Free Speech Attorney Sees Legal Case Against Restraints by PIO

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.