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Review of legal cases says much of ‘media policy’ censorship is illegal


12/11/2019


CONTACT:
Patricia Gallagher Newberry, SPJ National President, 513-702-4065, pattinewberryspj@gmail.com
Jennifer Royer, SPJ Director of Communications and Marketing, 317-361-4134, jroyer@spj.org

INDIANAPOLIS – In an important turn in the fight against the severe controls on reporters trying to communicate with public employees, the Brechner Center for Freedom of Information has presented a “roadmap” for journalists to legally challenge that censorship.

Attorney Frank LoMonte, head of the center, says, “Wholesale prohibitions on unapproved contact with journalists, or with the general public, have long been recognized as unconstitutional, and remain so even after Garcetti,” the 2006 Supreme Court decision often cited by agencies claiming they have the right to prohibit employees from talking to the press or forcing them to get prior approval from someone, often a public information officer.

In the newly released article in the Kansas Law Review, LoMonte says that employees are highly unlikely to bring a suit in order to speak to the media, but recent court cases indicate news organizations and even journalism membership groups should be able to litigate the issues around these workplace gag orders.

The article is a broader discussion of what appeared in the Brechner Center Issue Brief released in October. LoMonte is a member of the SPJ Foundation Board of Directors.

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.”

Paul Fletcher, chair of the SPJ Freedom of Information committee, an attorney and publisher of Virginia Lawyers Weekly, said, “The thoroughness of LoMonte’s research is groundbreaking. Journalists everywhere must recognize that despite their hard work and impressive reporting, these pervasive practices of silencing or putting censors on people inevitably keep much from the public. Our fight for the whole truth must include the fight against these dangerous barriers.”

The 70-page review analyzes dozens of cases from the Supreme Court and other federal courts. It says that despite the fact journalists should be able to challenge restrictions that deny their access to desired sources, there is no record of them having done so. Thus the “overbroad” restraints are unenforceable constitutionally, “yet still proliferate and still exert a powerful influence on the way employees behave.”

The article explains that the U.S. Supreme Court strongly disapproved of government policies that discourage employees from sharing their expertise with the news media in a 1995 case, United States v. National Treasury Employees Union. The Court’s later employee-speech cases – primarily its 2006 ruling in Garcetti v. Ceballos – created some confusion over the level of First Amendment protection that applies in the government workplace. But the Court clarified that government employees still have legally protected rights to discuss work-related matters with the public in a 2014 ruling, Lane v. Franks. In the Lane case, the court clarified that, saying, “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”

After examining cases since Lane, LoMonte said, “In short, there is no indication that federal courts widely understand Garcetti to have legitimized broadly worded prohibitions against discussing workplace matters,” calling such polices “constitutionally infirm and vulnerable to factual challenge.”

The article also gathers examples of questionably legal gag policies from agencies throughout the country, to illustrate how pervasively government gatekeepers at all levels are policing their employees’ interactions with the news media.

SPJ and other journalism and open government groups have been speaking out against the controls for close to a decade. Coalitions of up to 60 organizations have sent letters to the Obama Administration, the Trump Administration and Congress. Seven surveys sponsored by SPJ over five years showed these censorship practices have become pervasive in state and local government, schools, science organizations and police departments.

The SPJ D.C. Pro Chapter released a statement applauding the report.

Further information on media policy censorship:
• Other resources, including SPJ’s surveys, are on SPJ’s web page on the issue.
• On Oct. 17 the House Science Space and Technology Committee voted to kill proposed provisions that would have given federal scientists the right to speak to reporters without prior permission from the authorities in their agencies. Science Magazine reported on the mark-up.
• In its most recent resolution on the issue, the SPJ says the constraints are authoritarian and the public has a right to be dubious of statements from organizations in which employees can’t speak without guards.
• On Nov. 6, SPJ and 28 more journalism and open government groups sent a letter to every member of Congress calling for support of unimpeded communication with journalists for all federal employees.
• An essay in the book, “Censored 2020,” published in October, says this trend puts the entire public at risk: See “Censorship Through Public Information Officers.”

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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