The Washington D.C. Pro Chapter of the Society of Professional Journalists is hailing a newly released analysis pointing a way for legally challenging the current censorship on news gathering in many public agencies, including federal agencies.
For the last quarter century or so, many public agencies on all levels have instituted restrictions that prohibit all or most of their employees from communicating with journalists without the permission or oversight of authorities who often are agency public information officers (PIOs).
These restrictions are, by themselves, routine suppression of information. However, built on top of those controls are further obstructions, including: lengthy delays for journalists to get information; blockages to prevent journalists from contact with the requested sources or with anyone from an agency; PIOs listening in on conversations; and requirements for reporters to submit questions in writing.
Now, an exhaustive review of Supreme Court and other legal decisions contends that these restraints are illegal because they violate the Constitutional right to free speech.
The newly released 70-page article in the Kansas Law Review, whose author is attorney Frank LoMonte, head of the Brechner Center for Freedom of Information, states that these agency rules are “unenforceable constitutionally, yet still proliferate and still exert a powerful influence on the way employees behave….”
The D.C. Chapter of SPJ applauds LoMonte’s conclusion that journalists themselves should be able to challenge these restrictions. In many cases, LoMonte said in the review, “journalists have had little difficulty establishing standing to challenge the breadth of judicial orders banning attorneys, parties, and witnesses from speaking with the media. Journalists consequently should have standing to litigate the constitutionality of employee gag policies in the absence of a motivated employee plaintiff.”
Chapter officers vowed to work with others on this issue in coming months.
The Kansas Law Review article is a broader discussion of the material in October’s Brechner Center Issue Brief.
Kathryn Foxhall, chapter board member and an SPJ point person on this issue, stressed, “PIOs have often been very helpful to journalists. Many times, journalists need their aid with basic questions. Also, reporters have an obligation to understand the official version of the story and PIOs may be the avenue for that. Unfortunately, people in leadership at some agencies often have prohibited all contacts that don’t go through PIOs, which is effective censorship. It has transformed many of these legitimate PIO professionals into censors, right in the United States.”
“Journalists must recognize that doing news gathering under this type of censorship is dangerous to the public’s understanding of the world, to public welfare, and to democracy. Even when we do groundbreaking reporting, we can miss a lot with thousands of people in these agencies still silenced,” Foxhall said.
SPJ D.C. Pro chapter board member Kenneth Jost, an attorney, a long-time Supreme Court reporter, and author of the CQ’s Supreme Court Yearbook, commented on the law review article: “Frank LoMonte makes a very persuasive case based on Supreme Court precedent that blanket restrictions preventing government employees from providing information to reporters on matters of public interest within the scope of their employment are unconstitutional under the First Amendment.”
The chapter’s parent organization, the national SPJ, has also issued a statement applauding the legal review. SPJ’s longtime work against agency restrictions has included surveys showing the practices have become common in federal, state and local government, schools, police departments, etc.; letters signed by dozens of organizations to the Obama and Trump administrations and to Congress; and a 2015 meeting with Obama administration officials.
SPJ’s most recent resolution on the matter, approved by the national SPJ 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.”
The resolution further says, “The public has a right to be dubious about information coming from public or private organizations where employees are silenced in terms of communicating to the press or where they cannot speak without guards.”