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.
