EIJ18 session
‘Censorship by PIO: Challenging Gag Orders’:
There may be a legal case against PIO chokepoints, attorney says
By Kathryn Foxhall
A well-known freedom of information attorney says there is hope for legal action against the mandates that reporters go through public information officers (PIOs) to speak to employees in federal agencies and other entities.
Frank LoMonte told those in the audience at an EIJ18 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 getting information is the PIO bottleneck, or the aggressive manner in which government agencies, in particular, are policing access to the information they hold.
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, on 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 is an SPJ member, and was a member of SPJ DC Pro until moving away 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. It meant 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 the information he provided on the witness stand 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 and some proclaimed it the best session of the EIJ18 convention.
Here is a link to some tweets about the “Censorship by PIO” session from EIJ_News covering the convention. Also here.
~~~~~
The session also included a review by Carolyn Carlson of the seven surveys she has done for SPJ on these PIO situations. Foundational to SPJ’s work on the issue, the surveys show, among other things:
- Seven of 10 journalists at the federal level said they consider the government controls over who they interview a form of censorship.
- Forty percent of PIOs on the federal level admit to blocking specific reporters because of past “problems” with their stories.
- Seventy-eight percent of political and general assignment reporters at the state and local levels say the public is not getting the information it needs because of barriers to reporting.
All the surveys, some case studies and other materials are on SPJ’s site: www.spj.org/pios.asp.
~~~~~
From the August/September 2018 issue of SPJ DC Pro’s Dateline newsletter:
‘Censorship by PIO’ issue topic of EIJ18 session Sept. 29
DC Pro’s national SPJ Freedom of Information Committee representative Kathryn Foxhall, who also is chapter recording secretary, points out a session of interest at the annual convention EIJ18 in Baltimore. The chapter has made “Censorship by PIO” its signature issue under Foxhall’s leadership.
The session is “Censorship by PIO: Challenging Gag Orders on News Sources,” to be presented Saturday, Sept. 29, 10:30 to 11:30 a.m. The session is described on the agenda: “Policies forbidding employees from unapproved communications with journalists are being enforced with increasing aggressiveness, but they are almost certainly unconstitutional in the government workplace and they may well violate federal labor laws in the private sector. We’ll exchange ideas about the severity of the ‘censorship by PIO’ problem and strategies for navigating roadblocks to get access to newsmakers.”
Speakers are:
Frank LoMonte, a professor of media law and director of the Brechner Center for Freedom of Information at the University of Florida, where he leads a team of researchers incubating programs that make information more accessible and actionable for journalists and all citizens. He was previously the executive director of the Student Press Law Center (SPLC) in Washington, D.C.
Carolyn Carlson, former SPJ national president and recently retired journalism professor at Kennesaw State University. From 2012 to 2017 she conducted seven surveys of reporters and PIOs, documenting the tensions in their relationships.
NASW also is tackling the issue of PIOs hindering access.
The National Association of Science Writers will hold a summit on access issues, specifically PIO issues, Oct. 16, after its annual meeting in Washington, D.C.
Gabriel Popkin, a freelance D.C. science reporter, is leading this effort.
The invitation to the event states, “The ultimate goal is to move toward drafting aconsensus vision statement or set of guidelines that science journalists and PIOs can then use to guide future interactions.”
The NASW Annual Meeting is Oct. 12-16. It’s possible to register for the summit for $15 without registering for the entire meeting.
~~~
In related news: The Foundation for Individual Rights in Education is challenging similar policies at Nassau Community College. In August, FIRE wrote to Liberty University.
~~~
Resources:
- SPJ’s most recent resolution on the PIO issue, from 2017, calls on journalists and others to start discussions on the restrictions and their hazards to society. It notes that, “SPJ has clearly stated in its concerns regarding the harm done by restrictions on access, including mandates that reporters always go through PIOs.”
- SPJ website on the issue links to all of Carolyn Carlson’s surveys showing how pervasive the restrictions have become and the case studies in the federal government.
~~~~~
‘Censorship by PIO’ theme of Kathryn Foxhall speech
June 14, 2018, to AAUP conference Arlington, Virginia
These remarks were delivered by Kathryn Foxhall at a session of the American Association of University Professors Annual Conference in Arlington, Virginia, on June 14, 2018. The transcription from audio delivery is by Temi.
[For more information on the “Censorship by PIO” issue, go to the information page on the Society of Professional Journalists website at spj.org here.]
Okay.
So in 2014, the Centers for Disease Control admitted that they had found patterns of mishandling of dangerous pathogens. The agency in the whole world that is most responsible, takes the lead on infectious disease, and they were just not doing what they were supposed to do.
At the same time, the Food and Drug Administration found smallpox in one of their storage areas that they were cleaning out.
Smallpox!
It was estimated to have killed 300 million people in the 20th century alone. And when it was eradicated in the human population in 1979 — in what I think is one of the most precious agreements that humanity ever came to — they said that there would only be two stockpiles of it: one in Atlanta at CDC and one in Russia.
FDA just found some in a storage room, in a cold storage area, that had apparently had not been inventoried in decades.
But there’s a bigger scandal here. And that is that all those people, all those people around those situations — you know, the lab people who knew that these storage areas had not been inventoried and knew that anything on Earth could be in there — were silenced. Forever, by policy. Never, ever to speak to a reporter without going through the censors, which means, in effect, most of them will never speak to a reporter.
So you don’t chat, you don’t get to know people.
And, you know, this is where we are.
I have worse news: They’re still silenced. Those people in CDC, those people in FDA, still silenced. That’s the policy.
Something really stunning has happened over the last 20, 25 years. Agencies, organizations, businesses, nonprofits, on and on, have brought on a surge of these policies of blocking reporters from communicating to staff without notifying the authorities — usually a PIO [public information officer] — unless they are tracked and monitored by public affairs offices.
Somebody needs to look into why this is happening, why we didn’t react.
It’s mean, powerful censorship that’s now a cultural norm.
Reporters used to walk the halls of agencies, something that has long since been prohibited. And they called employees at will. They got educations, they got an understanding, Really dynamic stuff.
It’s more than one time that a reporter told the agency what was going on in the agency.
I’m not the only person to compare this to something out of Stalinist Russia or another authoritarian regime.
And then we began to understand that this was happening in universities. How, how did we get here? I mean, how did any, any university community accept this without just going off the deep end?
There’s usually two aspects, at least two aspects, of these controls:
First of all, you can’t talk to anybody without going through the PIO. Then, secondly, if you go through the PIO, you don’t get through.
That’s typical now. And I would say in FDA, probably a lot of other agencies, journalists come to the point they don’t call them because you’re just banging your head against the wall.
It’s important to say what the journalists who are working on this are not saying.
— We’re not saying that many entities, agencies, organizations, don’t often need an avenue such as a public information office to convey, to coordinate, the official story.
— We’re not saying that the public information offices don’t often help reporters or that there are many times that the reporters — well, all the time — the reporters seriously need to understand the official story and they often need to get that through the public information offices.
But the mandate for reporters to never speak to anyone without notifying the authorities often means that people can’t speak to us at all.
And it silences them about many things, if they are able to speak to us.
So I would say the formalized resistance to this started at the beginning of the Obama administration.
And you know, he said he was going to be the most open administration in history. He had us going. We had such hope. So we worked with the Office of Science and Technology Policy behind the scenes. They were going to come out with scientific integrity policy.
We waited almost the whole of 2010, after we had explained the issue to them, written letters and then, at the end of 2010, the OSTP under John Holdren, came out with the scientific integrity policy which said among other things, federal scientists may speak to “the media and public about scientific and technological matters based on their official work with appropriate coordination with their immediate supervisor and public affairs office.”
We were just shattered.
We had waited. We had believed. And I feel like that was historic moment of the up to that point, the highest level endorsement of the PIO censorship that had happened.
So during the Obama administration, we sent three letters. We led in that effort and between 38 and 52 journalism and open government organizations signed the letters. Finally in 2015, they set up a meeting between a few of us and President Obama’s press secretary, Josh Earnest.
They promised us an answer from the president and we never got it.
I left a copy of the book “Bad Blood” for President Obama, the story of the Tuskegee experiment, with a note or a reminder that that 40-year experiment only came to an end because of an unauthorized contact between a reporter and a quote “insider.” That was a former employee.
At the same time we were doing these letters along the same way, Carolyn Carlson, who recently retired from Kennesaw State University, did seven surveys from 2012 to 2016. She surveyed public information officers and reporters at the federal level, public and general assignment reporters across the country, education writers, science writers, police reporters, and police PIOs.
We have a site. SPJ has a website called on PIOs. And I have some handouts.
It’s packed with information. So I really would urge you to look at it. All the surveys are there.
But she found seven of 10 journalists said they consider — this was on the federal level — said they considered government controls over who they interview a form of censorship. Forty percent of PIOs on the federal level admit to specifically blocking specific reporters because of past problems with their stories.
- Seventy-eight percent of political and general assignment reporters at the state and local level say the public is not getting the information it needs because of barriers to reporting.
- Almost a third of education reporters said they had been prohibited by the PIO from interviewing school department or institution employees. This blows my mind. This is in an era when institutions have been repeatedly found to be covering up child abuse.
- Fifty-seven percent of science reporters said the public is not getting the information it needs because of barriers to reporting.
- And the most chilling survey to me was that of police departments. Fifty-six percent of police department [reporters] said they can rarely or never interview police officers without involving a PIO. When asked why, reporters said things like, “no reason, given individual officers are not permitted to speak directly to the press.”
Asked why they monitor the interviews, some police PIOs said things like “to ensure the interviews stay within the parameters that we want.”
So, I mean, now, you know, we’re hearing all over the place that universities are doing this.
It almost, you know, it almost makes you want take to your bed or something because with everything happening.
Michigan State University, now accused of turning a blind eye to the sexual abuse of young women athletes for many, many years, has on its website, as of Tuesday night [June 12] when I looked: “University employees who are asked to respond to inquiries from the media beyond providing commentary as a subject matter expert or discussing their own scholarly or professional work are strongly encouraged to contact us for assistance and counsel.”
In other words, shut up about anything that you might know about all kinds of things.
My question is why would people of integrity, whether it’s the leaders of an institution or the PIOs, want to be involved in this kind of thing. Because if you shut up that many people for any length of time, you’re going to hide or induce evil stuff.
It makes no difference that you do not know about what you’re hiding. You are the one that put the chains on the fire escape.
Having said that, I feel like journalists are ultimately responsible for this, more responsible for this, than anything else. As long as we keep taking this censored information and not even opposing it or warning the public, organizations will keep dishing it out.
So why are major news outlets not saying anything about this? I don’t know, but my guess is that, for one reason, we fear for our own credibility. If we say we can’t get into this institution, we can’t get into all these institutions, then we’re just saying we don’t have the story.
But I think also our work ethic has betrayed us because very, very deep[ly embedded] into journalists is: it’s always hard. People are always going to try to stop you. You just keep at it. You, you use your techniques, you use your, you work, you, you know how to get it.
And there’s the thing, a conceit that good reporters get the story anyway. But what we don’t take into account is after a journalist publishes the story and our editor and audience loves it and we win an award for it, there are still people in that agency who could, who could blow it to smithereens, who could just — I mean, they are the people looking at this issue every day. And they still can’t speak. After they look at your story and say, “Oh my God,” they’re going to go back to work and say, “you know, it’s not my responsibility to ruin my job because one story is stupid.”
And there’s also the possibility that it’s just too big for us. We run into this everywhere we go, government, businesses, nonprofits, wherever we’re trying to find an alternative source, we’re running into the same thing. So it’s either take the censored information or not.
Final example: a couple of days ago, several news outlets had the FDA announcement: “FDA puts bad actors on notice. Agency is cracking down on illegal online opioid sales.”
Yay, FDA!
Who would believe that? All the people around it can never speak. Most of them can never speak at all. The people who are releasing the information can never speak to us without censors. They can’t.
So we, who have been reporting for a while — particularly when you’re reporting on an agency, specific agency like FDA — It’s like, fine: Where’s the other 95 percent of the story?
I mean, this just makes FDA look wonderful. We’re, we’re deep into the opioid crisis and it’s not stopping. We haven’t had access to DEA, to FDA, to NIH.
So what was going on? What people in the agency had a completely different theory about what we should be doing and what would they have said? We in the press don’t know. We’re not two inches into an agency like FDA.
So this is where we are as a society. The federal government is one example, but it’s all over everywhere. And there are a number of journalists who are just scared to death.
~~~
Kathryn Foxhall is a veteran reporter covering health policy issues from Washington. She is recording secretary of the Washington, D.C., Pro Chapter of the Society of Professional Journalists and active with the national SPJ organization and the National Press Club on Freedom of Information issues.
