apparent First, Journalist Files Suit Against Gag Rules in A Public Agency

On August 17 Brittany Hailer filed what is believed to be the first suit by a journalist challenging gag rules a public agency. Below is the release from the Society of Professional Journalists at that time. Allegheny County has until October 23 to respond to the complaint.  

SPJ hails lawsuit to challenge gag rules in public agency:


The Society of Professional Journalists congratulated investigative journalist Brittany Hailer for her efforts 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.

As part of these efforts, Hailer filed on August 17 what is believed to be the first such lawsuit brought by a journalist. Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions. Journalism groups have been actively decrying such gag rules for at least a decade.

“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,” said SPJ National President Claire Regan. “SPJ has repeatedly led in opposing these restrictions which it has called censorship and authoritarian. Hailer’s suit shows journalists themselves can fight back in court against people in power silencing subordinates in terms of talking to reporters or forcing them to report conversations to authorities.”

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, director of the Pittsburgh Institute for Nonprofit Journalism, whose work is funded in part by The Pulitzer Center.

The complaint says, “The Gag Rules prevent reporting that is urgently needed to inform the public about conditions and events at the Jail and unconstitutionally impede news coverage of the Jail needed for meaningful public oversight and accountability.”

Hailer has reported extensively on problems at the Allegheny County Jail. For example, the suit claims, since April 2020, at least 20 men have died after entering the jail, with circumstances of many of the deaths being unclear and, “in several cases, the Jail has never provided medical records to family members to confirm a cause of death.”

“This case presents an important issue for reporters at a time when agencies at every level of government are barring their employees from talking with the press,” said David Schulz, director of the Media Freedom and Information Access Clinic. “The issue at the heart of this case goes directly to the ability of the press to ferret out the news the public needs for democracy to function.”

These restrictions are sometimes referred to as “censorship by PIO,” because many agencies force employees to refer any reporter to their public information office rather than speak with them. SPJ surveys have shown the controls to be common in federal, state and local government, in science, education and police departments. Last year Glen Nowak, a former media relations head at the Centers for Disease Control and Prevention, said that from the 1980s forward each presidential administration tightened what that agency could say until every contact with a reporter had to be vetted through the political layers of government.

In 2019 Frank LoMonte, then head of the Brechner Center for Freedom of Information and SPJ Foundation board member, published a legal analysis and road map for this kind of action by journalists, saying, “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. The only question is whether the restraint will be treated as a presumptively unconstitutional prior restraint, or whether a less rigorous level of scrutiny will apply.”

Kathryn Foxhall, who was awarded the 2021 SPJ Wells Memorial Key for her extensive work opposing gag rules, said, “Information control is one of the most abusive, deadliest things in all human history, even when leaders believe in what they are doing. Journalists take pride in the notion that, ‘Good reporters get the story anyway.’ But we don’t know what remains hidden. We need to fight these bans as if many lives depend upon it. They do.”

SPJ hopes Hailer’s lawsuit will bring about similar challenges and reduce restrictive gag orders placed on public agencies that impede journalists’ important work.

Other Resources:

— A 2022 Columbia Journalism Review article by Foxhall gives a history of the restraints.

— 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 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’ freedom of information 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 of censorship by PIO in October 2021.

Tuesday, August 1, 2023

To Editors: Isn't This Corruption of the Press Itself?

 The following are excerpts from a letter I sent repeatedly to editors at the Washington Post, The New York Times, Science and Scientific American. I have received only inconsequential replies.

The discussion is about the restraints on reporting, which often start with banning an organization’s staff from speaking to journalists without going through PIOs.

After years of work on this issue, I contend these systems, grown up over decades, are abusive, lethal corruption of the institutions of power, but also of the press. They are one of the prime causes of the pandemic failures and they are readying us for failures elsewhere. Some history is in my Columbia Journalism Review article.

I’d like to make this an open letter and I’m requesting your answers on my questions below.

Very importantly, a former CDC media relations head, probably as close a witness to this development as anyone, says that the controls tightened over decades because there was no push back; that they are very political; and that they have been successful in suppressing information.

CDC is only one salient example. These controls now exist from Congressional offices and most the federal establishment down to local police departments.

The opposition work against this has gone on for some time. The Society of Professional Journalists has said the controls are censorship and authoritarian. The extensive legal analysis from The Brechner Center for Freedom of Information found that these constraints, though very common, are unconstitutional and many courts have agreed with that. (The longer version is a legal article.)  Among many other communications over years, 25 journalism and other groups wrote to the Biden Administration calling for elimination of such restrictions in the federal government. Journalism groups FOI officers told the New York Times the press should be openly fighting these controls.

Many journalists’ answers to this situation are along the lines that reporters work hard, are highly skilled and have some contacts who will talk to them. However, that does not tell us what proportion of critical issues we understand. It does add perspective to notice how many serious problems come to light only after they have existed for a long time.

Despite some very impressive journalism in your publications, all journalists are missing stories and parts of the stories because most people around the situations are successfully blocked from talking, even after the stories are published.

 

My questions include:

---Why isn’t this historically hazardous? Why wouldn’t human institutions, including government agencies, develop corrosion after years of controlling public scrutiny of themselves? Given that we are still struggling to understand what happened in the pandemic, is the fact that all HHS staff are constrained in their speech a crime against humanity?

---Is there any reason to think journalists are getting the majority of what is most critical given that so many people close to the situations are silenced?

---What are the ethics of journalists working under these controls without openly opposing them or explaining them to the public? Is the press empowering lethal censorship?

---Control of information is at least one of the deadliest things in human history. Now we are in an era of existentialist threats to humanity. Why are we taking the risk of allowing any new constraints on reporting?

 

Also, would you confirm that:

---For many years reporters have not had routine physical access to HHS facilities, including FDA or CDC?

---There is no credentialling system to allow reporters access to those facilities?

---Usually, reporters must go through the public information officers to speak to anyone at HHS agencies, because employees are instructed not to talk to them otherwise? (This is with the understanding that sometimes staffers do defy the rules and talk to reporters without going through channels.)

---Frequently reporters are blocked from speaking to people they request at HHS agencies, either because the request is denied outright or because the permission process takes so long the reporter can’t wait?

---Reporters were under these controls the entire time, as well as years before, while we had a mass death event?

 

The Basics from Former CDC Media Relations Head:

About Administrations’ Controls and Remaining Elected

In an interview with me Glen Nowak, former head of CDC media relations said that:

---Scientists and others are unlikely to talk to reporters without oversight by the public information office because they have been “trained.”

---Since the 1980s, each political administration saw that the prior administration had experienced no ill effects from tightening the controls and proceeded to tighten them further.

---Every contact between a reporter and employee must be authorized up through the HHS Assistant Secretary of Public Affairs, who is often a communications person from the presidential campaign. That person, “can say yes or no, or they can add their recommendations and thoughts to the key messages, and they can decide whether if this is something that should be elevated to either the awareness level at the White House….”  

---“So, administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through, you know: how will this help or not help when it comes to running for election? How will this help maintain or grow support? And so, yeah, that’s basically the bottom line,” Nowak said.