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.