What is thought to be the third lawsuit by journalists against public agency bans on employees speaking to reporters has been filed in the U.S. District Court for the Southern District of Florida.
The Key Biscayne Independent filed a federal
lawsuit June 24 against the Village of Key Biscayne, claiming the media
policy the village adopted in November is an unconstitutional infringement on
the free press.
The suit says, “local government employees are currently
prohibited from “communicat[ing] in any manner with any media entity,” absent
pre-approval from superiors. This wide-ranging limitation on speech—sweeping in
not only statements made pursuant to official duties, but also casual
conversation, personal opinions, and whistleblowing on matters of clear public
concern—is unconstitutional.”
It also states, “The First Amendment protects not just the
right to speak but also the press and public’s ‘right to receive information,’”
citing the decision in the 1976 case Va.
State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.
The Key Biscayne Independent is represented
by attorneys from the Reporters Committee for Freedom of the Press and the
Florida law firm Shullman Fugate.
Kathryn Foxhall, longtime advocate against such gag rules,
said, “We applaud the courage of the Key Biscayne Independent in taking
this stance against these dangerous blockages that have become so common.”
The Society of Professional Journalists has encouraged
journalists to take actions, including lawsuits, against these increasingly
common bans.
In last year’s call to action after the first
such suit ended in a favorable settlement, SPJ urged journalists to consider
similar legal action; use the cases for discussions and editorials opposing
such speech restrictions; and educate the public about the dangers of such
censorship.
At least two courts have now said journalists can sue on
their own accord against such gag rules. In April last year, 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 allegedly
high rate of inmate deaths and even on medical professionals who worked there.
The Yale Law School Media Freedom and Information
Access Clinic and Reporters Committee for Freedom of the Press represented
Hailer, whose reporting was funded in part by The Pulitzer Center.
Earlier this year, the U.S. District Court of the
Northern District of New York allowed
a case to go forward that is in part about a public agency's ban on
employees speaking to the press. The owners of the Catskills-based “The
Reporter,” are represented by the Cornell Law School First Amendment Clinic and
Michael J. Grygiel of Greenberg Traurig.
Foundational thinking for such cases was provided by a
2019 report by prominent SPJ leader 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.”
Further background is available here.
