Government gag rules muzzle journalists’ sources

Caitlin Vogus Headshot

Deputy Director of Advocacy

Close up on the face of a man crossing his eyes and with duct tape over his mouth

Rules that silence public employees can also stymie journalists from reporting newsworthy information.

As the COVID-19 pandemic raged in Allegheny County, Pennsylvania, journalist Brittany Hailer reported story after story about its impacts on the county jail, including the deaths of incarcerated people, shortages of correctional and medical staff, the prolonged use of 23-hour lockdowns, and unsafe and unsanitary kitchen practices.

Hailer’s news stories quote many sources: incarcerated people, their family members, the jail spokesperson and warden, and more. But the voices of rank-and-file jail employees are nowhere to be found, at least on the record. The reason? Jail policies that prevent them from speaking to the press.

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Government gag rules are policies that prohibit public employees from speaking to journalists about their work or require them to seek approval from higher-ups first. Gag rules often mean that journalists seeking firsthand information must go through a high-ranking official or public information officer who often lacks the on-the-ground knowledge reporters need. And even if PIOs do know some information about a news story, they can be more concerned with protecting the government’s image than giving a reporter the facts.

Last summer, Hailer became the first journalist in the country to file a lawsuit testing government gag rules, when she brought a First Amendment challenge to the Allegheny County Jail’s policies. Hailer’s lawsuit, which remains pending, claims there are several jail workers who want to speak out about unreported problems, but can’t because of the gag rules.

She argues that the policies violate her First Amendment right to speak to sources who want to talk to her. Hailer also argues that they violate the First Amendment rights of the jail employees by prohibiting them from speaking as private citizens on matters of public concern.

The Supreme Court has said that employees don’t surrender all of their First Amendment rights simply because they take a government paycheck. Based on that precedent and other decisions disfavoring “prior restraints” on employee speech, numerous courts have ruled in favor of government employees who have challenged policies requiring them to seek preapproval before speaking about their work.

Despite that, government gag rules remain abundant, either because agencies don’t know about this precedent or just don’t care, especially if their individual policy doesn’t face a court challenge.

While in the past, government employees may have felt relatively free to speak to reporters, in recent years, censorship by PIO has become the norm. The Society for Professional Journalists has long documented and decried these rules as “an effective form of censorship by which powerful entities keep the public ignorant about what impacts them.”

Some journalists say that they don’t need government sources to speak on the record to effectively report the news, and it’s true that there are other ways to find and report information. But government employees are important sources for many journalists, and rules muzzling them undoubtedly make reporting harder. When government sources can’t confirm information on the record or are afraid to speak even off the record, there’s sure to be important information that never makes it to the public.

Plus, government agencies are making it harder and harder for even the most diligent reporters to find other sources of information. Freedom of Information Act backlogs continue to grow. Courts close trials to the public or otherwise limit public access. Officials target journalists for uncovering information online, even when the government puts it on the internet itself. Excessive secrecy, combined with gag rules, leaves reporters with fewer and fewer avenues to report about what’s truly happening within all levels and branches of government.

Gag rules also help the government manipulate for political reasons the information journalists and the public receive. The Trump administration stopped the Environmental Protection Agency and other federal agencies from talking to the press about climate change. During the height of the pandemic, Trump also prevented employees of the Centers for Disease Control and Prevention from talking to the press, potentially endangering people’s lives.

But a government policy gagging employees doesn’t have to be part of a nefarious plot to cover up wrongdoing for it to interfere with the public’s access to information. These rules often prevent even basic information about how government employees do their jobs from getting out. For example, gag rules have forbidden everything from a police officer talking about the impact of responding to a school shooting to a state scientist explaining his research on birds.

Hailer’s legal challenge will be an important step in establishing that journalists have a First Amendment right to speak to willing government employees. But it shouldn’t take a legal battle for the Allegheny County Jail and other government offices to understand why gag rules are unconstitutional and wrong. The point is simple: The people who work for the public should be allowed to speak to the public.

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