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.



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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.

 

 

In Apparent First, Journalist Wins Settlement Against Gag Rules on Employees in Public Agencies

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

Department of Commerce Has New Importance and Heavy Clearance for All Communications

Due in part to new attention to Artificial Intelligence, the Department of Commerce, has new visibility.

Commerce, with a budget of about $15 billion, is the parent agency of the Bureau of Economic Analysis; the U.S. Census Bureau; the National Institute of Standards and Technology; the National Oceanic and Atmospheric Administration; and other entities.

The department sent a memo last year stressing to employees that the Office of Public Affairs is responsible for coordinating Department communications, saying that requirement, "helps to ensure consistency of message and to maximize the impact of our efforts.”

It also said such coordination, “helps to avoid surprises, whether for the White House, the Secretary, or other Department senior staff.”

I contacted numerous people in the department over several months, including the Secretary's office, asking if such restrictions on speech would not slow or block information and, in effect, ban public knowledge of dissent within the Department.

I have not received a reply.

Why wouldn't such heavy suppression of speech by people dealing with issues such as AI not leave holes in what we understand?

My letter to Commerce is below.

Secretary Gina Raimondo
The U.S. Department of Commerce

Madam Secretary:

Your Freedom of Information office supplied me with the memorandum, “Clearance Guidance for Communications," now copied on here.

The FOI officer said the date is January 26, 2023.

Apparently, the policy, in effect, directs employees to have no conversations with reporters without involvement by the public information offices.

A number of journalism organizations have opposed these type policies for many years.

Among other problems, there is always information that will come out only by people speaking to journalists confidentially, something the Commerce policy would prohibit.

I’m doing an article about this policy for journalists and others and I wanted to ask you to comment.

Are you not concerned that the restrictions on speech between reporters and employees will slow or effectively block the flow of important information to the public, to experts inside and outside the department, and even to yourself?

In this time when your department is taking an important role in artificial intelligence, among other issues, will these restrictions be a factor in hampering the understanding of what is happening with such things? (A New York Times’ article asserts nations are losing a global race on A.I harms.)

The memorandum expresses concern about ensuring “all communications reflect a whole of Commerce approach that will keep us aligned….”

Does this in effect ban the public’s knowledge of dissent?

The memo indicates concerns about coordinating communications, not having units within the Department competing for news coverage and avoiding surprises for the White House, or other leadership. Other agencies cite similar concerns.

Can such concerns justify having people in positions of power controlling information? Has that not been one of the most damaging things in human history?

Many leaders would want to have an official avenue for the official story. However, does that necessitate blocking all other avenues? Do Americans want only controlled messages? Is it best for science or other understanding?

How is it responsible for any of us to trust public welfare to a human institution that is intensely controlling public scrutiny of itself? Given such things as the missteps in the Covid pandemic, are you concerned about the information other agencies are controlling?

Some resources on this issue are below.

I’d appreciate your discussion.

Thank you.

Kathryn Foxhall


Cc: Department of Commerce staff



Resources

--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.

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

-- My 2022 article in the Columbia Journalism Review is on the history of this trend. I am a longtime health reporter and serve as a point person on the gag rules.

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

-- “Editor and Publisher” featured the issue in October 2021.

How Many People in How Many Agencies Were Silenced Before the Bridge Fell?

I wrote this today for the live online conversation with Erik Wemple of the Washington Post. However, I may have been late in sending it.

Over decades the Federal establishment and many other entities have instituted rules banning staff, sometimes others, from speaking to reporters without notifying authorities. Journalism groups including SPJ are fighting the restrictions. Mostly, news outlets have acquiesced to the controls, routinely saying things like, “Good reporters get the story anyway.” A former CDC media relations head says the rules are used very effectively for political purposes. Is it ethical journalism for news outlets to not speak out about this? Is the press just assuming what we get is all there is? How many people in agencies, etc., were effectively silenced before the Francis Scott Key Bridge fell? Note reporter riding on a boat with officials can’t talk to them.

A Special Topic: An old fight with a new approach: Journalists file suit against gag rules in public agencies

This is an article I contributed to the Winter 2024 issue of Media Law Notes, the newsletter of the Law & Policy Division of the Association for Education in Journalism and Mass Communication.  Reprinted here with permission.

In apparently unprecedented legal actions, two separate suits have been filed for journalists against public agencies for having gag rules prohibiting employees or contractors from speaking to reporters. Previously, similar suits on employee speech to journalists have been filed and won by parties including unions or employers. 

Many people, including attorneys, have thought that journalists could not file such actions for themselves. 

However, in August investigative journalist Brittany Hailer sued the Allegheny County Jail in Pittsburgh for allegedly having such speech restrictions even while a number of deaths occurred in the facility. Hailer noted in a recent online meeting that if George Floyd had been pulled behind similar walls, there probably would have been no documentation of his death. 

In the second case, the publishers of “The Reporter” sued the Delaware County (New York) Board of Supervisors for revoking the paper’s designation for legal advertising, allegedly in retaliation for its news coverage, and for then banning county employees from speaking to the paper about “pressing matters of public concern.” 

Hailer, in the Pittsburgh case, is being represented by the Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press. 

The New York newspaper is represented by the Cornell Law School First Amendment Clinic and Michael J. Grygiel. 

Both cases were inspired in part by an extensive legal analysis done by First Amendment attorney Frank LoMonte which said such restrictions are unconstitutional and many courts have said that. Both cases are still pending.

Such gag rules have become a norm in many arenas, including some universities. The Society of Professional Journalists has said the controls are censorship and authoritarian. 

For one salient example on the federal level, former Centers for Disease Control and Prevention media relations head Glen Nowak has said the controls grew more restrictive over each Presidential administration since President Reagan. He said the restrictions were politically driven and effective in controlling much information. 

For some years now, when a reporter contacts a public information office (PIO) for permission to talk to someone, the request must be sent up through the political layers of government, such as to the Department of Health and Human Services Secretary of Public Affairs and often to the White House. Behind closed doors officials decide who may speak to whom and what may be discussed. Most journalists have acquiesced to the mandate to routinely contact the PIOs first and they don’t tell the public about that control. 

However, that step, by itself, bans people on the inside from communicating fluidly or speaking without notifying the authorities. There is inevitably much people will not mention when they know their bosses know who is talking to whom. 

However, from all reports we have heard, most reporters’ requests to speak to someone are not granted. 

In addition to the heavy controls on contacts, reporters have long been banned from entering many agencies’ facilities. 

Most federal agencies have had these controls for some time, and they are common in state and local agencies, as well as private entities. The Environmental Protection Agency, Department of Energy, etc., have the same censorship, even in the face of climate change. 

With AI apparently changing history, the Department of Commerce had a bold version of the restrictions. 

SPJ president Ashanti-Blaize Hopkins said, “These gag orders are among the most dangerous threats to free speech and the public’s right to know, as they prevent journalists from doing their jobs.” 

Most news outlets are not openly fighting the controls. One reason is that journalists have a strong tendency to believe: “Good reporters get the story anyway.” Journalists do publish some impactful material that reflects skill and hard work, including the cultivation of employees who defy the gag rules. But journalists also tend to believe whatever they get is all there (paraphrasing psychologist Daniel Kahneman). They tend to believe that even though most staff continue to be frightened out of talking even after our stories are published. 

In addition, as Jay Rosen, a journalism professor at New York University, says, “The news system is not designed for human understanding. Even at the top providers, it’s designed to produce a flow of new content today - and every day.” 

Information control is one of the deadliest things in history. It’s incumbent on journalists to ensure we aren’t just getting spectacular content while people in power are manipulating us away from much of what they don’t want published. 

The issue needs much more scrutiny. For one thing, the impact needs to be better documented as the question moves into the courts. 

My 2022 article in the Columbia Journalism Review is on this history, and the SPJ did previous surveys that showed the pervasiveness of the controls in many levels of government and other sectors. SPJ has a collection of written media policies, and the Society for Advancing Business Editing and Writing held a 2022 seminar on the controls in the private sector. 

Please contact me for questions or background: kfoxhall@verizon.net. 

Kathryn Foxhall is a longtime health reporter; former editor of the newspaper of the American Public Health Association; and winner of the 2021 Wells Key, the highest honor for an SPJ member, specifically for work against the gag rule culture. 

Resources on “Gag Rules and Censorship by PIO” 

-Recently, 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. 

-Also, last fall, a podcast by the Maryland, Delaware, and District of Columbia Press Association featured the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 

-SPJ has said the controls are censorship and authoritarian. 

-SPJ has sponsored seven surveys showing that the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc. 

-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. 

-“Editor and Publisher” featured the issue in October 2021. 

-A review of recent actions is in my blog. 

*Special thanks to Kathryn Foxhall and the SPJ for compiling and providing these resources.