The Society of
Professional Journalists and others have been fighting the restrictions in
agencies and other organizations prohibiting staff from talking to reporters
without notifying authorities, often public information officers.
Now a prominent free-speech attorney
says there may be a legal case against PIO chokepoint on information.
Frank LoMonte told an Excellence in Journalism18 session that
when he became head of the Brechner Center for Freedom of Information last
year, journalists and lawyer friends told him the biggest pain point for
reporters is the PIO bottleneck, or the aggressive manner in which government
agencies, in particular, are policing access to information.
After the center researched the issue, he became convinced there
is a legal way to attack these blockages, he said at the session, titled
“Censorship by PIO: Challenging Gag Orders on News Sources,” in Baltimore,
Sept. 29.
LoMonte was head of the Student Press Law Center in Washington
for almost 10 years prior to taking the position at the University of Florida’s
Brechner Center in 2017.
He pointed out that some people say the restrictions are legal,
due in part to the 2006 Garcetti v. Ceballos Supreme Court case. In that 5-4 decision
the court said an assistant district attorney who wrote a memo taking a view in
opposition to his boss could be disciplined because he was acting “pursuant to
official duties.”
(It
should be noted that many of the restrictions seen today got their start well
before that 2006 decision.)
However, LoMonte said, “The U.S. Supreme Court has said over and
over again that you do not forfeit all of your First Amendment rights just
because you take a job working for the government.”
In the more recent 2014 Supreme Court case, Lane v. Franks,
LoMonte said, the court, in essence, said the Garcetti decision did not mean
that when people talk about their work they have no First Amendment protection.
The court meant, he said, that when the employees are talking as a work
assignment these restrictions on free speech might be legal.
Edward Lane was a community
college employee who testified in a federal fraud case about a state
representative who was put on the college payroll but did no work. Lane was
fired after that trial was over. Then Lane sued Steve Franks, the community
college president, for wrongful termination, alleging he was retaliated against
for testimony in the fraud case, and therefore his free speech rights had been
violated. The Supreme Court reversed a lower court decision that had said his
free speech rights were not violated.
The Brechner Center is trying to draw a map for media lawyers
who want to take these cases on.
LoMonte also contends the gag orders may be illegal in some
larger businesses due to protections under the National Labor Relations Act.
The National Labor Relations
Board, which enforces the NLRA, has said many times that it regards employees’
ability to speak about their work as a necessary condition to being able to
organize, according to LoMonte: “If you can’t talk about your working
conditions, then you can’t make them better, right?”
Yet, he said, every reporter
who has ever interacted with a private business has had an employee tell them
that no one there except the public relations office is allowed to talk to
reporters. LoMonte thinks many of these restrictions are on borrowed time
and people will start challenging them. Exceptions to who is covered
by the NRLA rules, LoMonte explained, include religious institutions, small
private businesses or high-level supervisors. He also noted that reporters who
are told that no one can talk to them without going through the PIOs should ask
if there is a written policy and if they can see it. Sometimes, he indicated,
the “rule” is just an impression that has been passed down from generation to
generation of employees.
About 60 people attended the session.
