CORRECTION: The headline for this story originally stated that the White House was being sued. The original FOIA request was for the CDC and the White House, but the subsequent lawsuit only names the CDC and the U.S. Department of Health and Human services. The author regrets the error.
Of the myriad ways coronavirus has exposed rifts in American life, for journalists one of the most important came in the form of a freedom of information request issued on March 19.
The request came from Columbia University’s Knight First Amendment Institute, and seeks policies from the Centers for Disease Control and Prevention (CDC) and the White House restricting CDC employees’ communications with the press and the public, including those related to the coronavirus pandemic.
“The mission of the CDC is to ‘provide health information that protects our nation against expensive and dangerous health threats.’ Yet in the face of a new public health emergency, reports suggest that White House officials have prioritized political expediency over accuracy, and are pressuring CDC employees to do the same,” reads a portion of the request, which goes on to state that the presidential administration has “has downplayed the severity of the outbreak and withheld important facts from the public.”
When records weren’t produced, the institute filed a lawsuit on April 2 seeking their immediate release.
As long as CDC employees are barred from speaking, it won’t be possible to know what information is being altered or withheld — which presents major problems as the COVID-19 death rises in the U.S.
“We are very concerned by reports that the Trump administration has restricted what CDC employees can say and how they can say it,” said Anna Diakun, a staff attorney at the Knight Institute. “Public employees still have the right to speak as citizens on matters of public concern. These policies appear to sweep too broadly. If the policies are written as reports suggest, then they are indefensible and unconstitutional.”
The virus is new, but the underlying issue isn’t. For years, government employees have come under increased scrutiny when it comes to speaking to the media. Many are barred, whether formally or informally, from speaking to journalists at all without approval. When they do, it’s often with oversight in the form of a company official sitting in on the interview.
The name those officials take, as science journalist and SPJ Freedom of Information committee member Kathryn Foxhall writes in Medpage Today, is a dangerously misleading oxymoron.
“Journalists are officially prohibited from communicating with anyone in the CDC and other federal agencies without the oversight of censors — much to our discredit, we go along with their official title of ‘public information officer’ or PIO.”
Foxhall said the situation has grown increasingly worse over the last two decades. When CDC and other government employees cannot speak publicly, the narrative is restricted and the truth can be suppressed. She likens journalism run through PIOs to fishing over a 25-foot wall: You may get something, but you have no idea what’s missing on the other side.
She cites a statement on the CDC’s media page telling journalists that “press officers are here to make sure your questions get answered by the best spokesperson for your story, within your deadline. CDC experts are working scientists and may not be available for interviews at all times. A press officer can help you find the best expert or spokesperson to answer your questions.”
The best expert or spokesperson according to whom?
“If the agency tells the press who the best spokesperson is, while not allowing you to talk to anyone else, they are controlling your news gathering,” Foxhall said. “Deciding who we speak to is massively going into the journalists’ job. That is authoritarianism.”
And yet, the problem doesn’t end there. Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information, has written extensively on PIOs and holds that employee gag policies are illegal violations of the First Amendment. He also holds that agencies are aware of this, and so the policies often exist informally, something everybody knows but nobody can document.
However, LoMonte offers a solution, as outlined in a legal paper published last fall:
“Journalists denied access to their desired government sources should be able to establish standing to challenge unconstitutional gag orders based on their history of success in the analogous context of challenging gag orders on trial participants.”
In other words, journalists can file lawsuits challenging these policies on their own, with or without an employee who may have been fired for speaking out.
It’s especially worrisome in the virus era given the contradictory messages emanating from the White House.
“When you think about a journalist who needs to talk to somebody at the CDC, the EPA or the Department of Health and Human Services, they really want to talk to a trained subject matter expert,” said LoMonte. “They don’t want to talk to somebody who has a degree in public relations. No knock on anyone with a PR degree, but we really need the benefit of somebody who is a subject matter expert in medicine and science. There’s no substitute for that.”
LoMonte notes that it’s not a partisan issue, with the Obama administration also rightly criticized for being overly controlling of employee speech. But the importance of free speech is magnified at times like this, when the difference between being well informed and not well informed could literally mean dying.
The good news, from LoMonte’s perspective, is that no matter what the Knight Institute’s lawsuit turns up, it can be a win for journalists and the public: If a written policy is found it’s likely to be unconstitutional. If a policy isn’t found then employees should be free to speak on their own terms.
“Any time you have an agency policy that tells people they are forbidden from talking to the media without permission, you have the makings of a First Amendment case,” he said. “There’s no constitutional support for gagging all of your workforce from speaking to the news media. Every single time an employee has challenged a gag order, they have prevailed.”
Haisten Willis is an Atlanta-based freelance journalist and a member of SPJ’s freedom of information committee. His byline has appeared in the Washington Post, U.S. News & World Report and the Atlanta Journal-Constitutio