The Long, Solid Precedent for Muting Officials: Please Say It

This was sent to the publisher of the New York Times on January 31 and the NYT staff thereafter. There was no response as of February 9.

Mr. Sulzberger:

The article, Trump Administration Temporarily Mutes Federal Health Officials - The New York Times, is frighteningly misleading.

Over the last several decades federal agencies and many other employers have instituted gag rules that ban staff from speaking to reporters or ban any such contact without involvement of public information officers or other authorities.

Why are we now talking about the officials blocking the official publications and not mentioning the long-time gags on employees that are so damaging? Are the gag rules not authoritarian restrictions?

The world lost an estimated seven million people to the Covid epidemic after blunders by an agency that had intensely fended off reporters’ newsgathering for years, as it pleased or as its political minders mandated. A former CDC communications head has chronicled how the controls became worse from one administration to the next as there was no push back and the press said little.

Now other catastrophes are looming, some which could be existential threats to humanity, and 80,000 people in HHS are still gagged. Why is that not a news story?

Of course, that’s not even the beginning of the gag rule culture this nation has built.

Reporters who were working before the controls’ implementation know that the story often looks different when people can talk without guards on them.

If and when the federal health and science publications are once again distributed, they will have a tragically high likelihood of being politically controlled, not only because the Trump administration is in power, but also because these restrictions have been growing for decades and behind those curtains people can control information at will.

Things to Know About the Fight Against Gag Rules:

Last April investigative journalist Brittany Hailer won a favorable settlement, with strong First Amendment language, supporting employees’ and contractors’ right to speak to reporters. Hailer had filed a legal action against the Allegheny County Jail in Pittsburgh, which had such restrictions even in the face of an alleged high rate of inmate deaths.

Hailer’s settlement was a breakthrough because many people had previously thought that journalists could not bring such cases against gag rules on their own accord.

The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press filed the suit on behalf of Hailer, whose reporting was funded in part by The Pulitzer Center.

Foundational thinking for such cases was provided by a 2019 report by prominent First Amendment attorney Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice.

In a summary report, LoMonte said of the constraints: “Media plaintiffs should be able to establish that their interests have been injured, whether directly or indirectly, to sustain a First Amendment challenge to government restraints on employees’ speech to the media.”

Nevertheless, various authorities are very convinced they need this mechanism of enforcing the censorship.

Further resources are here.

Will the New York Times tell this story?

Kathryn Foxhall
SPJ member

cc. New York Times Staff

Why Aren't We Scared Yet? Instances of the Gag Culture

Below are some sample indications of gag rules instituted around the country, most found through searches on the database Nexis. Actually, I think the number of gag rule stories that can be unearthed is limited only by the time anyone can spend on such a database.

Seriously, how does this compare with a dictatorial culture? How do we assume that the press gets most of the information critical to people?

---“Key Biscayne Manager Steve Williamson instituted a sweeping gag order on employees speaking to the media this month,” said the Key Biscayne Independent on Dec. 22. The news outlet says the gag order, “comes after some tough news stories for the Village [of Key Biscayne] in the past year.”

The policy, as reproduced by the Key Biscayne Independent, said, “Village of Key Biscayne staff will not communicate in any manner with any media entity without the approval of the Village Manager and/or the Community Engagement and Communications Manager.”

When the story became a point of discussion on LinkedIn, some city managers said they concurred with the policy as a way to prevent misinformation, that it is not a free speech issue, or having employee groups open up is a recipe for disaster.

---The Prison Policy Initiative on Dec. 13, posted a look at gag rules in prisons and, “reviewed research from the Society of Professional Journalists and from Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association’s Section of Civil Rights and Social Justice, to show how common and far-reaching these gag rules are in the criminal legal system.”

The article says that although the policies are quite common, they are unconstitutional and unenforceable.

---Newsgathering gets complicated when employees and leaders won’t speak to the media and the city tells journalists, “Not to contact staff members directly,” said Myrtle Beach Online , Nov. 19.

The article says, for instance, Georgetown County’s policy says, “only approved spokespeople can speak directly with the media, including the county’s public information officer, the county administrator and directors and their designees.”


--- The Chronicle-Tribune of Marion, Indiana, made a public records request for any written guidelines and polices for city employees interacting with the media, according to a December 2 article. The paper said it made the request, “because every time it tried to speak with a city employee, it was directed to speak to the mayor instead, even if it was on a matter that the city employee was more equipped to answer. Not only was the paper redirected to the mayor, city employees said they needed to get interviews approved by the mayor.”

The mayor eventually told the newspaper that, “the city's supervisor of marketing and community development, is the new point of contact for media questions.”