SPJ calls for action by journalists against gag rules after key legal win

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Settlement on public employee speech restrictions ends case believed to be the first of its kind brought by a journalist.
5/23/2024

CONTACT:
Ashanti Blaize-Hopkins, SPJ National President, ashanti.blaize@gmail.com
Kathryn Foxhall, SPJ Freedom of Information Advocate, 202-417-4572, kfoxhall@verizon.net
Kimberly Tsuyuki, SPJ Communications Specialist, 317-920-4785, ktsuyuki@hq.spj.org

INDIANAPOLIS — The Society of Professional Journalists is issuing a call to action for journalists to fight government restrictions on employee speech rights following what is believed to be the first time a journalist has won a legal settlement against gag rules on workers in public agencies.

The settlement came in a suit brought by investigative reporter Brittany Hailer against the Allegheny County Jail in Pittsburgh for its rules prohibiting employees from speaking to the press or posting information on social media. After rounds of negotiations with Hailer’s attorneys, the county agreed in April that its employees and contractors “have constitutional rights to speak on matters of public concern when acting as private citizens and not purporting to represent the view of the [Allegheny County Bureau of Corrections].”

Now, in a call to action, SPJ is urging journalists to consider similar legal action; use the case for discussions and editorials opposing such speech restrictions; and educate the public about the dangers of such censorship.

“This settlement is of historic importance,” said SPJ National President Ashanti Blaize-Hopkins. “Gag rules are being adopted in all kinds of federal, state and local agencies, from congressional offices to schools and police departments. The settlement shows journalists that they can fight these widespread restrictions -- and why they should.”

SPJ is calling on journalists to review SPJ’s Gagged America resource collection and move vigorously against employee speech restrictions. We encourage news outlets and journalism organizations to:

-Use the Allegheny County settlement as inspiration for legal action against constraints on journalists’ speaking with employees, including mandates that reporters go through public information officers.

-Use the settlement’s statements on First Amendment rights to oppose such gag orders in contacts with officials and in editorials.

-Research and report on speech controls in particular states, localities or institutions.

-Educate journalists, officials and others on the history and the impact of such censorship.

-Join forces with other news organizations, advocacy groups, journalism schools, and press associations to demand answers from public officials and mount legal challenges.

-Push for open access to people, along with pushing for open access to documents, to help ensure the documents are fully understood.

-Call on organizations of public relations professionals to oppose restrictive practices, which serve to hide critical information.

SPJ’s resources on gag rules include a legal analysis and road map for action by journalists authored by Frank LoMonte, then head of the Brechner Center for Freedom of Information and a current member of SPJ Foundation Board of Directors. The 2019 analysis states that “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 Allegheny County settlement says policies, “may not regulate the employee when they speak on matters of public concern as private citizens on their own time, provided they are not in uniform and do not otherwise create the impression they are speaking in an official capacity….”

Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions.
 
The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press represented Hailer in the case. She was director of the Pittsburgh Institute for Nonprofit Journalism when the suit was filed and is now with the Marshall Project.
 
SPJ helped engender the case by writing about the issue to the Yale clinic and others and has made numerous public statements since.

Blaize-Hopkins, SPJ’s president, said, “After years of opposing these dangerous information restrictions, SPJ and other journalists are deeply grateful to Hailer and her attorneys for this outstanding work.”

Kathryn Foxhall, a point person for SPJ on the issue, said, “Information control is one of the most abusive, deadliest forces in human history. This case serves as a model for other journalists to move against this kind of insidious censorship, which far too often goes unchallenged.”
 
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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Resources:
- A Society of Professional Journalists resolution on “allowing federal employees to freely talk with the press” notes that “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.”
-SPJ has sponsored seven surveys showing the restrictions are pervasive in federal, state and local government, education, science organizations, police departments, etc.
-Glen Nowak, a former CDC head of media relations and a longtime communications employee, has said that since the 1980s the restrictions on CDC staff have grown tighter with each presidential administration; every contact with a reporter is controlled by the higher political levels; and that this system “works” for officials in terms of suppressing information.
- A recent article in FAIR.org and an earlier one in Columbia Journalism Review examine the gag rules.
-The New England Chapter of SPJ sponsored a Zoom program on the Allegheny suit, moderated by First Amendment attorney Frank LoMonte, who has written a  legal pathway for such actions. 
-A Maryland, Delaware, and District of Columbia Press Association podcast episode features the lawsuit by journalist Brittany Hailer and one of her lawyers, RCFP attorney Paula Knudsen Burke. 
-Among many communications over the years, 25 journalism and other groups wrote to the Biden Administration’s Office of Science and Technology Policy asking for the elimination of such restrictions in the federal government. 
-Journalism groups’ FOI officers told  the New York Times, “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. 
-A review of recent actions is in the PR Office Censorship blog.