SPJ hails lawsuit to challenge gag rules in public agency

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The lawsuit is believed to be the first brought by a journalist on this issue
8/18/2023

CONTACT:
Claire Regan, SPJ National President, cregan@spj.org
Kathryn Foxhall, SPJ Freedom of Information Advocate, 202-417-4572, , kfoxhall@verizon.net
Zoë Berg, SPJ Communications Specialist, 317-920-4785, zberg@spj.org

INDIANAPOLIS — The Society of Professional Journalists congratulates investigative journalist Brittany Hailer for her efforts challenging the Allegheny County Jail in Pennsylvania for its policies prohibiting staff and contractors from speaking to the media or others about the jail without approval.

As part of these efforts, Hailer filed on Thursday what is believed to be the first such lawsuit brought by a journalist. Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions. Journalism groups have been actively decrying such gag rules for at least a decade.

“These speech bans, which journalists have seen grow more pervasive and controlling, are among the most damaging threats to free speech and public welfare today,” said SPJ National President Claire Regan. “SPJ has repeatedly led in opposing these restrictions which it has called censorship and authoritarian. Hailer’s suit shows journalists themselves can fight back in court against people in power silencing subordinates in terms of talking to reporters or forcing them to report conversations to authorities.”

The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press filed the suit on behalf of Hailer, director of the Pittsburgh Institute for Nonprofit Journalism, whose work is funded in part by The Pulitzer Center.

The complaint says, “The Gag Rules prevent reporting that is urgently needed to inform the public about conditions and events at the Jail and unconstitutionally impede news coverage of the Jail needed for meaningful public oversight and accountability.”

Hailer has reported extensively on problems at the Allegheny County Jail. For example, the suit claims, since April 2020, at least 20 men have died after entering the jail, with circumstances of many of the deaths being unclear and, “in several cases, the Jail has never provided medical records to family members to confirm a cause of death.”

“This case presents an important issue for reporters at a time when agencies at every level of government are barring their employees from talking with the press,” said David Schulz, director of the Media Freedom and Information Access Clinic. “The issue at the heart of this case goes directly to the ability of the press to ferret out the news the public needs for democracy to function.”

These restrictions are sometimes referred to as “censorship by PIO,” because many agencies force employees to refer any reporter to their public information office rather than speak with them. SPJ surveys have shown the controls to be common in federal, state and local government, in science, education and police departments. Last year Glen Nowak, a former media relations head at the Centers for Disease Control and Prevention, said that from the 1980s forward each presidential administration tightened what that agency could say until every contact with a reporter had to be vetted through the political layers of government.

In 2019 Frank LoMonte, then head of the Brechner Center for Freedom of Information and SPJ Foundation board member, published a legal analysis and road map for this kind of action by journalists, saying, “media plaintiffs should be able to establish that their interests have been injured, whether directly or indirectly, to sustain a First Amendment challenge to government restraints on employees’ speech to the media. The only question is whether the restraint will be treated as a presumptively unconstitutional prior restraint, or whether a less rigorous level of scrutiny will apply.”

Kathryn Foxhall, who was awarded the 2021 SPJ Wells Memorial Key for her extensive work opposing gag rules, said, “Information control is one of the most abusive, deadliest things in all human history, even when leaders believe in what they are doing. Journalists take pride in the notion that, ‘Good reporters get the story anyway.’ But we don’t know what remains hidden. We need to fight these bans as if many lives depend upon it. They do.”

SPJ hopes Hailer’s lawsuit will bring about similar challenges and reduce restrictive gag orders placed on public agencies that impede journalists’ important work.

Other Resources:

— A 2022 Columbia Journalism Review article by Foxhall gives a history of the restraints.

— SPJ has said the controls are censorship and authoritarian.

— SPJ has sponsored seven surveys showing that the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc.

— Among many communications over years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for elimination of such restrictions in the federal government

— Journalism groups’ freedom of information officers told The New York Times in 2022, “The press should not be taking the risk of assuming that what we get is all there is when so many people are silenced. We should be openly fighting these controls.” The longer version of the letter is here.

— Editor and Publisher featured the issue of censorship by PIO in October 2021.

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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