Brechner Center: Most private workplace rules against speaking to the press are legally questionable

The Brechner Center, headed by Frank LoMonte, has issued an important report on “Employees’ Right to Speak to the Media: Challenging Workplace Gag Policies.”

The center says most private workplace gag laws are legally questionable under the National Labor Relations Act.

This concerns private employment places only. (The Brechner Center has other ideas on challenging government workplaces gag orders.)

The report says, “Gagging employees from saying anything about their work to the news media is unnecessary, legally questionable, and contrary to the public’s interest in safe and honest workplaces.”

It also says, “Because the standards for initiating an NLRA case are quite informal, advocates for journalists’ rights should consider filing challenges to overbroad speech policies. Since the law against gagging employees is not widely publicized or understood, challenging overly restrictive policies can help send the message to all employers that their authority over their employees’ speech is limited.”

In November an NLRB judge issued an opinion that forced a hospital to rescind a gag rule on communicating to the press, supporting the Brechner Center report’s theory. (See below.)

NLRB Judge Forces Hospital to Rescind Gag Policy on Staff

An administrative law judge under the National Labor Relations Board ruled in November against a hospital that fired an employee for writing a letter to a newspaper. The Maine Coast Memorial Hospital had a media policy prohibiting employees from speaking to the press without permission.

Karen-Jo Young, who had been the hospital’s activities coordinator, wrote a letter to the Ellsworth American newspaper, about ongoing staffing concerns.

The Administrative Law Judge Paul Bogas, stated in his decision, “The Board has repeatedly recognized the importance of employees’ communications to the media and other third parties as a means of publicizing labor disputes and drawing an employer’s attention to the need for improvements to working conditions.”

Young was not a member of either of the two bargaining units at the hospital.

The decision required the hospital to post a statement that said, among other things:

“We will not maintain or enforce any unlawful work rule or system policy that prohibits you from communicating with the news media about Maine Coast Memorial Hospital or Eastern Maine Healthcare Systems (EMHS) or that requires you to involve, or obtain permission from, Maine Coast Memorial Hospital or EMHS before doing so.”

Frank LoMonte of the Brechner Center for Freedom on Information is attempting to build a road map for challenging these restrictions in private workplaces.

CJR Article: Reporters Accepted PIO and Other Controls While Gymnasts Were Abused

A recent Columbia Journalism Review story looks at the controls on the press and the lack of media skepticism during the many years Larry Nassar abused young gymnasts.

It may be one of the best pieces to raise issues about what reporters enable—in many arenas of coverage—when they accept limitations put on them by people in power, including the mandates to go through public information offices for access.

According to the article by Alexandria Neason, a communications official for USA Gymnastics literally stood between a reporter and the athletes with outstretched arms when the journalist asked an unwelcome question.

Joan Ryan, a former sports columnist, who wrote a book about the toxic culture, is quoted as saying there was zero access to the athletes.

According to the article, “…for the most part, close examinations of training regimens were limited and curated.” And “officials sought to steer coverage toward the positive.”

The piece talks about warnings that reporters could lose their credentials and their fear of that.

Will Graves, an Associated Press sports writer, is quoted as saying, “We would ask questions but sort of in a polite way….”

The article reminds this journalist of polite questioning at many federal briefings. However, things we don’t know about federal agencies could have far wider impact.

New Journal to Focus on Access to People, Records, Meetings, etc.

The Brechner Center for Freedom of Information is announcing a new online, peer-reviewed Journal of Civic Information to focus on access to public employees and elected officials as well as access to public records and meetings, court transparency, open data and technology and related matters.

The center says, “Papers are welcomed from both scholars and practitioners, and we encourage submissions from a wide range of disciplines that involve managing information for public use.”

The Brechner Center is headed by Frank LoMonte, who says journalists and others tell him the biggest pain point for reporters is aggressive control of information through public information officers. The center is trying to draw a map for media lawyers who want to take on these cases.

In addition, researchers working on public information accessibility are encouraged to submit proposals for presentation at the National Freedom of Information Coalition summit, April 12-13 in Dallas.

The top three papers will earn cash prizes and the best paper will be guaranteed publication in the new journal, according to the center.

One-page proposals must be emailed by January 21 to Dr. David Cuillier, University of Arizona School of Journalism, cuillier@email.arizona.edu.

LA Chapter of SPJ Plans Panel on PIO Restrictions, Etc.

The Greater Los Angeles Chapter of the Society of Professional Journalists will host a discussion on issues relating to public information officers and journalists on January 22.

The chapter cites the series of studies from SPJ National that found there is increasing difficulty to access information and do interviews through PIOs.

The discussion will focus on “the studies, including how to find ways to improve relationships between the holders of public information and the journalists who are seeking it out.”

Panelists will be the public information officers from the LA County Sheriff’s Department, the LA Department of Public Works, the City of Pasadena, and the City of Anaheim.

When: Tuesday, January 22, 2019, 7 to 8:30 p.m.

Where: The Association lounge, 110 East 6th Street, downtown Los Angeles.

Cost: Free and open to the public

Contact: Sarah Favot, sarah.favot@gmail.com

RSVP: spjlosangeles@gmail.com

Washington Post Publishes Opinion Piece on The Harm to the Public

In a recent Washington Post opinion piece, science writer Gabriel Popkin says, “Over the past few decades, one federal agency after another has thrown up barriers limiting the media’s access to researchers.”

His very good piece gives numerous illustrations on how the restrictions work. It’s one of the few in the major media on the mandated clearance of reporters’ requests to communicate with people and the related obstructions.

Popkin says, “This harms the public — and democracy itself. When agencies refuse access to experts who can explain how scientific knowledge is produced and how science-based decisions are made, understanding of and trust in government suffer.”

The author has worked with the National Association of Science Writers on the blockage issue.

He says, in one example, that a Food and Drug Administration public affairs officer would not put him in contact with an expert on the evaluation of genetically modified plants.

That’s a pervasive story: federal agencies first began prohibiting staff to speak to reporters unless the journalists go through public information offices. Now PIOs often don’t let the reporter through.

With these ethically plagued restrictions one question is whether the public may be better off if the reporter isn’t allowed to speak to the person requested. If the communication does happen it will be controlled by the agency’s eagle-eyed oversight. It’s a good bet that so much will go unmentioned the result can be technically accurate and badly misleading. Neither the journalist nor the public will likely understand how the narrative has been befuddled.  

Free Speech Attorney Sees Legal Case Against Restraints by PIO

The Society of Professional Journalists and others have been fighting the restrictions in agencies and other organizations prohibiting staff from talking to reporters without notifying authorities, often public information officers.

Now a prominent free-speech attorney says there may be a legal case against PIO chokepoint on information.

Frank LoMonte told an Excellence in Journalism18 session that when he became head of the Brechner Center for Freedom of Information last year, journalists and lawyer friends told him the biggest pain point for reporters is the PIO bottleneck, or the aggressive manner in which government agencies, in particular, are policing access to information.

After the center researched the issue, he became convinced there is a legal way to attack these blockages, he said at the session, titled “Censorship by PIO: Challenging Gag Orders on News Sources,” in Baltimore, Sept. 29.

LoMonte was head of the Student Press Law Center in Washington for almost 10 years prior to taking the position at the University of Florida’s Brechner Center in 2017.

He pointed out that some people say the restrictions are legal, due in part to the 2006 Garcetti v. Ceballos Supreme Court case. In that 5-4 decision the court said an assistant district attorney who wrote a memo taking a view in opposition to his boss could be disciplined because he was acting “pursuant to official duties.”

(It should be noted that many of the restrictions seen today got their start well before that 2006 decision.)

However, LoMonte said, “The U.S. Supreme Court has said over and over again that you do not forfeit all of your First Amendment rights just because you take a job working for the government.”

In the more recent 2014 Supreme Court case, Lane v. Franks, LoMonte said, the court, in essence, said the Garcetti decision did not mean that when people talk about their work they have no First Amendment protection. The court meant, he said, that when the employees are talking as a work assignment these restrictions on free speech might be legal.

Edward Lane was a community college employee who testified in a federal fraud case about a state representative who was put on the college payroll but did no work. Lane was fired after that trial was over. Then Lane sued Steve Franks, the community college president, for wrongful termination, alleging he was retaliated against for testimony in the fraud case, and therefore his free speech rights had been violated. The Supreme Court reversed a lower court decision that had said his free speech rights were not violated.  

The Brechner Center is trying to draw a map for media lawyers who want to take these cases on.

LoMonte also contends the gag orders may be illegal in some larger businesses due to protections under the National Labor Relations Act.

The National Labor Relations Board, which enforces the NLRA, has said many times that it regards employees’ ability to speak about their work as a necessary condition to being able to organize, according to LoMonte: “If you can’t talk about your working conditions, then you can’t make them better, right?”

Yet, he said, every reporter who has ever interacted with a private business has had an employee tell them that no one there except the public relations office is allowed to talk to reporters. LoMonte thinks many of these restrictions are on borrowed time and people will start challenging them. Exceptions to who is covered by the NRLA rules, LoMonte explained, include religious institutions, small private businesses or high-level supervisors. He also noted that reporters who are told that no one can talk to them without going through the PIOs should ask if there is a written policy and if they can see it. Sometimes, he indicated, the “rule” is just an impression that has been passed down from generation to generation of employees.

About 60 people attended the session.