To the White House about Public Participation: The Corruption of Government Gag Rules

To the White House Office of Management and Budget:

The Bans on Staff Members Speaking Freely to Journalists Are a Great Risk to Us All

I am commenting on the “Draft Public Participation and Community Engagement (PPCE) Guidance and Toolkit.”

Over several decades, agencies and offices in the United States have begun prohibiting employees and subordinates from speaking to the press without involving the authorities, often through a public information office. Related barriers include blocking requested contacts or delaying them until the reporter gives up; limiting the number of briefings; limiting briefings in terms of time and questions permitted; and not allowing the spokesperson’s name to be published.

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.  We received no response although we followed up several times.

These restrictions on contacts with journalists have been adopted as policy in most federal agencies, without any substantial public discussion of their impact. (See the collection of media policies.) They are also in entities, public and private, from Congressional agencies to local police departments.

Journalists can take pride in some excellent journalism that is published. However, these constraints are information control by people in power, one of the most dangerous things in human societies. They are routinely successful in keeping information away from the press and thus away from nearly everyone. They are dictatorial and an ongoing menace to public welfare.

They are a strong foundation for future increases in authoritarian restrictions.

I understand the need for agencies and other entities to have an official avenue for the release of official information. I know some things are legitimately confidential. I appreciate the need for both staff and journalists to distinguish between statements that are official policy and those that are not.

I also recognize that in this fraught time of misinformation, disinformation and attacks on agencies, officials face many difficulties in putting out honest messages and moving forward with their organization’s work.

Nevertheless, journalists know there is always perspective, background, and tips that source people will not mention when they are under the power structure’s scrutiny.

We also know these controls can become political.

Former CDC media relations head Glen Nowak has said the agency’s controls began with President Reagan. Each new administration realized the constraints had not caused the previous administration serious political consequences and proceeded to make the rules more controlling.

Nowak said: “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: how will this help or not help when it comes to running for election…. A serious health threat can be underplayed or ignored if it doesn’t align with political ideology of the party in power, or a party is trying to get power.”

I feel certain that if reporters, from mainstream or specialized outlets, had been able to talk normally with CDC staff, some of the disfunction in the agency would have been corrected prior to the pandemic. It is extraordinarily shameful that did not happen.

The OMB draft guidance document says, “The promise is to keep the public informed and provide accurate and transparent communications from the agency.”

However, members of the public are at severe disadvantage when they are allowed to know only what officials decide may be released.

Please note:

-- The Brechner Center for Freedom of Information provided foundational thinking on these restrictions in a 2019 report. It says these constraints are unconstitutional, that many courts have said so, and that journalists are able to bring their own legal actions. A shorter version of that report is here.

-- In a groundbreaking case, journalist Brittany Hailer sued the Allegheny County Jail in Pittsburgh which prohibited even medical personnel from talking to reporters, although a high death rate was alleged. In April, Hailer, represented by Yale Law School Media Freedom and Information Access Clinic and the Reporters’ Committee for Freedom of the Press, won a favorable settlement with strong First Amendment language supporting employees’ and contractors’ right to speak to reporters.

I am asking the White House Office of Management and Budget these questions:

---How can these restrictions be legal, ethical or democratic?

---How do they compare to speech restraints in undemocratic regimes?

---Are they not dangerous to the public, given that information is blocked on the work to protect public welfare?

Further information is available from this resource listing.

Thank you.

Kathryn Foxhall

2021 SPJ Wells Key Awardee for work against restraints on reporting


Resources:

-- An article in the Columbia Journalism Review is on the history of this trend which has made the gag rules pervasive in many kinds of entities.


-- The Society of Professional Journalists has said the controls are censorship and authoritarian.

-- 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 Maryland, Delaware, and District of Columbia Press Association podcast episode features the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 

-- 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. 

-A review of actions is in the PR Office Censorship blog.

To CDC: Please Confirm: Controls on Reporters During The Pandemic

Open Letter to Dr. Cohen

Dr. Mandy Cohen
Director,
United States Centers for Disease Control and Prevention

Dr. Cohen:

I was for 14 years (1978-1992) editor of The Nation’s Health at the American Public Health Association. I was honored to know some of the public health greats of the 20th century. I count myself second to no one in admiration of public health: the triumphs, the science, the effectiveness of population-based care, and especially the professionals, many of whom are devoted, indeed personally captured, by public health’s criticality.

In recent years I have served as a point person for the Society of Professional Journalists and others in opposing the gag rules culture that has grown up in the U.S., as people in power silence employees and others.

I have harsh but necessary questions, including why the restrictions on journalists’ newsgathering, now at CDC and many other entities, are not human rights abuse and inevitably a mass degradation of public welfare.

Some decades ago, agencies began to ban employees from speaking to reporters or ban them from doing so without the authorities’ involvement, often through a public information office. Other controls were built using the gag rules as foundation, including limiting official briefings and having PIOs sit in and guide contacts.

Glen Nowak, a former CDC communications director with many years at the agency, had laid out the issue for journalists: presidential administrations hand down instructions on who reporters may talk and what may be said; the controls have been tightened with every president since Reagan; and they are explicitly political.

Nowak said, “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: ‘How will this help or not help when it comes to running for election? How will this help maintain or grow support?’”

“Government and elected officials have seen that controls make it harder to do [stories those official don’t favor] and diminish the visibility and prevalence of those stories. So, from their perspective, it works,” he said.

Over more than 30 years the controls expanded with little public discussion of their legitimacy or impact. Many journalists saw this transition take place.

CDC routinely fended off public scrutiny according to the thoughts or inclinations of a few people. Then we discovered the agency was not ready for an infectious disease crisis, a key reason for its existence.

These restrictions block information gathering by prohibiting staff from talking confidentially to journalists; by making any contact with staff so cumbersome it is often infeasible; by deliberately blocking contacts altogether; and by using this power over contacts for political purposes.

Some journalists and others have been fighting these restraints for years.

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 restrictions’ elimination in the federal government. 

Journalism groups’ freedom of information 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.

Prominent First Amendment attorney Frank LoMonte, who has done extensive research on these controls, says they are unconstitutional, many courts have said so, and journalists can bring their own legal actions.

This year reporter Brittany Hailer won what is apparently the first legal settlement for a journalist against these prohibitions in a public agency.

Information control is one of the deadliest things in all human history given suppression of information for personal gain and accountability avoidance, propaganda to support many things including military conflict, discrimination, genocide, etc.

It is the antithesis of public health.

Questions to CDC for The Record:

In full recognition of the fact that free speech in agencies and elsewhere can be seriously problematic, is there any evidence in history that such controls on newsgathering are better for human welfare than unfettered speech and newsgathering?

Would you confirm that during the entire official period of the Covid public health emergency, and many years prior, journalists were not allowed in CDC facilities with possible exceptions for meetings or when they were escorted?

Would you confirm that also during that period contact was banned between journalists and employees without authorities’ involvement, often through the public information office?

Would you confirm these constraints are in great part mandated by the political administrations?

Would you confirm that such issues as whether a contact with a journalist will take place and what may be discussed are controlled by the Office of the Assistant Secretary of Public Affairs, people in the White House or other political officials? Consistently or often?

Is there any type of independent observer who is within the agency or who has free access to contact agency employees? For instance, do we have many inspectors-general or other such personnel focused on the agency? Are there any such persons who can closely observe the agency for accountability purposes?

Why wouldn’t the restrictions on the press be one key cause of the missteps that exacerbated the pandemic? Weren’t staff members who were expert in this field, including the lack of readiness, blocked for years from speaking to journalists or blocked from doing so without the involvement of the authorities?

What are the bioethical implications of withholding information from the public and don’t these restrictions on speech inevitably withhold information? Are these restrictions, covering so many issues, so many potential speakers over decades not the equivalent of myriad Tuskegee experiments?

What right does any group of people have to control the speech of others outside of defined, narrow circumstances such as privacy protection or national security?

CDC has spoken repeatedly about rebuilding trust with the public. I deeply regret to ask: Is it not a citizen’s critical responsibility to avoid trusting powerful entities that control information about themselves, or have such curbs imposed on them? Is such skepticism not especially essential when any entity is responsible for human welfare?

Will CDC call for an independent examination of how the controls on the press affect public health, including how the current norm of prohibiting speech by people across the federal government and in all kinds of entities, state and local, public and private?

I’m asking for answers on the record for commentary, for professionals young and veteran, for historians and other researchers.

I’m attaching a background paper.

I’d be happy to talk with you or any of your staff.

Thanks for your attention.

Kathryn Foxhall
SPJ 2021 Wells Key Awardee
For work against gag rules


CC:
CDC Communications and Other Staff
The CDC Director's Advisory Committee

Caroline Hendrie
Executive Director
Society of Professional Journalists

Ashanti Blaize-Hopkins
President
Society of Professional Journalists