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