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.