In-Depth Legal Review Says Agency Controls on Reporters Are Illegal

An in-depth review of legal cases concludes that the prohibitions many government agencies have against employees speaking to reporters without permission are illegal.

The article in the Kansas Law Review also says journalists themselves should be able to bring suit to stop the gag orders, rather than waiting for an agency employee to do it.

Both the Society of Professional Journalists and the D.C. Chapter of the SPJ hailed the analysis as a breakthrough in the fight against this severe censorship that has been intensifying for over a quarter of a century.

The 70-page review analyzes dozens of Supreme Court and other legal cases. It says the “overbroad” restraints are unenforceable constitutionally, “yet still proliferate and still exert a powerful influence on the way employees behave.”

The article, by Frank LoMonte, head of the Brechner Center for Freedom of Information, is a broader discussion of the information that appeared in the Brechner Center Issue Brief released in October.

Patricia Gallagher Newberry, Society of Professional Journalists national president, said, “Censorship has stalked a horrific path through history. This is another instance. It is heartening to find another way to fight this trend toward silencing public employees, which SPJ has identified as a grave risk to public welfare.”

SPJ’s most recent resolution on the matter, approved at its annual meeting in September, states, “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.”

I urge all journalists, including editors and publishers, to read the Brechner Review. It not only gives the press a path for fighting these restrictions through the legal system. It empowers us right now to stand up to myriad agencies on all levels and say, “Yeah! This is censorship. This is unconstitutional.”

Science Writers "Dismayed" at Committee Stripping Free Speech Provision from Bill

On November 15 the National Association of Science Writers told the U.S. Congress that, “many, if not most, agencies now require their scientists to get approval before speaking to reporters,” and in many instances agencies prohibit them from talking to reporters at all.

NASW said it was dismayed that language that would have given scientists’ the right to speak to the press was stripped out of the Scientific Integrity Act bill on October 17 in the mark-up by House Science, Space and Technology Committee.

The NASW letter comes after a letter from 28 journalism and other groups went to Congress with much the same message on November 7.

NASW, which has both journalists and public information officers among its members, said, “Federal agencies’ policies and practices that block the dissemination of scientific information are at odds with widely recognized norms of journalism.”

The association noted that the U.S. government employs one of the most powerful and accomplished scientific work forces in history, with tens of thousands of publicly funded scientists working in more than 20 agencies.

27 Groups Call on Congress to End the Censorship on Federal Employees

Twenty-seven journalism and free speech groups sent a letter to each member of Congress on November 6 calling for the right of unimpeded communication with journalists for all federal employees.

The letter noted, “Over the last 25 years there has been a relatively rapid trend toward federal agencies and others prohibiting staff members from communicating to journalists without reporting to some authority, often public information officers.”

These restrictions, the letter said, “have become an effective form of censorship by which powerful entities keep the American people ignorant about what impacts them.

It pointed to the fact that a bill (H.R. 1709) introduced in the House of Representatives this spring would have given federal scientists, only, a small degree of protection to speak to the press. However, even that was stripped out during the October 17 mark-up in the House Science, Space and Technology Committee.

The letter said, “We call on Congress to hold hearings on these free speech issues and to work with the Executive Branch to complete a thorough examination on why free speech has become so undermined for millions of people that legislation is needed to allow free speech without reporting to authorities, and on what those restrictions do to the nation’s functioning.”

Led by the Society of Professional Journalists, the letter was also signed by the American Society of Journalists and Authors, the Association of Health Care Journalists, the National Association of Black Journalists, Open the Government, and others.

Committee Kills Provisions to Allow Federal Scientists to Talk to Reporters without Prior Approval

Earlier this year Paul Tonko (D-NY) introduced the Scientific Integrity Act (H.R. 1709) which, among other things, would have given federal scientists the right to speak to reporters without prior approval from their agencies. A companion bill was introduced by Senator Brian Schatz (D-HI).

One might argue that provision would have done more harm to free speech than good: it would have helped entrench the idea that people have the right to speak only under special circumstances, like having a science degree. It would also have allowed agencies to require the scientists to report the subject of press interview. Having to report an interview, of course, means being prohibited from ever speaking in confidence with a reporter, routinely depriving the public of much information about what is really happening.

Nevertheless, introduction of the provision could be seen as an important step to raise the idea in Congress that silencing many thousand federal employees in terms of talking to reporters—the effect of the current heavy oversight and permission rules—might not be a good thing. However, the provision apparently offered far too much openness, and it was killed in a mark-up session on October 17 in the House Science, Space and Technology Committee. 

Congressman Tonko asked the committee to consider instead a new version of the bill that eliminated the right of scientists to speak to reporters without first getting permission. It would have, instead, allowed scientists to, “respond to media interview requests regarding scientific or technical findings from research conducted by, or research related to that conducted by the individual, while ensuring full compliance with limits on disclosure of classified information.”

The bill would have also allowed the scientists to present opinions beyond the scope of their research findings, if they presented them as personal opinions and not statements on behalf of the agency.

It also would have required agencies to have clear guidelines for how scientists could respond to media requests that would, “not delay or impede without scientific merit the communication of scientific or technical findings to the media.”

Even that version was too much.

Rep. Frank Lucas (R-OK), the ranking member of the committee, offered an amendment to delete those provisions on media requests, citing concern that the legislation would dictate “how federal scientists and agencies handle media requests.” Saying many agencies already have media procedures in place as part of their scientific integrity policies, he said, “Every administration deserves the opportunity to shape policy and message. That's why we hold elections.”

Lucas continued, “The job of scientists is to conduct research and the job of policymakers is to develop policy which is a complicated process that involves weighing many factors including science. Science should also help inform policy not be policy.”

As apparently had been agreed upon before the mark-up session, Rep. Tonko said he accepted the amendment for the sake of the overall bill.

The Committee passed that version the bill 25-6.

The legislation would also require all covered agencies to adopt and enforce a scientific integrity policy that will be approved by the Office of Science and Technology Policy. Those policies would do things like prohibit scientists from engaging in misconduct and prohibit suppression or delaying of scientific findings without scientific merit.

It would allow federal scientists to participate in scientific conferences, sit on scientific advisory or governing boards, contribute to the academic peer-review process. Each covered agency would be required to have a scientific integrity officer, an administrative process and dispute resolution process. 

Video of the markup session in on the committee website, with the discussion of H.R. 1709 beginning at about minutes 39.

Science Magazine and EOS reported on the markup.

Maybe A Breakthrough: Brechner Center Says PIO Constraints Have Never Survived Constitutional Challenge

A new, maybe landmark, report from the Brechner Center for Freedom of Information, asserts, “Although rules and policies requiring government employees to get approval before speaking to the news media are widely enforced, no such policy as ever survived a constitutional challenge.”

Frank LoMonte, Director of the Center, has worked closely with the Society of Professional Journalists and others in bringing to the fore the issue of mandated clearance or “Censorship by PIO.”

Some government agencies cite the 2006 Supreme Court case Garcetti v. Ceballos as authority to prohibit employees from speaking to journalists without going through the public information officers.

However, the new report says that case is about “when an employee speaks as part of a work assignment, that speech belongs to the employer, and the employee has no First Amendment claim if punished for performing the assignment in a way the employer finds unsatisfactory.”

The Brechner Center argues, “The government faces a much more demanding burden to justify a blanket restraint on speaking to the press than to justify punishing one particular speaker whose speech undermines the agency’s effectiveness.”

The center reviewed state and federal caselaw back to the 1940s and found nearly two dozen cases, “in which a court has struck down a blanket policy requiring public employees to get approval before speaking about their work.”

The report quotes one judge in the 1970s as saying, “The protected right to publish the news would be of little value in the absence of sources from which to obtain it.”

Some things that government public relations offices can legally do include coaching employees about giving interviews and issuing statements from the agency’s perspective, says the report. However, it concludes, “What they cannot do is compel either employees or journalists to clear every conversation in advance.”

“Censored 2020” Includes Essay on “Censorship by PIO”

I am happy to say the annual book, “Censored 2020,” is out and contains my essay on “Censorship by PIO.”


After expounding on terrifying stuff in federal agencies, like Smallpox virus that sat around for decades waiting to be sold to terrorists or whatever, I say:

 “We, the press, just weren’t there. By turning a blind eye to those closed doors and gagged people, we turn a blind eye to horrific situations.”

The essay recounts agencies not allowing contact with such small fry publications as the New York Times and the Washington Post.
 
The book is published by Seven Stories Press.

Massive Failure by FDA, Massive Failure by the Press

Katherine Eban is testifying before Congress and elsewhere about her book, “Bottle of Lies,” which paints a stunning, deeply researched picture of FDA being unable to ensure the safe manufacture of most drugs we take.

As a New York Times preview summarized it: “The fake quality-control data, bird infestations and toxic impurities at the overseas plants that could be making your medication.”

Among other horrors, Eban explains that sloppy manufacturing is one thing that can lead to substandard antibiotics that could contribute to microbes’ resistance to the drugs used to control them. Researchers fear such resistance will kill millions of people in the future.

“Eighty percent of active ingredients for both our brand and generic drugs come from abroad, the majority from India and China. America makes almost none of its own antibiotics anymore,” Eban said in the New York Times piece.

The book took Eban 10 years to write, while people most certainly died due to poor drug quality. During those years reporters usually were not able to talk to people in FDA or not able to talk to them without censors, because FDA prohibited that many years ago. It’s been over two decades since the agency kicked reporters out of its building.

That kind of contact is at the heart of reporting. It’s no wonder we did not know what was happening and it took a top investigative reporter a decade to do what might have taken less than half a year, if people weren’t silenced. Indeed, reporters might have been regularly covered this story indepth.

The book is critical journalism that reveals massive, long-term failures in journalism. Reporters are happily unaware of dangerous agency failure. We publish stories mostly from FDA releases, briefings, public meetings or other highly controlled information, knowing all the while the approximately16,000 staff are officially silenced and usually actually silenced. However, we make money. FDA looks good.

Here in the U.S. is a book which according to official FDA rules is banned information flow, since it exists because someone did defy the rules to provide information to a journalist.

Of course, as Society of Professional Journalists’ surveys show, such rules for silencing employees are now widespread across the country. They are a cultural norm, a system for burning books and other information before they exist.