Washington Post Publishes Opinion Piece on The Harm to the Public

In a recent Washington Post opinion piece, science writer Gabriel Popkin says, “Over the past few decades, one federal agency after another has thrown up barriers limiting the media’s access to researchers.”

His very good piece gives numerous illustrations on how the restrictions work. It’s one of the few in the major media on the mandated clearance of reporters’ requests to communicate with people and the related obstructions.

Popkin says, “This harms the public — and democracy itself. When agencies refuse access to experts who can explain how scientific knowledge is produced and how science-based decisions are made, understanding of and trust in government suffer.”

The author has worked with the National Association of Science Writers on the blockage issue.

He says, in one example, that a Food and Drug Administration public affairs officer would not put him in contact with an expert on the evaluation of genetically modified plants.

That’s a pervasive story: federal agencies first began prohibiting staff to speak to reporters unless the journalists go through public information offices. Now PIOs often don’t let the reporter through.

With these ethically plagued restrictions one question is whether the public may be better off if the reporter isn’t allowed to speak to the person requested. If the communication does happen it will be controlled by the agency’s eagle-eyed oversight. It’s a good bet that so much will go unmentioned the result can be technically accurate and badly misleading. Neither the journalist nor the public will likely understand how the narrative has been befuddled.  

Free Speech Attorney Sees Legal Case Against Restraints by PIO

The Society of Professional Journalists and others have been fighting the restrictions in agencies and other organizations prohibiting staff from talking to reporters without notifying authorities, often public information officers.

Now a prominent free-speech attorney says there may be a legal case against PIO chokepoint on information.

Frank LoMonte told an Excellence in Journalism18 session that when he became head of the Brechner Center for Freedom of Information last year, journalists and lawyer friends told him the biggest pain point for reporters is the PIO bottleneck, or the aggressive manner in which government agencies, in particular, are policing access to information.

After the center researched the issue, he became convinced there is a legal way to attack these blockages, he said at the session, titled “Censorship by PIO: Challenging Gag Orders on News Sources,” in Baltimore, Sept. 29.

LoMonte was head of the Student Press Law Center in Washington for almost 10 years prior to taking the position at the University of Florida’s Brechner Center in 2017.

He pointed out that some people say the restrictions are legal, due in part to the 2006 Garcetti v. Ceballos Supreme Court case. In that 5-4 decision the court said an assistant district attorney who wrote a memo taking a view in opposition to his boss could be disciplined because he was acting “pursuant to official duties.”

(It should be noted that many of the restrictions seen today got their start well before that 2006 decision.)

However, LoMonte said, “The U.S. Supreme Court has said over and over again that you do not forfeit all of your First Amendment rights just because you take a job working for the government.”

In the more recent 2014 Supreme Court case, Lane v. Franks, LoMonte said, the court, in essence, said the Garcetti decision did not mean that when people talk about their work they have no First Amendment protection. The court meant, he said, that when the employees are talking as a work assignment these restrictions on free speech might be legal.

Edward Lane was a community college employee who testified in a federal fraud case about a state representative who was put on the college payroll but did no work. Lane was fired after that trial was over. Then Lane sued Steve Franks, the community college president, for wrongful termination, alleging he was retaliated against for testimony in the fraud case, and therefore his free speech rights had been violated. The Supreme Court reversed a lower court decision that had said his free speech rights were not violated.  

The Brechner Center is trying to draw a map for media lawyers who want to take these cases on.

LoMonte also contends the gag orders may be illegal in some larger businesses due to protections under the National Labor Relations Act.

The National Labor Relations Board, which enforces the NLRA, has said many times that it regards employees’ ability to speak about their work as a necessary condition to being able to organize, according to LoMonte: “If you can’t talk about your working conditions, then you can’t make them better, right?”

Yet, he said, every reporter who has ever interacted with a private business has had an employee tell them that no one there except the public relations office is allowed to talk to reporters. LoMonte thinks many of these restrictions are on borrowed time and people will start challenging them. Exceptions to who is covered by the NRLA rules, LoMonte explained, include religious institutions, small private businesses or high-level supervisors. He also noted that reporters who are told that no one can talk to them without going through the PIOs should ask if there is a written policy and if they can see it. Sometimes, he indicated, the “rule” is just an impression that has been passed down from generation to generation of employees.

About 60 people attended the session.

On Not Trusting the Official Story

Below is the presentation I made on PR Office Censorship to a panel session at the National Association Communicators Annual meeting.

I want to first thank NAGC for having this important and courageous panel.

The first thing I want to say is journalists fighting these restrictions don’t want to be in opposition to PAOs. 

--Because we need the tremendous help you give us.

--Because many of the agencies are amazing, unsung heroes and deserve much more recognition.

--Because I feel journalists are more responsible than PAOs for the unconscionable restrictions we are under.

--And because we want your help in resisting the situation, because we all live in this country.

History

About 20 years ago, at the federal level, some agencies started prohibiting staff from talking to reporters without going through the public information office. Over time the restrictions have become more widespread and aggressive. 

Built on top of that requirement are myriad constraints on newsgathering. Death by delay; monitoring conversations; refusals to allow reporters to speak to source people they have identified or to speak to anyone at all; etc.

This is the bottom line on why this is so destructive: ROUTINELY staff people tell us lots of solid, really important stuff when we talk to them away from official oversight, things that will not out come through the official avenues.

But when people speak when they are being tracked at the behest of the leadership, mostly they tell the official story. And that’s tragic. The official story is just one piece.

For some historical incidents:

Much of medical ethics today flows from 1972 when an “insider,” --a former federal employee-- had totally unauthorized conversations with an AP reporter about something he had known for years: the Public Health Service had been following the progress of syphilis for 40 years in 399 African American men without informing or treating them. The story turned the research world on its head.

And when jumbled graves were discovered at Arlington, gravediggers had known for years. 

When the Penn State sex abuse scandal broke, janitors had known for years. 

FDA staff members worried about compounding pharmacies long before people had fungus injected into their spines.

Gushing Rivers

There is always much that lies beneath. The press critically needs gushing rivers of unauthorized communications, confidential conversations, discussions the bosses would never, ever approve of, communications the leaders nor anyone else know about.
We need to talk to as many of the “wrong” people as we can cram into the day.

Without those communications, happening fluidly, reporters are perniciously naïve.

And yes, huge parts of those communications are going to be absolute hogwash. 

That’s why reporters need to use heavy skepticism and confirmation of everything.

Official Story

On the other hand, official information, or communication from people speaking under official control, is at least equally as risky.

There is no greater lesson from history than the fact it is massively irresponsible to just trust the official story. For journalists, one of the most unethical things we can do is to just trust.

That’s why we need to talk to people away from official controls.

Scott McClellan, spokesman for President Bush, said the country went to war in an atmosphere of the administration’s “spin, stonewalling, hedging, evasion, denial, noncommunication and deceit by omission.”

Look at the culture we’ve built in 20 years:

Millions of people prohibited from communicating with each other without reporting to the authorities. Thousands of workplaces and thousands of managers with the power to silence people. A whole culture inside agencies that “knows” it should aggressively control and suppress information-gathering. 

In recent times, CDC forbade a reporter’s interview with a key expert on one of the largest tuberculosis outbreaks in 20 years; HHS stopped a New York Times reporter from speaking with a staff psychologist about his allegations of massive child abuse on a Native American reservation; FDA stopped me from talking to a counterfeit drug expert because she “didn’t have anything else to say.” 

Doesn’t this sound like a country very different from the United States? 

All these incidents hide something from the public, because it’s unusual for a reporter to interview someone close to an issue and not get some kind of perspective.

Of course, the agencies had reasons. Someone hiding my car from me would have reasons. All the information belongs to the public.

Really. 

 Censorship stops and manipulates the public’s understanding. It’s one of the most debilitating and corrupting things that can happen to a society.

 

Please think about the gravity of this. Because none of us knows what is silenced or skewed in all these agencies. And your loved one will get a drug, or will go into a hospital in situation, where staff has been quiet about something --- for years.

Thank you.

We would seriously like your suggestions on harmonizing both professions’ work with the First Amendment.

New SPJ Article: PIOs as Censors

Linda Petersen and I write in a new article in Quill,  “Whether they like it or not, PIOs serve as censors for their bosses. Often staff members know a lot they won’t say when PIOs are tracking—at the leadership’s behest—who is talking to which reporter.”

Quill is the magazine of the Society of Professional Journalists. Petersen chairs the SPJ Freedom of Information Committee.

The article notes that reporters used to call up staff people in agencies and elsewhere and staff would give them what they needed.

“Not so anymore. From the largest federal department to the smallest city, everyone is trying to manage the media through the PIOs,” the piece points out.

It advises reporters, among other tactics, to, “Work hard to skirt the monitors.”

The article also urges reporters, “Investigate it. When did it start in your community? Did anyone have any ethical qualms about controlling information? Do they teach this at conferences for local officials?”

The September-October issue with the article, “PIO – Friend or Foe,” should be going up on the SPJ site soon.

From HHS: Serious Censorship on Serious Issues

On child abuse: The New York Times reported in July that a federal health services psychologist had told his superiors that child abuse on a North Dakota reservation was rampant and being ignored.

Portions of his emails about the situation had appeared in the New York Times.

Soon thereafter the Department of Health and Human Services leveled punishment against the psychologist. And soon thereafter it rescinded the punishment, according to the paper.

But in the midst of it all, HHS refused to allow the psychologist to talk to the New York Times reporter.

That HHS prohibition against two people talking to each other came just over two weeks after the investigative report headed by Louis Freeh on child abuse at Penn State hit the news saying that powerful leaders had concealed critical facts in that case.

Tuberculosis outbreak: Also in July, a public information officer at the Centers for Disease Control and Prevention forbade reporter Stacey Singer of the Palm Beach Post to speak to experts at that agency who had worked on a tuberculosis outbreak in Florida.

Singer had already identified staff involved in the work.

The reason given for prohibiting the communication was that “state/local health officials have the lead in responding to this situation.”

A letter from CDC to local officials that Singer obtained said the outbreak was one of the most extensive that the agency had been invited to assist with in about 20 years.

SPJ Survey: Many Journalists Say Federal Agencies' Interference with Reporting Is Censorship

A survey sponsored by the Society of Professional Journalists has found that 7 of 10 journalists who cover federal agencies consider government controls over who they interview a form of censorship.

Three-quarters of the 146 reporters who answered the survey said they have to get approval from a public affairs official before interviewing an agency employee.

About 85 percent of respondents agreed that, “The public is not getting the information it needs because of barriers agencies are imposing on journalists’ reporting practices.”

The entire survey is on the SPJ’s site.

NOAA Policy Allows Much More Openness Than Other Agencies

The National Oceanic and Atmospheric Administration has adopted a relatively open policy on scientists speaking to journalists, in sharp contrast to a number of other federal agencies.

In a questions-and-answers document on its new scientific integrity policy NOAA lists the question, “May I take phone calls from the media and give interviews?”The agency’s answer is, “Yes. There are no exceptions here.”

The document also says scientists are not required to do anything when asked by a reporter to give an interview, indicating that notification of the public relations office is not mandated.

It further says scientists are allowed to give their personal opinions in interviews, as long as they make clear they are not expressing the opinion of NOAA or the administration.

According to the actual NOAA scientific integrity policy statement, the policy covers all employees who deal with, or manage or communicate about science or use it for policy decisions, as well as contractors who do those things.

The policy is starkly different from that of the Department of Health and Human Services, for example, which states, “When approached by a reporter, HHS employees should work with their immediate supervisor and coordinate with the appropriate public affairs office/personnel in their agency.”

In addition to prohibiting journalists and staff members from speaking to each other without reporting to authorities, the HHS policy in practice limits information-gathering in a number of ways. The permission-seeking requirement for each contact inevitably slows the process. Public relations staff members monitor conversations by listening in on them. Many conversations never happen because they are excessively delayed or the agency prevents the contact in one way or another, sometimes blatantly denying contact between reporter and expert.

A number of other federal agencies, including the Environmental Protection Agency, have similar practices, according to reporters who cover them.

In an interview on NOAA’s scientific integrity statement, Justin Kenney, the agency’s director of communications and external affairs, said his philosophy is, “more is better,” and that NOAA should take every opportunity to talk about its science to reporters.

He added that the taxpayers pay for the work and the agency wants people to know about it.

Kenney confirmed that employees are not required to tell the public affairs office about conversations.

He said there has been no “push back” from other federal agencies about the level of openness of NOAA’s policy.

He did say there might be instances, such as when there is pending litigation, when NOAA would not want to comment.

According to the Scientific American “Observations” blog, NOAA’s administrator Jane Lubchenco said at a press conference in December that the policy “firmly supports our scientists and their scientific activities, protects the use of scientific findings and thus advances the public trust in NOAA science.”

It should be noted there is ample language in the NOAA Q-and-A document for supervisors who are so inclined to pressure staff to report conversations. The document says staff members not required to give interviews and they can always refer a call to public affairs. It also says that although staff members are not required to report conversations, “However, good practice suggests you should notify your public affairs officer and/or the head of your operating unit prior to or just after you give an interview.”

That’s because, the document says, managers, like other people, would not want to be surprised about detailed questions about their work.

Nevertheless, the NOAA policy allows the possibility of staff members and journalists speaking to each other fluidly, without reporting to the authorities, and confidentially if necessary.