Guest Blog by Kathryn Foxhall, veteran reporter on federal health issues.
Over the last 25 to 30 years there has been a surge in entities public and private prohibiting employees from speaking to journalists without oversight from authorities, often through a public information office. Just on their face, these restrictions ban all confidential contacts. However, they have also created a chokepoint where reporters are forced to apply for permission to speak to people and additional barriers are piled on including massive delays, behind-the-scenes controls on what may be discussed and, often times, total blockages. Journalists’ applications to speak often must go through multiple layers of clearance.
Reporters from prominent publications have described how tight the controls are and their impact on newsgathering. In the past year, thousands of employees at the Centers for Disease Control and Prevention have been virtually silenced as the U.S. government moved from one pandemic misstep to the next. The Society of Professional Journalists recently wrote to the Biden administration saying it “believes the nation is suffering the consequences of these controls during the COVID-19 pandemic. Agencies that the public count on, including the Centers for Disease Control and Prevention and the Food and Drug Administration, have stymied reporting for years. Often, the press is not allowed in their facilities and reporters are prohibited from contacting staff without the authorities’ oversight; in reality, reporters are often not allowed to speak to anyone.” Other groups calling for ending the restrictions include the Society of Environmental Journalists, the News Media for Open Government and the Knight First Amendment Institute of Columbia University.
An extensive analysis by First Amendment Attorney Frank LoMonte, director of the Brechner Center, finds that these constraints are unconstitutional and that many courts have said so. He says, “Decades’ worth of First Amendment case law establishes that public employees have a constitutionally protected right to speak about work-related matters without needing their employer’s permission. Policies and regulations that require pre-approval before government employees can discuss their work with the news media are invariably struck down as unconstitutional when challenged. Still, agencies persist in enforcing rules curtailing public employees’ ability to share information with journalists.”
The issue intertwines with several other important aspects of federal accountability, including:
Access to Records, Access to Meetings and Access to People
Open The Government’s Accountability 2021 calls for “restoring and reforming the executive branch’s commitment to public records and public meetings laws….” It’s also critical reporters have unfettered access to government employees. For one thing, documents obtained under the Freedom of Information Act and during public meetings can tell only part of the story without communication with insiders who know what is happening. Because of the need for access to people, reporters should also have credentials to enter areas in agencies most employees may usually enter to potentially uncover wrongdoing.
Accountability 2021 also calls for improvements in data quality and the usability of USAspending.gov. Spending transparency is almost impossible without reporters having access—often on a confidential basis—to people who work with budgets. Unfortunately, it’s easy for journalists or others to believe they understand the numbers, when in reality government employees, including some not in senior level positions, could disabuse them of many assumptions. The same is true for grants and contracts.
Protecting whistleblowers is critical, and communicating with whistleblowers is just one part of reporters’ work in understanding government. Journalists need to be free to routinely network by talking fluidly and informally to a variety of people, not just those authorized by senior official. They need to get to know employees across government and gain their trust. They need to talk with contacts others aren’t listening to and pull perspectives from people who may not routinely talk to each other.
There is a lot of information staff are not likely to mention when contact with reporters are allowed only under forced oversight. In such context, they may not share their expert opinion or even hard facts when that information doesn’t happen to support the agency’s official story. Reporters need to talk to a variety of staffers who may have no plans or intentions to blow the whistle but can provide access to all kinds of information – good, bad or neutral. Additionally, the reporting process can pull together critical understanding, even when no single person has the full picture. These interactions may simply lead to better informed reporting or may piece together bits of information that can uncover malfeasance.
The Scientific Integrity Act
Accountability 2021 calls for passage of the Scientific Integrity Act which would give scientists and scientific communicators in agencies the right to respond to media “interview requests” without prior agency approval. Agencies could require that the person report the subject of the interview to the agency afterwards. Senior public officials need to pause to look at how far our government has moved away from the First Amendment, the right to speak and especially the public’s right to know. As if we were in a very different country, some of us are asking for a few people to have the right to speak under some circumstances about only a few things. But the public is mocked when given only a few crumbs of the precious right. The Scientific Integrity Act should be strengthened to powerfully oppose, not endorse current, pervasive First Amendment violations. Except where there is a legitimate need for secrecy, no one should be pressured to report a conversation before or afterwards, any more than we should be forced to report our neighborhood conversations to the authorities. The protections should cover all employees, not just scientists, and should cover all subjects not legitimately confidential, not just science or research. It’s critical for democracy and our collective health for all people to speak freely, not just experts and scientists. That must include the right to speak to journalists and the right to speak confidentially. The ship of state could sink due to our obliviousness to what administrative assistants or janitors could tell us. We take condescending attitudes toward such employees at our own peril.
However, agency leaders fear employees will say the wrong thing if they are free to speak. They have a right to be fearful. Incorrect or misleading statements can hurt people and damage the progress of ongoing work. Nonetheless, we must hold on to the ideals of free speech and open government because when a few people in power control information flow and public scrutiny of their activities, it’s not rational to blindly trust them.
Kathryn Foxhall has been a health reporter in Washington, D.C., for over 40 years. She is active with the Society of Professional Journalists and other groups in opposing the constraints on reporting through public information officers’ oversight and other restrictions. Her blog on the issue is available here.