A Second Legal Case Challenges Public Agency's Gag Rule for Journalists

A second legal case was filed this month on behalf of journalists opposing public agencies having restrictions on employees speaking to reporters.

In early December the owners of The Reporter sued the Delaware County (New York) Board of Supervisors for the county attorney’s mandate that all communications with the newspaper go through her office.

Previously the Board of Supervisors had revoked the paper’s designation as the outlet for legal advertising for the county, an action taken in retaliation for news coverage the Board of Supervisors did not like, the complaint alleges. It asserts that revocation violated the newspaper’s First Amendment rights.

After the Board’s action got coverage in the New York Times, along with such instances in other newspapers, the county attorney said that all communications with the paper should come through her, the paper’s complaint said.

It asserted, “This Court should also declare that Delaware County and Defendant Amy Merklen, by issuing the gag directive, violated both The Reporter’s First Amendment right to receive information from willing speakers and County employees’ First Amendment right to speak on matters of public concern, and thereby enjoin the enforcement of the gag directive.”

The action follows the suit by Brittany Hailer filed in August challenging the Allegheny County Jail in Pennsylvania for its policies prohibiting staff and contractors from speaking to the media or others about the jail without approval.

The Hailer suit is believed to be the first one ever filed on behalf of a journalist against these gag rules in public agencies. Other suits against such gag rules have been filed and often won by parties including employees and unions. The Hailer suit is still before the court.

At the time the Hailer suit was filed Claire Regan, then president of the Society of Professional Journalists, said, “These speech bans, which journalists have seen grow more pervasive and controlling, are among the most damaging threats to free speech and public welfare today.”

The Cornell Law School First Amendment Clinic and attorney Michael J. Grygiel are representing the New York newspaper. The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press are representing Brittany Hailer in Pennsylvania.

News coverage is here and here.

From Across the Nation: What the Culture of Gag Rules Does to Us

The Pittsburg Post-Gazette editorial board said that the journalist’s lawsuit, filed in August, against a public agency for banning employees from speaking to reporters, “could transform government transparency.”

Investigative journalist Brittany Hailer has sued the Allegheny County Jail for having those prohibitions, even while the facility allegedly has a high death rate.

On a recent Zoom program, Hailer said, “Something that we talk about a lot, in the death-in-custody stuff that we’re doing, is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

Elsewhere, in June, a Louisville Courier Journal review of 35 Kentucky state and local agencies' policies found “that 70% restrict or prohibit employees from talking to news outlets − some in ways that legal scholars say are unconstitutional.”

The Isthmus news outlet in Madison, Wisconsin, said a public information office physically blocked a reporter from approaching a public official but it’s much more common for PIOs to stymie reporters, “by ignoring emails, refusing to allow reporters to speak directly to frontline workers, requiring that reporters submit written questions and sitting on requested documents.”

Below is some of the coverage of the gag rule norm from around the nation, as well as online discussions of the Hailer case, and other resources.

Recent local coverage:

Isthmus, Madison, Wisconsin, July 10, 2023
“Running interference: Public information officers often forget the ‘public’ in their titles”
Judith Davidoff
https://isthmus.com/opinion/from-the-editor/running-interference/

Triblive, Southwestern Pennsylvania, September 14, 2023
“Aspinwall’s revived media policy raises freedom of speech concerns”
Michael Divittorio
https://triblive.com/local/valley-news-dispatch/aspinwall-revived-media-policy-raises-freedom-of-speech-concerns/

Pittsburg Post-Gazette, Pittsburgh, Pennsylvania, September 04, 2023
“Editorial: Pittsburgh journalist’s lawsuit could transform government transparency”
Editorial Board
https://www.post-gazette.com/opinion/editorials/2023/09/04/brittany-hailer-lawsuit-allegheny-county-jail/stories/20230904001
[Paywall applies.]

Louisville Courier Journal, Louisville, Kentucky, June 14, 2023
“‘Censorship by PIO’: Kentucky agencies' strict media rules putting a gag on workers”
Andrew Wolfson
Censorship: Are Kentucky agencies blocking employees' free speech? (courier-journal.com)
[Paywall applies.]


Recent Discussion Sessions on the Allegheny County Jail Suit

-- Recently, the New England Chapter of SPJ sponsored a zoom program on the Allegheny suit, moderated by First Amendment attorney Frank LoMonte, who has written a legal pathway for such actions.

-- A podcast by the Maryland, Delaware, and District of Columbia Press Association features the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke.



Earlier Resources:

-- The Society of Professional Journalists has said the controls are censorship and authoritarian.

-- Among many communications over years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for elimination of such restrictions in the federal government.

--Glen Nowak, a former CDC head of media relations and a longtime communications employee, has said that since the 1980s the restrictions on CDC staff have grown tighter with each presidential administration; every contact with a reporter is controlled by the higher political levels; and that this system “works” for officials in terms of suppressing information.

-- A 2022 Columbia Journalism Review article looks at the history of the restraints.

-- Journalism groups’ FOI officers told the New York Times in 2022 “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here.

-- “Editor and Publisher” featured the issue in October 2021.

YouTube Program: The Gag Rules and "Censorship by PIO" Are Now Everywhere. One Reporter is Moving to Take Legal Action

On October 19, the New England Chapter of SPJ hosted a zoom session on, “Fighting Gag Rules on Government Employees.”

In particular, this is about what may be the first suit by a journalist against this kind of censorship in a public agency.

These rules, despite being unconstitutional, are common in all levels of government, as well as private organizations.

Here’s the YouTube link.

--Frank LoMonte, First Amendment attorney who is now counsel at CNN, has previously said these rules are unconstitutional and courts have agreed with that. He said, “What kind of government would punish people for just for being dissidents, right? What kind of government would punish people for being critics of the official regime’s policy? And the answer is ours.”

--Brittany Hailer, the Pennsylvania investigative journalist who has filed the suit against the Allegheny County Jail, said, “Something that we talk about a lot in the death-in-custody stuff that we're doing is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

--Kathryn Foxhall said even now as we are still trying to figure out what happened during the pandemic and the dangers of doing or not doing particular research on viruses, the entire 70,000 person staff of HHS is trained not to speak to the reporters without notifying the authorities. Most of the time they can’t speak at all. “This is a horrific crime against humanity. It’s dictatorial control over what people can hear.” She also said, “It’s the press’ fault.”

SPJ press release on the suit, filed in August, with resources:

https://www.spj.org/news.asp?ref=2953

Punishing Dissidents; Deaths in Custody: Session on Controls on Reporting

On Thursday, the New England Chapter of SPJ hosted a zoom session on, “Fighting Gag Rules on Government Employees.”

In particular, this is about what may be the first suit by a journalist against this kind of censorship in a public agency.

Here’s the YouTube link.

--Frank LoMonte, First Amendment attorney who is now counsel at CNN, has previously said these rules are unconstitutional and courts have agreed with that. He said, “What kind of government would punish people for just for being dissidents, right? What kind of government would punish people for being critics of the official regime’s policy? And the answer is ours.”

--Brittany Hailer, the Pennsylvania investigative journalist who has filed the suit against the Allegheny County Jail, said, “Something that we talk about a lot in the death-in-custody stuff that we're doing is: had George Floyd crossed the threshold of his jail we never would have known what would happen. It would have entered a black box of information.”

--Kathryn Foxhall said even now as we are still trying to figure out what happened during the pandemic and the dangers of doing or not doing research on viruses, the entire 70,000 person staff of HHS is trained not to speak to the reporters without notifying the authorities. Most of the time they can’t speak at all. “This is a horrific crime against humanity. It’s dictatorial control over what people can hear.” She also said, “It’s the press’ fault.”

SPJ press release on the suit, filed in August, with resources:

https://www.spj.org/news.asp?ref=2953

In an Apparent First, Journalist Files Suit Against Gag Rules in A Public Agency

On August 17 Brittany Hailer filed what is believed to be the first suit by a journalist challenging gag rules a public agency. Below is the release from the Society of Professional Journalists at that time. Allegheny County has until October 23 to respond to the complaint.  

SPJ hails lawsuit to challenge gag rules in public agency:

The Society of Professional Journalists congratulated investigative journalist Brittany Hailer for her efforts challenging the Allegheny County Jail in Pennsylvania for its policies prohibiting staff and contractors from speaking to the media or others about the jail without approval.

As part of these efforts, Hailer filed on August 17 what is believed to be the first such lawsuit brought by a journalist. Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions. Journalism groups have been actively decrying such gag rules for at least a decade.

“These speech bans, which journalists have seen grow more pervasive and controlling, are among the most damaging threats to free speech and public welfare today,” said SPJ National President Claire Regan. “SPJ has repeatedly led in opposing these restrictions which it has called censorship and authoritarian. Hailer’s suit shows journalists themselves can fight back in court against people in power silencing subordinates in terms of talking to reporters or forcing them to report conversations to authorities.”

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, director of the Pittsburgh Institute for Nonprofit Journalism, whose work is funded in part by The Pulitzer Center.

The complaint says, “The Gag Rules prevent reporting that is urgently needed to inform the public about conditions and events at the Jail and unconstitutionally impede news coverage of the Jail needed for meaningful public oversight and accountability.”

Hailer has reported extensively on problems at the Allegheny County Jail. For example, the suit claims, since April 2020, at least 20 men have died after entering the jail, with circumstances of many of the deaths being unclear and, “in several cases, the Jail has never provided medical records to family members to confirm a cause of death.”

“This case presents an important issue for reporters at a time when agencies at every level of government are barring their employees from talking with the press,” said David Schulz, director of the Media Freedom and Information Access Clinic. “The issue at the heart of this case goes directly to the ability of the press to ferret out the news the public needs for democracy to function.”

These restrictions are sometimes referred to as “censorship by PIO,” because many agencies force employees to refer any reporter to their public information office rather than speak with them. SPJ surveys have shown the controls to be common in federal, state and local government, in science, education and police departments. Last year Glen Nowak, a former media relations head at the Centers for Disease Control and Prevention, said that from the 1980s forward each presidential administration tightened what that agency could say until every contact with a reporter had to be vetted through the political layers of government.

In 2019 Frank LoMonte, then head of the Brechner Center for Freedom of Information and SPJ Foundation board member, published a legal analysis and road map for this kind of action by journalists, saying, “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. The only question is whether the restraint will be treated as a presumptively unconstitutional prior restraint, or whether a less rigorous level of scrutiny will apply.”

Kathryn Foxhall, who was awarded the 2021 SPJ Wells Memorial Key for her extensive work opposing gag rules, said, “Information control is one of the most abusive, deadliest things in all human history, even when leaders believe in what they are doing. Journalists take pride in the notion that, ‘Good reporters get the story anyway.’ But we don’t know what remains hidden. We need to fight these bans as if many lives depend upon it. They do.”

SPJ hopes Hailer’s lawsuit will bring about similar challenges and reduce restrictive gag orders placed on public agencies that impede journalists’ important work.

Other Resources:

— A 2022 Columbia Journalism Review article by Foxhall gives a history of the restraints.

— SPJ has said the controls are censorship and authoritarian.

— SPJ has sponsored seven surveys showing that the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc.

— Among many communications over years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for elimination of such restrictions in the federal government

— Journalism groups’ freedom of information officers told The New York Times in 2022, “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here.

— Editor and Publisher featured the issue of censorship by PIO in October 2021.

To Editors: Isn't This Corruption of the Press Itself?

 The following are excerpts from a letter I sent repeatedly to editors at the Washington Post, The New York Times, Science and Scientific American. I have received only inconsequential replies.

The discussion is about the restraints on reporting, which often start with banning an organization’s staff from speaking to journalists without going through PIOs.

After years of work on this issue, I contend these systems, grown up over decades, are abusive, lethal corruption of the institutions of power, but also of the press. They are one of the prime causes of the pandemic failures and they are readying us for failures elsewhere. Some history is in my Columbia Journalism Review article.

I’d like to make this an open letter and I’m requesting your answers on my questions below.

Very importantly, a former CDC media relations head, probably as close a witness to this development as anyone, says that the controls tightened over decades because there was no push back; that they are very political; and that they have been successful in suppressing information.

CDC is only one salient example. These controls now exist from Congressional offices and most the federal establishment down to local police departments.

The opposition work against this has gone on for some time. The Society of Professional Journalists has said the controls are censorship and authoritarian. The extensive legal analysis from The Brechner Center for Freedom of Information found that these constraints, though very common, are unconstitutional and many courts have agreed with that. (The longer version is a legal article.)  Among many other communications over years, 25 journalism and other groups wrote to the Biden Administration calling for elimination of such restrictions in the federal government. Journalism groups FOI officers told the New York Times the press should be openly fighting these controls.

Many journalists’ answers to this situation are along the lines that reporters work hard, are highly skilled and have some contacts who will talk to them. However, that does not tell us what proportion of critical issues we understand. It does add perspective to notice how many serious problems come to light only after they have existed for a long time.

Despite some very impressive journalism in your publications, all journalists are missing stories and parts of the stories because most people around the situations are successfully blocked from talking, even after the stories are published.

 

My questions include:

---Why isn’t this historically hazardous? Why wouldn’t human institutions, including government agencies, develop corrosion after years of controlling public scrutiny of themselves? Given that we are still struggling to understand what happened in the pandemic, is the fact that all HHS staff are constrained in their speech a crime against humanity?

---Is there any reason to think journalists are getting the majority of what is most critical given that so many people close to the situations are silenced?

---What are the ethics of journalists working under these controls without openly opposing them or explaining them to the public? Is the press empowering lethal censorship?

---Control of information is at least one of the deadliest things in human history. Now we are in an era of existentialist threats to humanity. Why are we taking the risk of allowing any new constraints on reporting?

 

Also, would you confirm that:

---For many years reporters have not had routine physical access to HHS facilities, including FDA or CDC?

---There is no credentialling system to allow reporters access to those facilities?

---Usually, reporters must go through the public information officers to speak to anyone at HHS agencies, because employees are instructed not to talk to them otherwise? (This is with the understanding that sometimes staffers do defy the rules and talk to reporters without going through channels.)

---Frequently reporters are blocked from speaking to people they request at HHS agencies, either because the request is denied outright or because the permission process takes so long the reporter can’t wait?

---Reporters were under these controls the entire time, as well as years before, while we had a mass death event?

 

The Basics from Former CDC Media Relations Head:

About Administrations’ Controls and Remaining Elected

In an interview with me Glen Nowak, former head of CDC media relations said that:

---Scientists and others are unlikely to talk to reporters without oversight by the public information office because they have been “trained.”

---Since the 1980s, each political administration saw that the prior administration had experienced no ill effects from tightening the controls and proceeded to tighten them further.

---Every contact between a reporter and employee must be authorized up through the HHS Assistant Secretary of Public Affairs, who is often a communications person from the presidential campaign. That person, “can say yes or no, or they can add their recommendations and thoughts to the key messages, and they can decide whether if this is something that should be elevated to either the awareness level at the White House….”  

---“So, administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through, you know: how will this help or not help when it comes to running for election? How will this help maintain or grow support? And so, yeah, that’s basically the bottom line,” Nowak said.

Courier Journal Finds "Censorship by PIO" Is Common in Kentucky Government

Although a legal review has said the practice is unconstitutional, the Courier Journal article says that its review of “35 Kentucky state and local agencies’ policies found that 70% restrict or prohibit employees from talking to news outlets….”

“Punishments are rarely imposed by local and state agencies for violations, but in July 2022, then-LMPD Chief Erika Shields suspended Officer Donavis Duncan for two days without pay for giving several interviews to news outlets about the death of Breonna Taylor, who lived in his apartment building,” the article says.

According to the Courier Journal the state attorney general’s office says, “Employees shall refrain from commenting to the media on matters involving office policy, cases, opinions and investigations or any other business of the Office of the Attorney General.” The policy adds that any employee “who fails to follow this policy may be subject to corrective disciplinary action up to and including dismissal.”

The article quotes Frank LoMonte, a First Amendment attorney and now counsel for CNN, as saying: “Though the practice of gagging public employees from giving unapproved interviews is pervasive across all levels of government, decades’ worth of First Amendment caselaw demonstrates that blanket restrictions on speaking to the media are legally unenforceable.”

Many of the same type policies are in effect in many state and localities, according to surveys sponsored by the Society of Professional Journalists.

The article is on the newspaper’s site. A firewall applies.

The Child Separation Story: Reporters Should Have Been There

 This went to Jeffrey Goldberg, Editor in Chief, The Atlantic magazine, on May 9. 

Mr. Goldberg:

 Thank you so much for the story on the separation of the children and congratulations on the Pulitzer Prize.

 After years of working with SPJ and others on the gag rules in agencies, etc., I’m asking some “direct” questions, not just of you, but of many journalists.

 Doesn’t your separation story show that journalists have an obligation to be there in the government agencies and to be talking to people without PIO or other authorities monitoring? Or to be fighting like all hell to end the policies that block that?

 Isn’t there a solid chance that this whole horror of human rights abuse would not have happened if reporters had been there and had no censors on their communications?

 FYI, an extensive review by Frank LoMonte, prominent First Amendment attorney, says journalists can sue on this issue and would have a great chance of winning.

Thanks for your attention. Below is part of my email to The Atlantic from last fall which explains more.

I hope we can talk.

Thanks,

Kathryn Foxhall

 Please note: Glen Nowak, a former CDC head of media relations and longtime communications employee, has said that since the 1980s the restrictions on CDC staff have grown tighter with each presidential administration; every contact is controlled up through the political levels; and that this system “works” for officials in terms of suppressing information.

 Over the last 30-40 years there has been a trend in employers and others banning subordinates from speaking to the press without oversight from authorities. This is often done through a public information office.

 My 2022 article in the Columbia Journalism Review is on the history of this trend. I am a longtime health reporter and serve as a sort of point person on the gag rules.

 I wanted to ask the Atlantic in particular to consider this because the story on child separation is very impressive. But as with so many other stories, the whole situation probably could have been avoided had reporters not been under such intense censorship: locked out of buildings and facing thousands of staff people forbidden to talk to us. Is it ethical for any of us to get such a story after the fact and not explain and fight the restrictions on reporters?

 The same is true of Covid. We now have at least six million dead and virtually all 90 thousand people in HHS essentially silenced, as they have been for years.

 The system looks like this: All employees are prohibited to speak to reporters without oversight starting with the public information office. Then when a reporter contacts PIOs for permission to talk to someone, the request must go up through the political layers of government, at least to the HHS Secretary of Public Affairs and often to the White House. Behind closed doors officials decide who may speak to whom and what may be discussed.

From all reports we have heard, most requests from reporters’ to speak to someone are not granted.

 The situation is a horrific danger to human welfare. The conflict of interest for agency leaders is overwhelming given they have controls over what journalists can discern about them and their work.  Informed consent can hardly be real when the entire population is blocked from getting independent perspective on what agencies do to impact them.

 There is an excellent chance that specialized reporters, if they had been free to network within the buildings or do normal communication could have told an expert audience about the agency’s problems long before they resulted in pandemic failures.

 Please note among other things:

 -- The Society of Professional Journalists has said the controls are censorship and authoritarian.

-- The extensive legal analysis from The Brechner Center for Freedom of Information finds that these constraints, although very common, are unconstitutional and many courts have agreed with that. (The longer version is a legal brief.)

-- Among many communications over years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for elimination of such restrictions in the federal government.

 I hope we can talk.

 Other Resources

-- Journalism groups’ FOI officers told the New York Times, “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here.

-- “Editor and Publisher” featured the issue in October 2021.

-- My bio: I have been a reporter mostly covering federal health agencies for over 40 years, including 14 years as editor of The Nation’s Health at the American Public Health Association. I have served as a point person on the issue of gag rules for over eight years. I was honored to receive the 2021 Wells Key, the highest honor for a member of the Society of Professional Journalists, specifically for this work.

 

 

Cato Institute Panelists: Yes, The Gag Rules Were Key to the Failures in the Pandemic

This was my question put forth for a December session at the Cato Institute about the Centers for Disease Control and Prevention:

“Over the last 30-40 years there has been a trend in employers banning subordinates from speaking to the press without the authorities’ oversight, often through a public information office. Having covered CDC before and after these controls, I have zero doubt these restrictions were key in the agency’s failures. Given the deadly history of information control, the question is: why wouldn’t they be key to the agency’s failures?”

Ronald Bailey, Science Correspondent for Reason Magazine and adjunct scholar of the Cato Institute, answered: “As a science journalist--science policy journalist--I completely agree with that. Years ago, when I was beginning, I could call up anybody at a federal agency, basically. USDA if I wanted to talk about genetically modified crops, for example, or at the FDA for new treatments, and could get the person on the line who’s the actual researcher and say, ‘So what's going on? Tell me what’s going on.’ And that slowly but surely began to clamp down. It began under the Clinton administration. It got worse and worse over time. And eventually I stopped calling because what happens is that you identify the person who you want to talk to, you call them. They say, ‘I have to get up with my public information officer first.’ Then, the public information officer will say a week later, ‘You can talk to them, but I’m going to be on the line listening.’ And eventually, basically, you had the possibility of independent information coming out of the agencies to a journalist: it just died on the vine. So, I think a lot of people have had this experience in the journalism world. I think it’s terrible. These people are public servants. They should be able to speak to the rest of us as they would any other citizen, in my humble opinion.”

Martin A. Makary, MD, MPH, professor of surgery, Johns Hopkins University School of Medicine and professor of health policy and management, Johns Hopkins University Bloomberg School of Public Health, said, “I think that the quote you read is so key to understanding this pandemic. A leader in [a journalism organization] says that basically tens of thousands of scientists across all these agencies have been gagged. They are not allowed to speak to the media. That is toxic. I mean: that is toxic. In science, that is sort of, you know, the ultimate golden rule that we reserve the right to speak freely about what we believe to be the truth. And so that, I think, was a huge part. Now, I got a chance to talk to so many people who work in agencies: number two, number three, level people, at different departments, and I wrote a piece for Bari Weiss showing that there is not consensus there. When their director gets up there, there are people very high up who are so fed up. They are quitting. They are leaving in droves. They are pissed off. One of them told me that they feel like they’re watching a horror movie and they are forced to keep their eyes open. They couldn’t believe it: ‘I can’t speak.’ A journalist will reach out and the Communications Department at the NIH will say: “We have a media inquiry for you. Tell us what you’re going to tell them and then we will decide whether or not you can do it.” I mean, my parents grew up with state-controlled TV. I think that’s better than what we’re seeing in the NIH.”

Makary, in his last comment for the session said, “Everyone likes to peg what you say as, alright, ‘Are you on my political side or their political side?’….Let’s put all that aside and allow people to speak out freely, namely the many thousands of scientists at the NIH and CDC and HHS who have been gagged from speaking to the public. That is probably the worst poison in our government that persists today. A problem that we can fix, that we have not yet fixed.”

[Makary co-authored the article “U.S. Public Health Agencies Aren’t ‘Following the Science,’ Officials Say,” in The Free Press.]

Time mark: The discussion of the gag rules in the Cato session video begins at about 40.14 minutes.