“There was the official story and then there was everything else,” the former editor of the Nation’s Health, an industry publication, told me. “We took this for granted.”
Foxhall watched with dismay as that openness disintegrated radically over the past two decades. Federal agencies, including the CDC, began to require media inquiries to go through a public information officer. Direct contact was minimized and tightly monitored. Interviews might take place with a public-relations “minder” present.
When the coronavirus pandemic arrived, the situation got much worse.
Suddenly, the filter between journalists and experts became even more opaque — and much more politicized. Who got to speak publicly, including to the news media, was controlled by Vice President Pence’s office after he was put in charge of the administration’s pandemic response.
The new restrictions are dangerous, said Anna Diakun, staff attorney with the Knight First Amendment Institute at Columbia University, which this month sued the CDC for the release of records about White House and CDC policies that may keep the agency’s employees from speaking to the press and public.
“The White House is promoting inaccurate and misleading claims about the pandemic, even as it is restricting CDC employees from speaking to the press and the public,” she said.
She told me what’s happening amounts to a “gag order” on the very experts that the public needs to hear from directly. And it may be a violation of constitutionally protected free speech.
While conflicting information about the pandemic has made expert opinion especially crucial right now, the underlying free-speech issue has been building for a long time.
“This problem predates President Trump and the epidemic by 20 years,” Foxhall said. And she’s been battling it for years, working with the Society of Professional Journalists to survey journalists about the restrictive practices they have grown accustomed to — and, in her view, have failed to fight back against strongly enough.
Journalists work around these constraints instead of challenging them, she believes, and it’s the public that loses out because the press can no longer get the full picture of what’s happening inside federal agencies.
“It’s like fishing over a 25-foot wall: We don’t know the character of the ocean on the other side,” she said.
I talked about the broader free-speech issues with Frank LoMonte, media law professor and director of the Brechner Center for Freedom of Information at the University of Florida. Like Foxhall, LoMonte believes these times demand more pushback against free-speech restrictions.
“There’s a widespread misperception that you check all your free-speech rights at the door when you take a job,” LoMonte said, talking about government workers as well as those employed by private corporations. But the courts have said that’s not true: Citizens often have the right to speak out, particularly about working conditions.
A recent case in Maine makes the point: An employee of a private hospital was fired after she criticized her employer in a letter to the editor of the local paper. But when she took it to court, an administrative law judge called her firing an unfair labor practice and ordered her reinstated.
When the hospital appealed, the National Labor Relations Board, for the most part, backed up the local judge and the employee. (If public statements are made in an effort to improve working conditions, and these were found to be, they are protected speech, the board found. It’s worth noting that even an NLRB now filled with Trump appointees saw the wisdom of this decision.)
LoMonte found the outcome encouraging. The underlying issues are certainly germane right now when doctors and nurses are getting fired for talking about the lack of personal protective equipment, and when scientists need a political office’s approval to share their expert views.
But even apart from the pandemic, LoMonte urges employees to “be skeptical consumers” of the supposedly ironclad rules in their workplaces that forbid posting on social media or speaking to reporters.
“They’re like an unwritten whispering campaign that has taken on the force of law,” he said. Sometimes the rules aren’t as strict as employers may lead them to believe, and sometimes, the rules won’t hold up legally.
He likens our collective shrug over speech restrictions in the workplace to the way drivers consistently ignore a 55-mph speed limit and cruise along at 70.
“The fact that it’s well-accepted doesn’t make it legal, it just makes it common,” he said. LoMonte’s article in the Kansas Law Review last year analyzed dozens of cases from the Supreme Court and other federal courts, and concluded that, for government employees, “wholesale prohibitions on unapproved contact with journalists or with the general public, have long been recognized as unconstitutional.” It offers a road map for challenging those restrictions.
In her soon-to-be-published book, “Dare to Speak: Defending Free Speech for All,” Suzanne Nossel, chief executive of PEN America, a free-speech advocacy nonprofit, calls for a citizens’ movement to safeguard free speech from “government, the tech platforms, or the censorious outrage of others.” It couldn’t be more timely.
We’re now at a moment when experts must be free to share their knowledge and front-line workers must be free to tell their stories without being muzzled or threatened — and certainly without being fired.
It’s no exaggeration to say that lives depend on it.
READ MORE by Margaret Sullivan:
For more by Margaret Sullivan visit wapo.st/sullivan