Committee Kills Provisions to Allow Federal Scientists to Talk to Reporters without Prior Approval

Earlier this year Paul Tonko (D-NY) introduced the Scientific Integrity Act (H.R. 1709) which, among other things, would have given federal scientists the right to speak to reporters without prior approval from their agencies. A companion bill was introduced by Senator Brian Schatz (D-HI).

One might argue that provision would have done more harm to free speech than good: it would have helped entrench the idea that people have the right to speak only under special circumstances, like having a science degree. It would also have allowed agencies to require the scientists to report the subject of press interview. Having to report an interview, of course, means being prohibited from ever speaking in confidence with a reporter, routinely depriving the public of much information about what is really happening.

Nevertheless, introduction of the provision could be seen as an important step to raise the idea in Congress that silencing many thousand federal employees in terms of talking to reporters—the effect of the current heavy oversight and permission rules—might not be a good thing. However, the provision apparently offered far too much openness, and it was killed in a mark-up session on October 17 in the House Science, Space and Technology Committee. 

Congressman Tonko asked the committee to consider instead a new version of the bill that eliminated the right of scientists to speak to reporters without first getting permission. It would have, instead, allowed scientists to, “respond to media interview requests regarding scientific or technical findings from research conducted by, or research related to that conducted by the individual, while ensuring full compliance with limits on disclosure of classified information.”

The bill would have also allowed the scientists to present opinions beyond the scope of their research findings, if they presented them as personal opinions and not statements on behalf of the agency.

It also would have required agencies to have clear guidelines for how scientists could respond to media requests that would, “not delay or impede without scientific merit the communication of scientific or technical findings to the media.”

Even that version was too much.

Rep. Frank Lucas (R-OK), the ranking member of the committee, offered an amendment to delete those provisions on media requests, citing concern that the legislation would dictate “how federal scientists and agencies handle media requests.” Saying many agencies already have media procedures in place as part of their scientific integrity policies, he said, “Every administration deserves the opportunity to shape policy and message. That's why we hold elections.”

Lucas continued, “The job of scientists is to conduct research and the job of policymakers is to develop policy which is a complicated process that involves weighing many factors including science. Science should also help inform policy not be policy.”

As apparently had been agreed upon before the mark-up session, Rep. Tonko said he accepted the amendment for the sake of the overall bill.

The Committee passed that version the bill 25-6.

The legislation would also require all covered agencies to adopt and enforce a scientific integrity policy that will be approved by the Office of Science and Technology Policy. Those policies would do things like prohibit scientists from engaging in misconduct and prohibit suppression or delaying of scientific findings without scientific merit.

It would allow federal scientists to participate in scientific conferences, sit on scientific advisory or governing boards, contribute to the academic peer-review process. Each covered agency would be required to have a scientific integrity officer, an administrative process and dispute resolution process. 

Video of the markup session in on the committee website, with the discussion of H.R. 1709 beginning at about minutes 39.

Science Magazine and EOS reported on the markup.

Maybe A Breakthrough: Brechner Center Says PIO Constraints Have Never Survived Constitutional Challenge

A new, maybe landmark, report from the Brechner Center for Freedom of Information, asserts, “Although rules and policies requiring government employees to get approval before speaking to the news media are widely enforced, no such policy as ever survived a constitutional challenge.”

Frank LoMonte, Director of the Center, has worked closely with the Society of Professional Journalists and others in bringing to the fore the issue of mandated clearance or “Censorship by PIO.”

Some government agencies cite the 2006 Supreme Court case Garcetti v. Ceballos as authority to prohibit employees from speaking to journalists without going through the public information officers.

However, the new report says that case is about “when an employee speaks as part of a work assignment, that speech belongs to the employer, and the employee has no First Amendment claim if punished for performing the assignment in a way the employer finds unsatisfactory.”

The Brechner Center argues, “The government faces a much more demanding burden to justify a blanket restraint on speaking to the press than to justify punishing one particular speaker whose speech undermines the agency’s effectiveness.”

The center reviewed state and federal caselaw back to the 1940s and found nearly two dozen cases, “in which a court has struck down a blanket policy requiring public employees to get approval before speaking about their work.”

The report quotes one judge in the 1970s as saying, “The protected right to publish the news would be of little value in the absence of sources from which to obtain it.”

Some things that government public relations offices can legally do include coaching employees about giving interviews and issuing statements from the agency’s perspective, says the report. However, it concludes, “What they cannot do is compel either employees or journalists to clear every conversation in advance.”

“Censored 2020” Includes Essay on “Censorship by PIO”

I am happy to say the annual book, “Censored 2020,” is out and contains my essay on “Censorship by PIO.”


After expounding on terrifying stuff in federal agencies, like Smallpox virus that sat around for decades waiting to be sold to terrorists or whatever, I say:

 “We, the press, just weren’t there. By turning a blind eye to those closed doors and gagged people, we turn a blind eye to horrific situations.”

The essay recounts agencies not allowing contact with such small fry publications as the New York Times and the Washington Post.
 
The book is published by Seven Stories Press.

Massive Failure by FDA, Massive Failure by the Press

Katherine Eban is testifying before Congress and elsewhere about her book, “Bottle of Lies,” which paints a stunning, deeply researched picture of FDA being unable to ensure the safe manufacture of most drugs we take.

As a New York Times preview summarized it: “The fake quality-control data, bird infestations and toxic impurities at the overseas plants that could be making your medication.”

Among other horrors, Eban explains that sloppy manufacturing is one thing that can lead to substandard antibiotics that could contribute to microbes’ resistance to the drugs used to control them. Researchers fear such resistance will kill millions of people in the future.

“Eighty percent of active ingredients for both our brand and generic drugs come from abroad, the majority from India and China. America makes almost none of its own antibiotics anymore,” Eban said in the New York Times piece.

The book took Eban 10 years to write, while people most certainly died due to poor drug quality. During those years reporters usually were not able to talk to people in FDA or not able to talk to them without censors, because FDA prohibited that many years ago. It’s been over two decades since the agency kicked reporters out of its building.

That kind of contact is at the heart of reporting. It’s no wonder we did not know what was happening and it took a top investigative reporter a decade to do what might have taken less than half a year, if people weren’t silenced. Indeed, reporters might have been regularly covered this story indepth.

The book is critical journalism that reveals massive, long-term failures in journalism. Reporters are happily unaware of dangerous agency failure. We publish stories mostly from FDA releases, briefings, public meetings or other highly controlled information, knowing all the while the approximately16,000 staff are officially silenced and usually actually silenced. However, we make money. FDA looks good.

Here in the U.S. is a book which according to official FDA rules is banned information flow, since it exists because someone did defy the rules to provide information to a journalist.

Of course, as Society of Professional Journalists’ surveys show, such rules for silencing employees are now widespread across the country. They are a cultural norm, a system for burning books and other information before they exist.

SPJ Calls Constraints on People Talking to Reporters "Authoritarian"

The constraints that have grown up to stop journalists from speaking to people without notifying authorities are authoritarian, states a resolution passed by the Society of Professional Journalists September 7 (below or on the website).

The statement says journalists have a responsibility to fight the constraints.

“Journalists’ obligation to do all they can to seek the full truth includes fighting against barriers to understanding the full truth and reporting those barriers to the public,” says the statement passed by official delegates at the society’s meeting in San Antonio, Texas.

(Full disclosure: I drafted the resolution. It was sponsored by the SPJ Freedom of Information Committee.)

In the last 20-30 years there has been a surge of employers and others prohibiting people to communicate with journalists without going through public information officers or other authorities. In, reality, journalists often are never allowed to speak to the people they request.

Information on the issue, including the seven surveys SPJ has sponsored, is on the society’s website about it: https://www.spj.org/pios.asp.

The new resolution says, “The public has a right to be dubious about information coming from public or private organizations where employees are silenced in terms of communicating to the press or where they cannot speak without guards.”

It calls for currently proposed legislation in Congress to ensure that all federal employees—not just scientists—be able to communicate with the press without reporting contacts to anyone.

In a 2017 resolution, the society said these practices are censorship and a grave risk to public welfare: https://www.spj.org/res2017.asp#2

Resolution No. 2

Allowing Federal Employees to Freely Talk with the Press
Submitted by: SPJ Freedom of Information Committee
Delegate Action: Approved

WHEREAS the ability of people to speak to each other normally, without being pressured to report conversations to the authorities or to anyone, is essential to public welfare and democracy;

WHEREAS the Society of Professional Journalists has carefully studied and repeatedly decried the cultural norm that has grown up in many arenas of prohibiting employees and others from communicating with journalists without going through or reporting to a public information officer or other authority;

WHEREAS the prohibitions against communicating with journalists and the pressures to report contacts are authoritarian and prevent source people from explaining many things that are the public’s business and certainly interlace with other current pressures on speech to weaken society and create extraordinarily dangerous situations;

WHEREAS in a democracy, it is more appropriate for the public and the press to have oversight over the communications of people in power rather than the reverse;

WHEREAS proposed compromises that would allow reporters to communicate with whom they wish, but would still force employees or others to report contacts are dangerously intimidating to communication;

WHEREAS proposed compromises that would allow people in power to mandate reporting of contacts after they occur are also dangerously intimidating to communication;

WHEREAS such compromises are insidious because they often empower journalists to gather some information while being unaware of how much the source people speaking under this censorship will not mention;

WHEREAS in spite of journalistic skills, triumphs, prowess, breakthroughs and impressive stories and in spite of the fact some sources do leak, journalists cannot know what they miss when people are under pressure to not communicate or pressure to report contacts with journalists;

WHEREAS journalists’ obligation to do all they can to seek the full truth includes fighting against barriers to understanding the full truth and reporting those barriers to the public;

WHEREAS the public has a right to be dubious about information coming from public or private organizations where employees are silenced in terms of communicating to the press or where they cannot speak without guards;

WHEREAS the SPJ stresses to people in public and private leadership that these restrictions routinely hide information from the leaders themselves; from the professionals and others who focus on the subjects being discussed; and from the rest of the public; and

WHEREAS Rep. Paul Tonko (D-NY) and Sen. Brian Schatz (D-HI) have introduced into Congress the Scientific Integrity Act (H.R. 1709 and S. 775) which has the intent of allowing federal scientists to speak to the media as well as publish scientific findings, participate in scientific organizations and communicate in other ways;

THEREFORE LET IT BE RESOLVED the Society of Professional Journalists, meeting in convention on September 7, 2019 in San Antonio, Texas calls on Rep. Tonko, Sen. Schatz and others in Congress to ensure any such legislation supports the right of unimpeded communication with journalists for all federal employees and not just for scientists;

LET IT BE FURTHER RESOLVED that any such legislation ensure that all federal employees have the right to communicate with the press without reporting contacts with the authorities or anyone, before or after the contacts; and that reporters making requests to an agency be able to speak to the requested persons and not be confined to spokespersons.

LET IT BE FURTHER RESOLVED that SPJ calls on Congress and the Executive Branch to complete a thorough examination on why free speech has become so undermined for millions of people that legislation is needed to allow free speech, without reporting to authorities and on what those restrictions do to the nation’s functioning.

LET IT BE FINALLY RESOLVED that SPJ calls on people in leadership in all arenas, including sports, education, police operations, state and local government, science and others, to work to eliminate these restrictions, because they create ignorance in all of us and induce corrosion that impacts everyone.