A new, maybe landmark, report from the Brechner Center for Freedom of Information, asserts, “Although rules and policies requiring government employees to get approval before speaking to the news media are widely enforced, no such policy as ever survived a constitutional challenge.”
Frank LoMonte, Director of the Center, has worked closely with the Society of Professional Journalists and others in bringing to the fore the issue of mandated clearance or “Censorship by PIO.”
Some government agencies cite the 2006 Supreme Court case Garcetti v. Ceballos as authority to prohibit employees from speaking to journalists without going through the public information officers.
However, the new report says that case is about “when an employee speaks as part of a work assignment, that speech belongs to the employer, and the employee has no First Amendment claim if punished for performing the assignment in a way the employer finds unsatisfactory.”
The Brechner Center argues, “The government faces a much more demanding burden to justify a blanket restraint on speaking to the press than to justify punishing one particular speaker whose speech undermines the agency’s effectiveness.”
The center reviewed state and federal caselaw back to the 1940s and found nearly two dozen cases, “in which a court has struck down a blanket policy requiring public employees to get approval before speaking about their work.”
The report quotes one judge in the 1970s as saying, “The protected right to publish the news would be of little value in the absence of sources from which to obtain it.”
Some things that government public relations offices can legally do include coaching employees about giving interviews and issuing statements from the agency’s perspective, says the report. However, it concludes, “What they cannot do is compel either employees or journalists to clear every conversation in advance.”
Frank LoMonte, Director of the Center, has worked closely with the Society of Professional Journalists and others in bringing to the fore the issue of mandated clearance or “Censorship by PIO.”
Some government agencies cite the 2006 Supreme Court case Garcetti v. Ceballos as authority to prohibit employees from speaking to journalists without going through the public information officers.
However, the new report says that case is about “when an employee speaks as part of a work assignment, that speech belongs to the employer, and the employee has no First Amendment claim if punished for performing the assignment in a way the employer finds unsatisfactory.”
The Brechner Center argues, “The government faces a much more demanding burden to justify a blanket restraint on speaking to the press than to justify punishing one particular speaker whose speech undermines the agency’s effectiveness.”
The center reviewed state and federal caselaw back to the 1940s and found nearly two dozen cases, “in which a court has struck down a blanket policy requiring public employees to get approval before speaking about their work.”
The report quotes one judge in the 1970s as saying, “The protected right to publish the news would be of little value in the absence of sources from which to obtain it.”
Some things that government public relations offices can legally do include coaching employees about giving interviews and issuing statements from the agency’s perspective, says the report. However, it concludes, “What they cannot do is compel either employees or journalists to clear every conversation in advance.”
Is it SPJ's intention to take on the Gillett Amendment then?
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