To the White House about Public Participation: The Corruption of Government Gag Rules

To the White House Office of Management and Budget:

The Bans on Staff Members Speaking Freely to Journalists Are a Great Risk to Us All

I am commenting on the “Draft Public Participation and Community Engagement (PPCE) Guidance and Toolkit.”

Over several decades, agencies and offices in the United States have begun prohibiting employees and subordinates from speaking to the press without involving the authorities, often through a public information office. Related barriers include blocking requested contacts or delaying them until the reporter gives up; limiting the number of briefings; limiting briefings in terms of time and questions permitted; and not allowing the spokesperson’s name to be published.

Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the elimination of such restrictions in the federal government.  We received no response although we followed up several times.

These restrictions on contacts with journalists have been adopted as policy in most federal agencies, without any substantial public discussion of their impact. (See the collection of media policies.) They are also in entities, public and private, from Congressional agencies to local police departments.

Journalists can take pride in some excellent journalism that is published. However, these constraints are information control by people in power, one of the most dangerous things in human societies. They are routinely successful in keeping information away from the press and thus away from nearly everyone. They are dictatorial and an ongoing menace to public welfare.

They are a strong foundation for future increases in authoritarian restrictions.

I understand the need for agencies and other entities to have an official avenue for the release of official information. I know some things are legitimately confidential. I appreciate the need for both staff and journalists to distinguish between statements that are official policy and those that are not.

I also recognize that in this fraught time of misinformation, disinformation and attacks on agencies, officials face many difficulties in putting out honest messages and moving forward with their organization’s work.

Nevertheless, journalists know there is always perspective, background, and tips that source people will not mention when they are under the power structure’s scrutiny.

We also know these controls can become political.

Former CDC media relations head Glen Nowak has said the agency’s controls began with President Reagan. Each new administration realized the constraints had not caused the previous administration serious political consequences and proceeded to make the rules more controlling.

Nowak said: “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: how will this help or not help when it comes to running for election…. A serious health threat can be underplayed or ignored if it doesn’t align with political ideology of the party in power, or a party is trying to get power.”

I feel certain that if reporters, from mainstream or specialized outlets, had been able to talk normally with CDC staff, some of the disfunction in the agency would have been corrected prior to the pandemic. It is extraordinarily shameful that did not happen.

The OMB draft guidance document says, “The promise is to keep the public informed and provide accurate and transparent communications from the agency.”

However, members of the public are at severe disadvantage when they are allowed to know only what officials decide may be released.

Please note:

-- The Brechner Center for Freedom of Information provided foundational thinking on these restrictions in a 2019 report. It says these constraints are unconstitutional, that many courts have said so, and that journalists are able to bring their own legal actions. A shorter version of that report is here.

-- In a groundbreaking case, journalist Brittany Hailer sued the Allegheny County Jail in Pittsburgh which prohibited even medical personnel from talking to reporters, although a high death rate was alleged. In April, Hailer, represented by Yale Law School Media Freedom and Information Access Clinic and the Reporters’ Committee for Freedom of the Press, won a favorable settlement with strong First Amendment language supporting employees’ and contractors’ right to speak to reporters.

I am asking the White House Office of Management and Budget these questions:

---How can these restrictions be legal, ethical or democratic?

---How do they compare to speech restraints in undemocratic regimes?

---Are they not dangerous to the public, given that information is blocked on the work to protect public welfare?

Further information is available from this resource listing.

Thank you.

Kathryn Foxhall

2021 SPJ Wells Key Awardee for work against restraints on reporting


Resources:

-- An article in the Columbia Journalism Review is on the history of this trend which has made the gag rules pervasive in many kinds of entities.


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

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

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

-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. 

-A review of actions is in the PR Office Censorship blog.

To CDC: Please Confirm: Controls on Reporters During The Pandemic

Open Letter to Dr. Cohen

Dr. Mandy Cohen
Director,
United States Centers for Disease Control and Prevention

Dr. Cohen:

I was for 14 years (1978-1992) editor of The Nation’s Health at the American Public Health Association. I was honored to know some of the public health greats of the 20th century. I count myself second to no one in admiration of public health: the triumphs, the science, the effectiveness of population-based care, and especially the professionals, many of whom are devoted, indeed personally captured, by public health’s criticality.

In recent years I have served as a point person for the Society of Professional Journalists and others in opposing the gag rules culture that has grown up in the U.S., as people in power silence employees and others.

I have harsh but necessary questions, including why the restrictions on journalists’ newsgathering, now at CDC and many other entities, are not human rights abuse and inevitably a mass degradation of public welfare.

Some decades ago, agencies began to ban employees from speaking to reporters or ban them from doing so without the authorities’ involvement, often through a public information office. Other controls were built using the gag rules as foundation, including limiting official briefings and having PIOs sit in and guide contacts.

Glen Nowak, a former CDC communications director with many years at the agency, had laid out the issue for journalists: presidential administrations hand down instructions on who reporters may talk and what may be said; the controls have been tightened with every president since Reagan; and they are explicitly political.

Nowak said, “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: ‘How will this help or not help when it comes to running for election? How will this help maintain or grow support?’”

“Government and elected officials have seen that controls make it harder to do [stories those official don’t favor] and diminish the visibility and prevalence of those stories. So, from their perspective, it works,” he said.

Over more than 30 years the controls expanded with little public discussion of their legitimacy or impact. Many journalists saw this transition take place.

CDC routinely fended off public scrutiny according to the thoughts or inclinations of a few people. Then we discovered the agency was not ready for an infectious disease crisis, a key reason for its existence.

These restrictions block information gathering by prohibiting staff from talking confidentially to journalists; by making any contact with staff so cumbersome it is often infeasible; by deliberately blocking contacts altogether; and by using this power over contacts for political purposes.

Some journalists and others have been fighting these restraints for years.

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

Journalism groups’ freedom of information 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.

Prominent First Amendment attorney Frank LoMonte, who has done extensive research on these controls, says they are unconstitutional, many courts have said so, and journalists can bring their own legal actions.

This year reporter Brittany Hailer won what is apparently the first legal settlement for a journalist against these prohibitions in a public agency.

Information control is one of the deadliest things in all human history given suppression of information for personal gain and accountability avoidance, propaganda to support many things including military conflict, discrimination, genocide, etc.

It is the antithesis of public health.

Questions to CDC for The Record:

In full recognition of the fact that free speech in agencies and elsewhere can be seriously problematic, is there any evidence in history that such controls on newsgathering are better for human welfare than unfettered speech and newsgathering?

Would you confirm that during the entire official period of the Covid public health emergency, and many years prior, journalists were not allowed in CDC facilities with possible exceptions for meetings or when they were escorted?

Would you confirm that also during that period contact was banned between journalists and employees without authorities’ involvement, often through the public information office?

Would you confirm these constraints are in great part mandated by the political administrations?

Would you confirm that such issues as whether a contact with a journalist will take place and what may be discussed are controlled by the Office of the Assistant Secretary of Public Affairs, people in the White House or other political officials? Consistently or often?

Is there any type of independent observer who is within the agency or who has free access to contact agency employees? For instance, do we have many inspectors-general or other such personnel focused on the agency? Are there any such persons who can closely observe the agency for accountability purposes?

Why wouldn’t the restrictions on the press be one key cause of the missteps that exacerbated the pandemic? Weren’t staff members who were expert in this field, including the lack of readiness, blocked for years from speaking to journalists or blocked from doing so without the involvement of the authorities?

What are the bioethical implications of withholding information from the public and don’t these restrictions on speech inevitably withhold information? Are these restrictions, covering so many issues, so many potential speakers over decades not the equivalent of myriad Tuskegee experiments?

What right does any group of people have to control the speech of others outside of defined, narrow circumstances such as privacy protection or national security?

CDC has spoken repeatedly about rebuilding trust with the public. I deeply regret to ask: Is it not a citizen’s critical responsibility to avoid trusting powerful entities that control information about themselves, or have such curbs imposed on them? Is such skepticism not especially essential when any entity is responsible for human welfare?

Will CDC call for an independent examination of how the controls on the press affect public health, including how the current norm of prohibiting speech by people across the federal government and in all kinds of entities, state and local, public and private?

I’m asking for answers on the record for commentary, for professionals young and veteran, for historians and other researchers.

I’m attaching a background paper.

I’d be happy to talk with you or any of your staff.

Thanks for your attention.

Kathryn Foxhall
SPJ 2021 Wells Key Awardee
For work against gag rules


CC:
CDC Communications and Other Staff
The CDC Director's Advisory Committee

Caroline Hendrie
Executive Director
Society of Professional Journalists

Ashanti Blaize-Hopkins
President
Society of Professional Journalists

Resources on The Growing Gag Rules and "Censorship by PIO" Over A Decade

 Over the last 30-40 years there has been a surge in government agencies, businesses, nonprofits and other entities prohibiting employees from speaking to reporters without oversight by the people in the power structure, often through public information offices.

In effect, most employees in these organizations are silenced, because the reporters can’t get to them for even a five-minute chat. When reporters are allowed to talk to them the power structure knows who is talking to whom. Often, any conversation has PIO minders overseeing it.

By commonsense estimates the impact on public information is vast. For one example, according to journalists’ observation and experiences, thousands of contacts requested by reporters with people in the federal Department of Health and Human Services were blocked in the years before and during the time the agency’s missteps exacerbated the Covid pandemic. Then, there were news reports on problems, which had they been published earlier, could have saved lives.

A number of journalists and others have been fighting these restraints for at least a decade and a half.

Questions for research include: what are the details on history of these restrictions; what are their effects; are they dictatorial; what incentives keep media organizations from openly opposing them despite legal experts’ findings that they are unconstitutional; how frequently are the restrictions used for political advantage; and how does this information control relate to signs of decay in democracy?

 

Some Basic Resources:

Former CDC Comms Director Talks about Political Control, etc.

-- Glen Nowak, a former CDC communications director with many years at the agency, has laid out the issue for journalists: presidential administrations hand down instructions on whom reporters may talk to and what may be said; the controls have been tightened with every president since Reagan; and they are explicitly political.

Nowak said, “Administrations, typically, their priority is trying to remain elected. And they’re often looking at policies through: ‘How will this help or not help when it comes to running for election? How will this help maintain or grow support?’”

“Government and elected officials have seen that controls make it harder to do [stories those officials don’t favor] and diminish the visibility and prevalence of those stories. So, from their perspective, it works,” he said.

In an Apparent First, Journalist Sues and Wins Settlement Against Gag Rules

--- In what is believed to be the first suit by a journalist on their own accord against such restrictions in a public agency, investigative reporter Brittany Hailer filed a legal action last August. In April, 2024 Hailer won a favorable settlement, with good First Amendment language, against the Allegheny County Jail where employees and contractors were forbidden to speak even while there were inmates deaths. 

25 Groups Call for Biden Administration to End the Restrictions

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

Journalism FOI Officers Tell NYT the Press Should Not Be Taking the Risk

--- Three 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.

First Amendment Attorney Lays Path for Journalists’ Legal Fight

---- Prominent First Amendment attorney Frank LoMonte, who has done extensive research on these controls, says they are unconstitutional, many courts have said so, and journalists can bring their own legal actions. A Brechner Center report has a summary.

 ---- Other pieces from LoMonte’s work on the gag rules include:

----- A Brechner Center report, You Have the Duty to Remain Silent: How Workplace Gag Rules Frustrate Police Accountability (uakron.edu), says, “law enforcement officers have information that the public would benefit from hearing,” and prior restraints on public employee speech are unconstitutional.
----- Policing Transparency; IJ Jackson, F LoMonte; Hum. Rts. 44, 11.
----- Orange is the News Blackout: The First Amendment and Media Access to Jails: FD LoMonte, J Terkovic; Marquette Law Review 104 (4).
----- How Workplace Gag Rules Frustrate Police Accountability; FD LoMonte, J Terkovich.

 

The Society of Professional Journalists Has Collections of Media Policies and Surveys, etc.

--- SPJ has a collection of restrictive media policies from federal, state and other agencies.

--- SPJ did surveys from 2012-2016 of the media controls in federal, state and local governments; education; science; and police departments. The studies found pervasive use of these controls in many kinds of entities. Asked why they monitor interviews, some police PIOs said things like: “To ensure the interviews stay within the parameters that we want.”

--- SPJ PIO page has collections with case studies, the SPJ surveys, letters to the White House from SPJ and other groups over several years, SPJ’s White House meeting with Obama administration officials, and articles going back to 2011.

 

Articles on the History of the Gag Rules

--- A 2022 Columbia Journalism Review article talks about the history of this close down on contacts. The PIO-related reporting constraints, said a prominent reporter, “became kind of omnipresent as the years went on.”

--- A veteran FDA reporter talks about how the agency controls came down on reporters. Like many other reporters he talks about walking the halls for years, then being kicked out of the facility, and then seeing rules gradually tighten so he could not talk to anyone in the agency.

 

Other Resources:

--- A June 2024 Voice of America article tells the story of the settlement won against the gag rules at the Allegheny County Jail.

--- The Louisville Courier-Journal did an article, June 14, 2023, on the media restrictions in Kentucky. 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….”

--- The SPJ New England Chapter sponsored a 2023 zoom program on gag rules moderated by First Amendment attorney Frank LoMonte.

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

--- An article in FAIR.org gives some overview.

--- The blog PrOfficeCensorship has stories going back to 2011, including a listing of 2023 articles from around the nation.

---  In 2022 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 restrictions in October 2021.

--- The Yale Law School Access and Accountability Conference October 2021 had a “Fighting Censorship by PIO” session. (The agenda is here and the PIO papers [Foxhall and LoMonte] are here. The video is here, session number 5.)

--- In 2021 the University of Georgia School of Law First Amendment Clinic did a report on the policies of state agencies in Georgia and found that the majority had restraints on employees speaking to the press.

--- A 2020 editorial in MedPage Today: “You Think China Has A COVID-19 Censorship Problem? We Aren’t Much Better.”

--- A 2020 column by Margaret Sullivan in the Washington Post looked at the issue.

--- Journalist Cinnamon Janzer said in a 2020 Columbia Journalism Review article, “During the pandemic, whether the CDC’s voice has been silenced has become something of a story in itself.”

--- In 2019 legislation being considered in Congress had a provision to allow federal scientists to talk to reporters without prior approval. The provision was killed in committee.

--- In a 2019 Columbia Journalism Article, Cinnamon Janzer, who has covered Minneapolis police, said, “The Public Information Officer is a frequently obstructive mechanism thinly veiled by a helpful sounding title. PIO-approved comments shape the narratives of their news coverage across the country on matters that range from the mundane to the extremely consequential.”

--- Gabriel Popkin, science writer, said in a 2018 Washington Post article that more than 60,000 scientists in the federal government study a massive range of subjects, but, “Over the past few decades, one federal agency after another has thrown up barriers limiting the media’s access to researchers.”

--- “Under Trump, health reporters confront an information blockade,” said a 2017 Columbia Journalism Article by Trudy Lieberman. “The public information model is dead,” a public information officer employed by a federal agency that dealt with science and health told CJR. That model “has now been replaced by a highly message-controlled environment.”

--- A webinar, “The Gagging of America,” from the Society for Advancing Business Editing and Writing, has a discussion with First Amendment Attorney Frank LoMonte on blockages in both the public and private sector.  

--- The Biden administration’s Environmental Protection Agency affirmed it would continue these controls.  

--- An examination by Trudy Lieberman of the blockades of information in Health and Human Services under the Trump Administration appeared in the Columbia Journalism Review in 2017.

--- The Society of Professional Journalists has sponsored surveys showing the restraints are pervasive in federal, state, and local government, education, government science agencies and police departments.

--- A 2015 Columbia Journalism Review article by veteran journalist Trudy Lieberman, said, “trying to get useful information from government agencies can be a maddening, prolonged exercise.” 

 

FDA Conflict of Interest: Maybe It Continued Because the Press Was Not There

Below is a letter I sent to the New York Times some weeks ago. It was not chosen for publication.

To the editor of the New York Times:

The article He Regulated Medical Devices. His Wife Represented Their Makers is impressive journalism.

Unfortunately, it comes many years after this harmful conflict of interest has been in place. That’s an illustration of the horrific impact of the information control in the federal government and elsewhere. Over three to four decades agencies have implemented, or had imposed on them, bans on employees speaking to reporters, or on speaking to them without involving the authorities through public information offices.

Journalists gripe about this “minder” system, but with suspicious consistency quickly assert some version of, “Good reporters get the story anyway.”

They continue to make that claim even in the face of numerous stories like this one documenting longtime malfeasance that the entire press corps was oblivious to.

A newsletter editor has chronicled the rise of these constraints in FDA. A former communications head for the Centers for Disease Control and Prevention has detailed how each administration since President Reagan tightened these restrictions, motivated by the lack of pushback from the press or anyone. It’s bone-chilling given CDC’s tragic pandemic missteps that could have been reported earlier had journalists walked the halls and talked to staff without censors.

Last year, in an apparent first, journalist Brittany Hailer sued on her own behalf against gag rules in the Allegheny County Jail in Pittsburgh. She won a good settlement with solid free press language.

The Society of Professional Journalists has called on all journalists to oppose these unconstitutional restrictions. With history’s horrors in mind, it’s time the media recognize press manipulation for the successful system it is.


Kathryn Foxhall

From Walking Agency Halls to Being Denied Contact: How the Controls Came Down on FDA Reporters

 Jim Dickinson: “They want to control everything that is said about how they’re doing their jobs. We journalists are not in the business of giving them control. We’re just in the business of telling the truth.”

From Kathryn Foxhall: I did this interview with Jim Dickinson, editor of the newsletter “FDA WebView,” in November 2021 as part of the research for an article on gag rules and “Censorship by PIO.”

I’m publishing the longer version now as the controls on reporters seem to grow more pervasive, but a recent legal win shows there are things journalists can do.

I edited the interview slightly for length and clarity, with suggestions from Dickinson.

Dickinson continues to edit “FDA WebView.”

 COMING TO AMERICA

Jim Dickinson: I came to America in 1974 from Australia where they had very stringent police state types of controls on the press. And one of the reasons I came to America was to enjoy the freedom to the First Amendment which is unique in the world. No other country has anything equivalent to the First Amendment.

In Australia, it was – and still is, to the best of my knowledge – the case that government employees are not permitted to talk to the media. The only person who is permitted to talk to the media for a government department is the cabinet-level minister in charge of that department.

Just Walking the FDA Halls

Well, when I came to the United States in 1974, I was just staggered at the difference. I could go into FDA and talk to anybody I liked. Nobody really cared that I was in the building. There were five of us, I think, or six, who worked for newsletters. So mass media was not very much interested in FDA. We were the ones who regularly prowled the corridors for our respective employers, looking for anything that we thought would make a story of interest to our readers.

And we developed friendships with some of the more cooperative employees of the FDA. And we came to terms with them as to when they were off the record and when they were on the record. When we were on background and when we were not on background. [And] when we could come back.

I could just walk into anybody’s office and ask the secretary is so and so in and she would either go on the intercom or go into the office and say, “Jim Dickinson’s here. Do you want to see him?” And let me in. Sometimes, in fact, quite frequently, I would go into that office, or any office I wanted, to ask questions in, and the secretary wasn’t there. So, I let myself into the office. I would knock on the door. Sometimes I’d interrupt a meeting. I’d apologize and agree to come back later. But that’s the way it was.

……

Well, the press office in those days was operated under a totally different set of rules to what it is operated under today. Their job was to deal only with the mass media. They were only interested in dealing with high profile matters that might involve their bosses or the administration in some difficulty because of the vast outreach of the mass media. So that’s what they were set up to do.

We in the lowly trade press were expected to fend for ourselves and go around and get our own news. They were big picture people and we were little picture people. Our readers were basically beneath their contempt.

 Walking Parklawn Building

[The Parklawn Building] had 23 stories of FDA offices.…In those days each elevator lobby on each floor had a large, conveniently flat-topped trash can. And I would put my newsletters in a small stack on each trash can…as I went up, and sometimes some mischief makers would take the whole bundle and stick it inside the trash. But basically, that’s the way I got my reputation in the building. My products were free to everybody who was lucky enough to grab one of those newsletters….And people liked me. People liked the other five guys [newsletter reporters]….working there.

 The Mass Media Outlets

New York Times, Wall Street Journal and…Washington Post and television stations, they weren’t interested in routine, everyday regular coverage of FDA. They only went there when there were big blockbuster stories going on.

But it was the press office’s job to intercept them and to escort them and make sure they didn’t get out of their depth....

The ethic of the press office in those days was to help the working journalists in the building. Help them get what they wanted….They weren’t there to obstruct, obscure hide or conceal or massage and control the news…. And it was so in other federal buildings, because the press officer or director of media affairs or whatever it was, was usually a former working journalist….

[The mass media outlets] wanted all the help they could get. Interest of the mass media in FDA was transitory, at best. There weren’t any major ongoing issues that interested them in those days. I was there for years and years and years, but mass media journalists were not.

Generic Drug Scandal of the 1980s

And you know, a scandal like the Generic Drug Scandal would arouse a lot of interest

I remember the day that story broke. I was walking the halls of FDA. In fact, I was on the way to the generic drug office just by pure coincidence. And I heard these RUNNING FOOTSTEPS in the corridor behind me and there was Bob Wetherall, the Associate Commissioner for Legislative Affairs pounding down the hall behind me just as I noticed the lead investigator from the House Oversight Investigations Committee, hurrying toward me from the Office of Generic Drugs with a bundle of folders under his arm. Bob began bellowing at the investigator: “You can’t do this. You know you can’t do this. Just walk in and take our documents.” And [the investigator] turned around as the elevator arrived with a big smug smile, full of teeth, saying, “We’re doing it,” and skipped adroitly into the elevator.

FDA employees had been picking favorites among generic drug companies. For bribes--they were bribed--to advance their applications through the approval process while retarding their competitors’ applications. This was a huge scandal….

There was an FDA employee in Generic Drugs who interested me quite a lot because, I think, he had something to hide and that made him anxious. He was one of my regular calls. His name was Charlie Chang [branch chief in the FDA generic drug division] and he was in charge of applications in the Office of Generic Drugs. Charlie Chang was not literally, but figuratively, in bed with one particular generic drug company. And it was his files that were seized that day. They caught him red-handed and he went to jail. And there were several others. It went on for years. The repercussions, the trials and all that.

Then all of the mass media were suddenly riveted on the minutiae of FDA processes and whether they were adequately secure, who was watching who and all that sort of thing.…

That was one way that the mass media began to wake up to FDA. And the Wall Street Journal was the first major news outlet to appoint a reporter whose job it was to monitor FDA news. They had never dedicated a single employee to do this on a 24/7 sort of basis before. No major, major news organization did. Only the trade press did.

Gradually the fact that the generic drug program could be corrupted by regulated industry was not lost on the people who broke that story on Capitol Hill....

The Capitol Hill investigators were thinking. “Well, those drug people are doing this kind of stuff, what about the medical device people?” And sure enough, they discovered and unearthed stuff going on with medical devices. That was that way where people were doing favors for some companies at the expense of other companies. That came several years later.

Denied Press Credentials

In 1996, the whole open sieve that was FDA was shut down in the name of security because of the Oklahoma City bombing. Then 9/11 came along, and anything that wasn’t already shut down, then got shut down. And as the vise began to close on my activities there, I raised several issues with management. In fact, the FDA Policy Board met and agreed to hear my case. I wanted FDA to start issuing press passes to regular media people who were like me, there every day trying to gather news….I cited the example of the Pentagon. They have press passes. The Department of State has press passes…. This woman Associate Commissioner for Management at the Policy Board meeting with me …. She whispered to me out the side of her mouth as she was shuffling past me to return to her office (it was kind of tight at the end of the table at the door): “Over my dead body.”

Denied Ability to Call

Kathryn Foxhall: What about the thing about not being able to call anybody without going through the press office?

Jim Dickinson: Well, that happened very slowly. I was at a meeting once.…I went up to [an FDA presenter] afterwards and asked him…specific questions. And he said he was in a hurry, to give him a call at the office later that day. So, I did exactly that. By that time, something had happened inside his office. He was not aware of it before. But his secretary had been instructed that all inquiries must go through the press office. And I said, “I’ve just been at this meeting with him and he said to call him this afternoon.” And she just dug her heels in and said, “No, you have to go to the press office. There is no exception.”

….

And Not Getting Through to Your Source at All

Kathryn Foxhall: What about getting through? Even after you go through the press office, what about getting through to the press to the person you’re trying to speak to?

Jim Dickinson: Well, that became increasingly more difficult. The press officer, the PIO, would want to know all your questions first. And then they would deflect your approach by saying, “We’ll get back to you.” When WE get back to you, it’s not the person you’re trying to interview, that you’ve prepared the questions to ask that person. It’s the press officer, again, the PIO. And they generally do it in a cherry-picking sort of way where they answer some of the questions in their own way. They ignore other questions that you presented. And they give you not enough detail in the answers that they do provide. And if you want to have a second go at it, it becomes almost like trying to push a snowball up a hill. It gets very difficult. They don’t have enough time to expend on this one trade press reporter’s multiple questions to this one individual. They’ve got other things going on.

Changing to an Aggregator

Jim Dickinson: I’m still editing FDANews every day.

Kathryn Foxhall: And you’re still hearing the same thing from your reporters?

Jim Dickinson: No. The whole picture has changed. Instead of us being originators of FDA stories, which was what I started out doing, I’m now an aggregator of FDA stories about itself. And other words, I’m gathering other people’s products and aggregating them into an overnight bulletin, which our people [Dickinson’s subscribers] can pursue at their own discretion by following the embedded links that we put in the stories that go to FDA documents or to lawsuits or whatever else source document might be.

The nature of what I publish is completely changed, which has given me a rather cynical idea of the First Amendment, because the First Amendment’s literal words are: Congress shall pass no law abridging the freedom of the press. Well, I think my freedom has been abridged. If you want to fall back on the nitpickers here, it wasn’t Congress that did it. It was the FDA bureaucrats and they’re not Congress. They did it.

Kathryn Foxhall: But Congress funds the FDA every year.

Lawsuit

Jim Dickinson: Of course, but that’s one step removed from the actual wording and you get weaker and weaker as you attempt to argue this.

As a matter of fact, I prepared a lawsuit against FDA on exactly these grounds. I also filed a petition which took three years to answer in voluminous detail in a way that—surprise, surprise—found [that] FDA won.

But the lawsuit was pro bono by a prominent Washington law firm and they spent a year and a half researching what grounds they could have to bring a case for reporters’ right of access to government employees. And they came up with this legal theory – which I think has to be faulty and wrong somehow, but I couldn’t get past it – that I needed to have a number, preferably a number, or even one, FDA employee who was willing to get up on the stand in federal court and say, “I’d be happy to talk to a reporter if my boss would let me. But my boss will not let me.” Well, that’s the very antithesis of the pact that I as a working journalist have made for years and years with all of my sources. “Thou shall not be betrayed. I will not expose you. You can tell me stuff and you will never be hurt by it.” And now I have to go to these employees and say, “Would you go on the stand and say....[laughing].” It’s not going to happen. And it didn’t happen.

…..

But that was [the attorney’s] problem: I had to find a willing talker in FDA. And I did find one who dickered on it. She was in the Detroit district office. And I just couldn’t persuade her to do it. She wavered. At the time she was worried about her retirement in two years and whether she would be hurt in some way. Anyway, she bailed out. [Editor’s note: Legal analysis from Frank LoMonte has now said that journalists can now sue on their own accord. Investigative reporter Brittany Hailer did so and won a favorable settlement with good First Amendment language.]

Getting Most Stories from Documents

Jim Dickinson: It’s worse than Australia. I left Australia to enjoy the benefits of the First Amendment here in America. And I did enjoy them for years and years and years and built my company on it. And now it’s worse than Australia ever was.

Kathryn Foxhall: How many reporters do you have working for you?

Jim Dickinson: Two.

Kathryn Foxhall: And in general, would you say you get your sources from documents?

Jim Dickinson: Yes

Kathryn Foxhall: And what about advisory meetings?

Jim Dickinson: No, we don’t personally attend anything. Advisory Committee meetings? Yes. If they are on the internet. If FDA holds a meeting on the internet and we’re interested in it, we’ll cover it.

Kathryn Foxhall: Would you say it, like this [business] is viable, because if you do this as a service for people who are interested, it is worth their money [for] a subscription? Because theoretically they could go through all this stuff themselves. But it’s a service to go through all the documents, pick out the important....

Virtually No Talking to People In FDA

Jim Dickinson: We aggregate all the things that we think our readership base would be interested in and present it to them overnight each day in a single, solitary document that they can then follow up themselves with hyperlinks that we embed in the text.

Kathryn Foxhall: So, would you say there is virtually no talking to people in FDA?

Jim Dickinson: Oh, absolutely. If we communicate with FDA, and it is always by email, that gives FDA’s PIOs the option to ignore us. You know, even the PIOs have dragons at the gate to screen out reporters who want to get to talk to the PIO. [The person who answers the phone], says, “And who’s calling?” And you say who you are, and then they look you up on a list, see if you’re one of the admitted ones. And then depending on what that listing shows, tells them, you really get through, or you get asked to submit your questions in writing.

Kathryn Foxhall: You communicate by email because you have to. That’s the only way they will really answer you. Is that correct?

Jim Dickinson: That’s right.

Kathryn Foxhall: So, you just do it all the time. I mean, you don’t even give it a shot anymore, about getting on the phone.

Jim Dickinson: We don’t get to the original expert source in FDA. We never get to talk to them. Ever.

What’s Happening After a Reporter Goes to FDA

Kathryn Foxhall: What do you think is happening when you send in whatever it is – questions or whatever – to the FDA offices and they can take whatever time they want to take. What is happening there, behind closed doors?

Jim Dickinson: I think they determine whether this is worth the agency’s time doing anything with it in the first place. If they think it is worth the agency’s time, the expenditure of taxpayer dollars on pursuing for you, then they will go to a source of their choice. It might not be the one you want. It would be somebody that they think is better from the agency’s point of view. For instance, if I wanted to ask Janet Woodcock [FDA’s former Principal Deputy Commissioner, who retired this year] about something that she said at a meeting that we were covering, then I would have to go to the PIO and say I want to talk to Janet Woodcock about what she said. And they would want to know exactly what it was I wanted to ask Janet Woodcock. And this is my suspicion: I have no documentary, established verification of this. But my suspicion is that they: A: They either know somebody who assists Janet Woodcock on these kinds of issues and they go to them. Or they already know from some source on this particular topic and they regurgitate it back to me in an email. The chances of me actually getting my question through to Janet Woodcock, for her personal attention and her personal answer is pretty remote.

Kathryn Foxhall: So that you would be able to talk to her and maybe do a follow-up question and quote her directly – it’s just is not going to happen.

Jim Dickinson: Well, there’s two ways you could approach that. One you’ve got one question that arose out of what she told the meeting this afternoon, which can be fairly simply dealt with, probably by other people besides Janet Woodcock, in the opinion of the PIO. And the other possibility is that you have a list of questions you want to put to Janet Woodcock that were spurred in your mind by what she said…. and you are requesting an interview with those questions. And that is when the PIO will dig their feet in and say, “What sort of questions exactly? Can you give me an idea what they are?”

Now, I’ve done this before, and I know it doesn’t work: [I might say], “Well, some of them are questions that would be better expressed after I’d heard her answer to the first question.” In other words, I need to have a conversation.

….

And you’ll never get it.

What About the Lower-Level People?

Kathryn Foxhall: And I guess one excuse [the agency might give] there is that Janet Woodcock is busy. But could you, if you so wanted, talk to anybody in that office, or someone you knew is not all THAT busy. Just someone who maybe spoke at a meeting or whatever. But…they have expertise in a particular area. And they’re not like Janet Woodcock. They’re not being targeted by the press everyday. Could you talk to them?

Jim Dickinson: I haven’t tried to, lately. I’ve been so, frankly, discouraged that I don’t. It’s unlikely that such a person would come under notice. The lower-level people you’re referring to generally are speaking off a script. And the PIO’s job is to hold you to the script. And they’ll be happy to send you a copy of it by email. But as for you asking free-ranging questions based on what this lower-level person said, they get nervous. They don’t know that this lower-level person really can be trusted to stick to the party line and say what has been approved in the script. Or will you, as a clever reporter, trick them into going off script and say things that maybe they should not say. So that’s the atmosphere that now exists between reporters and PIOs.

It’s an untrusting atmosphere. And it comes from the PIO side far more than the reporter’s side. The reporter, after all, is merely trying to finish the story they’re already working on. And they’re not playing games. They don’t want to play games. But the PIO, to protect the boss, to protect the agency, in their mind, has to play games. And they play these sorts of games. Reroute your question. They ignore certain parts of your question. They ignore a whole question as they want or they pick out some text that’s come out of a document that’s been previously approved on this topic. And although it doesn’t fit your question, exactly, it’ll do a good enough job of addressing the subject your question was about.

Kathryn Foxhall: Let’s set a scenario where you know what you’re doing. You have seen a document. You’ve been at a meeting. So, you know, that this particular person--not real low, but not Janet Woodcock either--this person has a focus on and knows about this area. Could you talk to him or her if you went through the PIO?

Jim Dickinson: It’s not impossible. I haven’t had the pleasure, though. They have a very, very well-worn way of deflecting such approaches.

Kathryn Foxhall: You’re saying it’s unlikely.

Jim Dickinson: It’s unlikely. Highly unlikely.

What’s It Doing to Reporting?

Kathryn Foxhall: What do you think that it’s doing to reporting about FDA across the board?

Jim Dickinson: It’s dumbing it down. Reporters, I don’t know many of the current world-level reporters but reporters...generic journalists don’t find FDA a very interesting subject in the first place. And in the second place, they don’t have the kind of technological understanding of the issues, technological or legal understanding of the issues that FDA deals with every day. It takes a lot of experience on a reporter’s part to learn those technological and legal, regulatory type issues and to become proficient. And the more proficient you are, the more you begin to outstrip the PIO in the level of knowledge that’s being discussed, and the more wary they become of you….

I have been reporting FDA since 1974. And I know so much about the way the agency works, although my information may not be as current as it used to be. I have a reputation with some of the old timers there that maybe they don’t want to hassle with me. They’ve got better things to do. And they would rather deal with reporters who know less and who will more readily accept the printed handout, the script that they prepared and not give them any trouble…. I think it’s true of government generally. The less familiar the reporters are, the more easily they’re brushed aside and the more grateful they might be, to have some sort of quote, even if it’s not a high caliber quote, to put in their story and get it over with and go on to the next story. So, I think the PIO system in a nutshell has resulted in a general dumbing down of the public’s knowledge of how FDA works. And the rationale behind many of its decisions, if not all of its decisions, it’s opaque. FDA is opaque.

Kathryn Foxhall: Would you say that it’s keeping information from the general public and also from people who are more focused on this, like people in Congress. It’s simply keeping critical information from them?

Jim Dickinson: Yes. It’s not intended to have that effect, but it does have that effect.

Kathryn Foxhall: Well, okay, when you say it’s not intended to have that effect: would you say that there could be times that it is intended to have that effect?

Jim Dickinson: Certainly, certainly. You get bad actors in there. Yes.

Foxhall: Several years ago Christina Jewett, then with Kaiser Health News, poured some time into a story about a medical devices database, which FDA had and it was not telling the public about. With defects or issues or problems, they were supposed to have a public database. Well, they had a secret one and they had it for almost 20 years. She did a whole series. When it came out, it blew up. But she got that story originally because someone in that office retired and then became a whistleblower.

Jim Dickinson: That’s the way it goes.

Kathryn Foxhall: SPJ gave her an award. I think she got several other awards for it. I agree that she deserved them given the work and the talent….But none of us, the whole journalism community, stepped back and said, “My God, this went on for 20 years and we didn’t know anything about it. We give an award for people finally getting it. Also, we didn’t step back and say well, as far as we know, there could be 20 databases that we don’t know anything about.” Is that an adequate picture of where we are?

What We Don’t Get

Jim Dickinson:  Yes, I’m afraid it is. I’m afraid it is. The agency has become opaque. You’ve got no idea the number of stories that I got from people telling me just a little piece of it and another person telling me a little piece of the other side of it. And gradually over a period of time when I was talking to these people, they were, all of them, telling me stuff they had no business telling me. Their bosses would not like them telling me, but I got told. And I was able to put things together and the bosses didn’t like it. In fact, long after I had left and the system had gotten into place, [there was] a good contact of mine who was Associate Commissioner for Policy. Somebody I always called on every time I went into the building. He was retired. He told me on the phone, “Jim, he said, if they could have stopped you, they would have.” Well, they have [laughing]. Big bosses didn’t like it. They have got control fetishes. They want to control everything that is said about how they’re doing their jobs. We journalists are not in the business of giving them control. We’re just in the business of telling the truth.

Kathryn Foxhall: Let me just show you how far my thinking has gone and see if you think it’s legitimate or whatever. I also talked to Katherine Eban who wrote, “Bottle of Lies.”

She got numerous awards…and she testified before Congress. [I told her] reporters used to call whoever they wanted and often talk to them. I said sometimes staff people were nervous, but there was a sense of obligation that you answer a question from the public. She was flabbergasted...Her book was basically about how very bad the overseas inspections are.... But in total, she spent 10 years on this book.

Now, my feeling is, this is a symptom of implosion. We have to have a reporter spend 10 years on a subject matter before we really realize what is going on. And you know, if FDA implodes, what do we have? We are in this technological age—with pandemics and other things—and we are in such trouble. And if they lose their trust, we are just in deep trouble as a society.

Jim Dickinson: Well, I think we’re in deep trouble as a society on other fronts as well.

Kathryn Foxhall: Certainly.

Editor’s note: For a view on what happened in the Centers for Disease Control and Prevention as the controls tightened see the interview with a former CDC communications director.

SPJ calls for action by journalists against gag rules after key legal win

The following was released by the Society of Professional Journalists on May 23.

Settlement on public employee speech restrictions ends case believed to be the first of its kind brought by a journalist.


CONTACT:
Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com
Kathryn Foxhall, SPJ Freedom of Information Advocate, 202-417-4572, kfoxhall@verizon.net
Kimberly Tsuyuki, SPJ Communications Specialist, 317-920-4785, ktsuyuki@hq.spj.org

INDIANAPOLIS — The Society of Professional Journalists is issuing a call to action for journalists to fight government restrictions on employee speech rights following what is believed to be the first time a journalist has won a legal settlement against gag rules on workers in public agencies.

The settlement came in a suit brought by investigative reporter Brittany Hailer against the Allegheny County Jail in Pittsburgh for its rules prohibiting employees from speaking to the press or posting information on social media. After rounds of negotiations with Hailer’s attorneys, the county agreed in April that its employees and contractors “have constitutional rights to speak on matters of public concern when acting as private citizens and not purporting to represent the view of the [Allegheny County Bureau of Corrections].”

Now, in a call to action, SPJ is urging journalists to consider similar legal action; use the case for discussions and editorials opposing such speech restrictions; and educate the public about the dangers of such censorship.

“This settlement is of historic importance,” said SPJ National President Ashanti Blaize-Hopkins. “Gag rules are being adopted in all kinds of federal, state and local agencies, from congressional offices to schools and police departments. The settlement shows journalists that they can fight these widespread restrictions -- and why they should.”

SPJ is calling on journalists to review SPJ's Gagged America SPJ’s Gagged America resource collection and move vigorously against employee speech restrictions. We encourage news outlets and journalism organizations to:

-Use the Allegheny County settlement as inspiration for legal action against constraints on journalists’ speaking with employees, including mandates that reporters go through public information officers.

-Use the settlement’s statements on First Amendment rights to oppose such gag orders in contacts with officials and in editorials.

-Research and report on speech controls in particular states, localities or institutions.

-Educate journalists, officials and others on the history and the impact of such censorship.

-Join forces with other news organizations, advocacy groups, journalism schools, and press associations to demand answers from public officials and mount legal challenges.

-Push for open access to people, along with pushing for open access to documents, to help ensure the documents are fully understood.

-Call on organizations of public relations professionals to oppose restrictive practices, which serve to hide critical information.

SPJ’s resources on gag rules include a legal analysis and road map for action by journalists authored by Frank LoMonte, then head of the Brechner Center for Freedom of Information and a current member of SPJ Foundation Board of Directors. The 2019 analysis states that “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 Allegheny County settlement says policies, “may not regulate the employees’ when they speak on matters of public concern as private citizens on their own time, provided they are not in uniform and do not otherwise create the impression they are not speaking in an official capacity….”

Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions.
 
The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press represented Hailer in the case. She was director of the Pittsburgh Institute for Nonprofit Journalism when the suit was filed and is now with the Marshall Project.
 
SPJ helped engender the case by writing about the issue to the Yale clinic and others and has made numerous public statements since.

Blaize-Hopkins, SPJ’s president, said, “After years of opposing these dangerous information restrictions, SPJ and other journalists are deeply grateful to Hailer and her attorneys for this outstanding work.”

Kathryn Foxhall, a point person for SPJ on the issue, said, “Information control is one of the most abusive, deadliest forces in human history. This case serves as a model for other journalists to move against this kind of insidious censorship, which far too often goes unchallenged.”
 
SPJ promotes the free flow of information vital to informing citizens; works to inspire and educate the next generation of journalists; and fights to protect First Amendment guarantees of freedom of speech and press. Support excellent journalism and fight for your right to know. Become a member, give to the Legal Defense Fund or give to the SPJ Foundation.



-END-



Resources:
- A Society of Professional Journalists resolution on “allowing federal employees to freely talk with the press” notes that “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.”
-SPJ has sponsored seven surveys showing the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc.
-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 recent article in FAIR.org and an earlier one in Columbia Journalism Review examine the gag rules.
-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 Maryland, Delaware, and District of Columbia Press Association podcast episode features the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 
-Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the elimination of such restrictions in the federal government. 
-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. 
-A review of recent actions is in the PR Office Censorship blog.

In an apparent first, journalist wins against gag rules on employees in a public agency

Last August, in what is likely a groundbreaking first, investigative journalist Brittany Hailer filed a suit against the Allegheny County Jail for banning employees and contractors from speaking to reporters, even as the jail seemed to have a high death rate.

On April 23 she won an important settlement recognizing employees’ right to speak as private citizens under the First Amendment.

The case is highly significant for journalism because these restrictions, against speaking at all or against speaking without reporting to authorities, have become very common in all kinds of public agencies, businesses and other organizations.

It is believed to be the first case brought by a journalist for themselves against this censorship. Other, non journalist entities have won court decisions against such controls.

Some people thought journalists could not sue on their own behalf against these type restrictions, including “censorship by PIO,” the forced involvement of PIOs in all contacts. This could be a model for action across the country, even though it did not go to a higher court.

The case illustrates the harsh human rights implications of these gag rules. The jail had human beings locked up and officials prohibited staff or contractors from saying anything to the press, making themselves the sole source of information.

The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press represented Hailer in the case. The Society of Professional Journalists and others have opposed such restrictions for years.

Frank LoMonte, prominent First Amendment attorney, 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.”

Meantime, after seven million Covid deaths worldwide, all 70,000 or so employees in HHS are banned from speaking to the press without controls on them.

And, as we push into the Artificial Intelligence, the Department of Commerce has a policy telling employees, in effect, to stay close and say nothing without going through the authorities.

Kathryn Foxhall, who was honored by SPJ for pushing against these controls, said, “I’d like to ask journalists the question of whether it is ethical journalism not to take all possible action against these restrictions.”

“I will also put on the record my objection to the provision that allow employees speak to reporters only on their own time. This will create problems in many instances, including with daily or close deadlines. Employees routinely speak to their families, the dry cleaners, etc., during business hours. Why hamstring contacts with reporters?”

Resources:

--- The SPJ New England Chapter sponsored a zoom program moderated by First Amendment attorney Frank LoMonte. A podcast by the Maryland, Delaware, and District of Columbia Press Association features Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke.

--- An article in FAIR.org gives some overview.

--- Blog has a listing of 2023 articles on the gag rules.

--- 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.

--- SPJ has a collection of restrictive media policies.

--- SPJ did surveys from 2012-2016 of the media controls in federal, state and local governments; education; science; and police departments.