When Secretary of Defense Mark Esper issued a memo that requires all contacts with news reporters to be coordinated through the Pentagon’s public affairs office, he highlighted a widespread practice that journalism advocates say restricts information, creates political “spin” and gags policy experts.
The Pentagon is not the only federal department operating under such limitations. In the first days of Donald Trump’s presidency, the administration, worried about mixed messages on climate change and other issues, tightened control of information from government scientists.
Those types of directives precede the Trump administration, but they have greater urgency during a health crisis such as the coronavirus pandemic when access to expert data is crucial to inform the public.
“It’s become pretty painfully obvious that elected officials have a vested interest in selectively ‘spinning’ data to convey the impression that they have COVID-19 under control,” said Frank D. LoMonte, a journalism professor at the University of Florida and director of The Brechner Center for Freedom of Information.
“If journalists can’t talk to the actual subject-matter experts, then we’re all going to be left with unverified and selectively cherry-picked claims that might cause people to make uneducated decisions about their safety.”
LoMonte has written extensively about efforts to silence or control the ability of public employees to speak freely. We reached out to him to learn more about the history and the implications of these forms of information control.
What do these restrictions mean at a time of dwindling journalists resources, particularly at the local level?
LoMonte: It’s less and less possible for news organizations to cultivate the source relationships within government agencies that might get them around restrictive PIO gatekeeping policies. News organizations have been buying out their most senior reporters to save money, and those are the reporters with the deepest network of contacts.
Reporters who used to cover one or two agencies are now covering a dozen, and they just can’t spend the time pounding the pavement to meet the rank-and-file employees at all of those agencies while still meeting deadlines and cranking out work. And then you overlay COVID-19 on top of it all, and it’s even more challenging to develop a rapport with anyone at an agency other than an official P.R. spokesperson.
It’s really much more important than ever to challenge these agency gag policies and get them off the books, because we can’t assume that agencies are all being aggressively covered by experienced, well-sourced reporters anymore.
It is a maxim of Washington journalism that good reporters avoid press secretaries and public information officers and develop their own reporter-source relationships with government officials in the know. Why is that not adequate?
LoMonte: When people are placed in fear for their jobs, they’ll either shut down from speaking entirely or speak only anonymously. It’s well-documented that stories full of anonymous sources are regarded as less trustworthy, and the use of anonymous sources has been weaponized by media critics to suggest that stories are fabricated. If the agency’s stated policy is that it’s a punishable disciplinary offense to get caught speaking to the media without authorization, then journalists will be left with only officially hand-picked sources or anonymous ones.
Many institutions and organizations in the private and non-profit sector require employees to seek approval before speaking to reporters. Are those efforts at centralizing communications different than when the government does it?
LoMonte: The National Labor Relations Board has been telling employers for decades that they can’t enforce categorical gag policies, because that will inhibit people from speaking out about working conditions and safety hazards. The problem is that almost nobody knows this line of NLRB precedent exists, and the penalty for being a violator is generally not much more than being ordered to rewrite the company’s policies, which is not exactly a powerful deterrent.
The National Labor Relations Act doesn’t cover every workplace — it doesn’t cover mom-and-pop local retailers or overtly religious organizations — but where it applies, it outlaws gagging employees from discussing their work with the press and public. So while I think people in government service probably are taking their cues from the private sector, the answer is that the private sector is also breaking the law, and just because the guy in the lane next to you is driving 90 mph doesn’t mean it’s legal for you to do it, too.
Is Esper’s demand that media contacts be initiated through public information officers unusual?
LoMonte: It’s actually not at all uncommon. Carolyn Carlson, who’s a retired journalism professor in Georgia and a former national president of the SPJ, has done surveys of journalists for many years about their experiences with gatekeeping by government P.R. officers, and she has consistently found heavy-handed policing of access to sources at all levels of government. The federal government, in particular, has been aggressive about controlling access to its employees. One of her surveys found that 78 percent of reporters assigned to cover federal agencies were unable to contact agency employees without going through a public-relations office either all of the time or most of the time.
Are these types of restrictions new to the Trump administration?
LoMonte: While people really started to sit up and take notice after the January 2017 inauguration when the incoming Trump administration told government scientists not to talk to the media, federal agencies have been restricting employees from speaking freely to the news media for many years.
It got so bad that national journalism organizations asked for a series of sit-down meetings with the Obama White House and its press operation, but nothing really changed. The Union of Concerned Scientists did a survey in 2008 during the tail end of the George W. Bush administration and found that about half of the federal health-and-safety agencies tightly restricted their employees from speaking publicly about their work. The report was particularly hard on OSHA and the Consumer Product Safety Commission, which the UCS said, quote, “focus on message control rather than openness.” So these restrictive policies have been with us for a long time, across party lines.
How can similar restrictions on government scientists talking to reporters affect public understanding of the COVID crisis?
LoMonte: It’s become pretty painfully obvious that elected officials have a vested interest in selectively “spinning” data to convey the impression that they have COVID-19 under control. If journalists can’t talk to the actual subject-matter experts, then we’re all going to be left with unverified and selectively cherry-picked claims that might cause people to make uneducated decisions about their safety.
Look at the difference between the messages that have been sent by public-health professionals versus the official messaging at White House briefings, where the importance of mask-wearing was until very recently downplayed. We’ve been getting very different stories from the experts at the CDC, who’ve advocated a cautious approach to reopening schools, versus the full-speed-ahead messaging from elected officials.
So it matters quite a lot that journalists have access to actual scientists and healthcare professionals, especially those who are advising the government on policy decisions, to fact-check the claims we’re hearing from people with a political agenda.
How have the courts ruled when government employees have pushed back against these limitations?
LoMonte: Going back as far as the 1940s, every single time a government employee has frontally challenged a prohibition on speaking with the media under the First Amendment, the employee has won. There are at least two dozen published court opinions across the country in which agencies have been told that they can’t enforce a blanket prohibition on speaking to the news media without supervisory approval.
The First Amendment doesn’t disappear just because you accept a government paycheck, and a prohibition on discussing anything work-related with journalists is just indefensibly broad. Under the First Amendment, an overly broad policy is legally void and unenforceable, because the government can only suppress as much speech as is absolutely necessary to get the job done, and suppressing all speech is just not necessary, and every court that’s been asked that question has said so.
Would journalists have standing to challenge these restrictions on 1st Amendment grounds?
LoMonte: Although it doesn’t seem like any news organization has ever tried it, there’s no legal reason that journalists should not be able to step into the shoes of their sources and bring a First Amendment challenge.
The precedent is already well-established in a very similar context, gag orders imposed by trial judges. In that context, news organizations have had no trouble establishing that they’re the proper plaintiffs to bring the case, either because their rights are directly affected or because they’re indirectly affected by the violation of their sources’ rights. In fact, some judges have treated a restriction on interviewing participants in trials as a “prior restraint” directly on the news media, which means there’s an almost ironclad legal presumption that the restriction is unconstitutional.
Have any news organizations reached out to you for advice on how to uproot this system?
LoMonte: I don’t actually bring court cases, so our job at the Brechner Center is just to put the ball on the tee as neatly as we can, and that’s what we think we’ve done with our research on the illegality of workplace gag orders. It’s public knowledge that the Knight Columbia Institute in New York is already pushing back against gag policies at federal health agencies, which is great. But we actually want to see more litigation at the state and local levels, because that’s where journalists are in the most dire need of access.