Labor Department's Threatens Criminal Charges for Talking; And Other Indicia of Where We Are

The Labor Department (of all agencies!) is threatening to bring criminal charges against employees who talk to reporters: Labor Department Says Staff Could Face Criminal Charges for Leaks — ProPublica

---The Small Business Administration is investigating staff for talking to the press or former colleagues.

---Michael Lewis' popular new book, "Who is Government," mentions the months-long effort he was forced to go through with FDA's communications department to talk to public servant Heather Stone for one of his profiles. How have journalists come to the point of referring to tyrannical suppression just in passing? And this from an agency that holds our lives in its hands. 

If CDC Messaging Is Bad Now, It's Enabled by a Long-Accepted System of Controls

There's been a surge in federal agencies and many other entities banning employees from speaking to journalists without notifying authorities or public information officers."

Now it belongs to the current administration.

The Washington Post published my letter to the editor on April 10.

To Journalism History Meeting: Gag Rules, Censorship by PIO and Slide into Authoritarianism

This is the written version of my talk to Joint Journalism and Communication History Conference, March 28.

Since the 1980s there has been a surge in federal agencies and many other entities banning employees from speaking to journalists without notifying authorities, often through public information officers. Often reporters are not allowed speak to the person they request at all.

Glen Nowak, a former Chief of Media Relations at the Centers for Disease Control and Prevention with many years at the agency, has said that presidential administrations have handed down restraints on what may be said and who reporters may talk to, with intense examinations of individual contacts; that the rules have tightened with every president since at least Clinton; and that the controls are explicitly political. Nowak said, “Government and elected officials have seen that controls make it harder,” for journalists to do stories officials don’t like, and therefore they “diminish the visibility and prevalence of those stories. So, from their perspective, it works.”

I have been on the Right to Know Committee of the Association of Health Care Journalists since a decade prior to the pandemic. Things were so bad that the committee members regularly met with the HHS Assistant Secretary for Public Affairs to request that reporters be allowed to speak to the HHS staff members whom they requested after going through the censorship process, starting with the public information office.

On the Committee we argued with each other repeatedly because I said we should be pushing for unfettered contact, with reporters contacting who they wished without notifying any authority. I was told that we could not possibly ask for that. That would be just a game stopper from the outset.

Look at that, please: The press is supposed to be watchdogs for the public.

In reality, we cannot, and we did not, even approach the authorities to ask if we might talk to people normally. That includes people in our major institution in charge of preventing mass death from infectious disease.

As a reporter who spent over 14 years talking to federal staff before the PIO/guard system was implemented, I have zero doubt that the manipulation and blockage in the later years was one cause of the poor performance that exacerbated the pandemic. Given the deadly history of information control, why wouldn’t it be?

I want to be direct about what my real question is: Why isn’t this apocalyptic?

The blockages are still in effect in HHS, meaning that all 80,000 staff are under these constraints not to speak to reporters, even as future catastrophes are inevitable.

These controls have also become quite common in agencies and other entities across the country. The Society of Professionals Journalists sponsored surveys from 2012-2016 of the restraints in federal, state and local governments; education; science; and police departments. They showed the controls were pervasive.

SPJ and other journalism groups have opposed the controls for over a decade. Letters signed by up to 60 groups have gone to the last three administrations. SPJ led a group of journalists to talk to people in the Obama White House in 2015.

In an important development, foundational thinking for journalists themselves taking legal action against constraints was provided by First Amendment attorney Frank LoMonte, currently Co-Chair of the Free Speech and Free Press Committee of the American Bar Association.

LoMonte said: “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.”

Last year investigative journalist Brittany Hailer won a settlement, with strong First Amendment language, supporting employees’ and contractors’ right to speak to reporters. Hailer had filed action against the don’t-talk restrictions in the Allegheny County Jail in Pittsburgh, which had an alleged high rate of inmate deaths. Last month a second excellent ruling came down, allowing a New York newspaper to move forward with such a case.

Many attorneys and others had previously thought journalists could not bring such cases against gag rules on their own accord.

Nevertheless, few journalists or news outlets have taken serious action against these constraints. With amazing consistency journalists say something like, “Good reporters get the story anyway.” This is in the face of the fact that many stories on malfeasance emerge only after many years of harming people, public programs or our way of life.

The New York Times published the story about the fact the head of the FDA medical device division had worked under important conflict of interest for 15 years.

Look at that the other way around: For 15 years the entire press corps was oblivious to that situation that many people certainly knew about.

Maybe it’s critical that we should go back to talking to people without the authorities’ interference?

In other examples, for at least 20 years people were tortured by a Mississippi sheriff’s department “goon squad.” There were major problems with the overseas manufacture of generic drugs. It took the author 10 years to get the story, she said, in part because FDA scientists could not speak. The first Trump administration’s plan for separating children from their families was put together while reporters were not allowed in HHS. The Atlantic’s Pulitzer Prize-winning story got the details five years later.

It’s my estimation that the majority of enterprise or investigative stories--- impressive though they often are---cover things that have been successfully kept out of journalists’ sight for a long time.

We get stuff, despite the controls. Journalists often get impressive material: careful, truthful, and addressing things the public want to know.

However, how do we know we get five percent of what is 1) important and 2) not open to us, particularly with the authorities mandating that we never hear a word without their controls on it?

Why do any of us think so?

The press critic Jay Rosen says, “The news system is not designed for human understanding. Even at top providers, it's designed to produce a flow of new content today--and every day."

It’s like reeling in fish over a 25-foot wall. We know nothing about the ocean, we can’t even see it or much of what is in it, but we get more than enough nice stuff to make a living. So we don’t fight the wall.

Much more work is needed on how the journalism culture of acquiescence to these controls has arisen, the impact it has on democracy and human welfare, and the question of whether it is enabling autocracy.

I’d just beg that people ask these questions quickly because right now insiders are silenced even as humans endure oppression, and the catastrophes, like maybe a larger pandemic, are headed toward us.

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.”