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.