Public employees have the right to speak to the press without going through the boss, but workplace gag orders continue to violate their freedom of speech, says a report from The Brechner Center for Freedom of Information, a nonprofit educational center.
The findings could have particular implications for health care journalists, the center’s director says.
Federal, state or local agencies often impose policies that restrict an employee’s ability to speak with reporters. In a report released in October that examines employees’ First Amendment rights, the center urges news organizations to challenge those rules.
“It’s not legal for a public agency to tell its employees they are forbidden from speaking to the media,” said Frank LoMonte, Brechner Center director and a journalism professor at the University of Florida. “And if you encounter a policy like that, you should know that the agency is breaking the law.”
Gag orders become a problem when reporters aren’t able to speak with experts in the field. Journalists then have to rely on statements from public relations professionals, which typically provide less detail and nuance than could be obtained from an interview with the source.
One of the areas where people regularly complain they can’t get access to experts is in the health and medical fields, LoMonte said.
For example, the Georgia Department of Public Health tells its employees not to respond to reporters’ requests “in any capacity” and requires them to “immediately transfer any journalist’s call to the department’s media relations manager,” according to the report.
“It is never satisfactory for journalists to get stuck with a press release in lieu of an interview, but it is especially inadequate when you need a medical expert,” LoMonte said.
Felice J. Freyer, vice president of the Association of Health Care Journalists and chair of its Right to Know committee, said that health reporters, like all journalists, often have difficulty accessing experts.
But it’s especially important when covering health, because the issues are oftentimes very technical.
“You need the people who are actually doing the research, who have the advanced degrees, who understand the issues to get on the phone and explain that to you,” Freyer said. “Because a lot can get lost in translation if you have to go through an intermediary.”
A government employer can certainly stop its employees from sharing confidential information and from incorrectly claiming to speak on behalf of the agency. However, refusing to allow employees to speak with the press as a means of protecting the agency’s reputation or image won’t be enough to defend ignoring the employees’ rights under the First Amendment, the report says.
LoMonte said journalists are often told that nobody is allowed to talk, but he recommends checking to see if such a restriction is the agency’s formal policy or just a rumor.
That’s not to say that government public affairs offices don’t ever serve a valuable purpose — they do. They can help connect journalists with the right expert, or encourage employees who aren’t comfortable giving interviews and need coaching.
The key takeaway? Even though policies that require government employees to get approval before talking with the press are commonplace and largely enforced, the Brechner Center found that “no such policy has ever survived a constitutional challenge.”