As America turns a new page, it’s time to let employees speak again

“I’m not authorized to speak” is a phrase every journalist knows. As more public and private entities bar employees from speaking to the press, many reporters have learned not to even try talking with teachers, police, doctors or other front-line workers when news breaks. A recent experience showed me just how pervasive these policies have become.

Last summer, I found myself run-walking toward a downtown Atlanta protest, one of dozens held across the country in the wake of George Floyd’s death in Minnesota.

The assignment was for The Washington Post, and I was running late. With deadline approaching I needed to get interviews — fast. Coming to the end of a crosswalk I spotted a man standing on the corner in a bright blue ACLU vest. Figuring he’d make for a good subject, I approached him and introduced myself.

As we chatted I learned his name was Christopher Bruce, that he’s the political director for the ACLU of Georgia, and that he was working as a legal observer at the protests. Great! I thought, perfect interview.

There was just one thing, he told me: He’d have to get approval from the ACLU’s communications director. As a journalist I’ve heard the line dozens if not hundreds of times, as employee censorship policies have become ubiquitous despite the efforts of groups like the Society of Professional Journalists (SPJ) and despite the fact that they are illegal, according to an analysis by the University of Florida’s Frank LoMonte.

But at the ACLU? The nation’s premier defender of constitutional rights? This was shocking, and made me realize the adoption of such tactics is now near absolute. How could an organization which discourages Facebook from censoring offensive speech bar its own employees from giving a routine interview without oversight?

I still needed the interview though, so I said okay, figuring he’d just check in with whoever and call me back. We exchanged business cards and went our separate ways. An hour later, back in my truck, I got a call from ACLU of Georgia communications director Ana Maria Rosato.

Before letting me speak with Bruce, she ran through the branch’s press policies. “Everything goes through me,” she said, referring to any and all contact between employees and journalists. She also said that following the end of the conversation, “everything I say to you is off the record.” I mentioned offhand that Bruce and I exchanged business cards and was told he violated another policy in doing so. It wasn’t my intention to tattle, I’d just never heard of the tactic before.

All of this was rather frustrating to hear, particularly with deadline closer than ever.

I still needed the interview though.

She then dialed in Bruce — while remaining on the phone for the duration of the call. It’s impossible to say, but I felt he was watching his words quite closely with the communications director on the line, and it was then that I finally vowed not to include the interview in my dispatch and to go with some other folks I’d spoken with.

If you’re not a journalist, this story may surprise you. If you are, you’re probably nodding your head and relating the many times you’ve been through it yourself. That’s a problem. Journalists need to let readers know the hoops we’re jumping through in order to get interviews, not for our own sake, but for the sake of an informed American public and for the millions of employees who find their free speech rights trampled.

It’s an issue I track closely as a member of SPJ’s Freedom of Information Committee, and a few days later I shared the experience with fellow committee member Kathryn Foxhall, who is fanatic about censorship by communications officers. She suggested digging into the ACLU’s speech policies further (full disclosure: the offer included a small grant to pay for my time) and trying to get some of the group’s higher-ups on the phone.

Why is Foxhall fanatic? You can read this Washington Post piece to find out. The short version is she remembers a time when employees could speak to whoever they wanted, and as a science writer she’s alarmed at controls over the flow of information which literally may have cost lives as COVID-19 emerged last spring. I gladly accepted.

My initial research turned up exactly what you’d expect, which is that the American Civil Liberties Union considers itself an ironclad First Amendment advocate.

The history listed on its website mentions “free speech” four times and “First Amendment” three times. To illustrate its commitment, the history includes a 1978 case where the ACLU defended a Nazi group’s free speech rights to march through a Chicago suburb that was home to Holocaust survivors.

The ACLU of Georgia’s 2018 annual report includes the below.

Dr. King once stated: “We are now faced with the fact that tomorrow is today. We are confronted with the fierce urgency of now.” With his words in mind, we remain laser-focused on protecting voter rights and what we think of as the DNA of the ACLU — The First Amendment.

As a refresher, here is the text of the First Amendment.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

My next step was to try and interview ACLU of Georgia Executive Director Andrea Young. To the branch’s credit, the interview was set up right away. However, following protocol I called the communications director at interview time, who then separately called Young and looped us together. Regardless of the intent, the result of this procedure is that the journalist never receives contact information for the interviewee, and the interviewee never gets contact information for the journalist.

Young was polite and patient as she listed reasons for her branch’s press policies.

“We want our messages out in the media, and we work really hard to get the media to pay attention to the things that we are doing,” she said. “In order for that to happen, we have to communicate in a way that’s useful. We have to be clear. People need to be concise and we need to be focused. It’s different than just shooting the breeze with a friend on the phone.”

She said the policies are aimed at making sure the journalist finds the best person to speak with for their story, rather than preventing anyone from speaking, and described the communications director’s role as more about “directing traffic.”

I asked why ACLU of Georgia members are banned from giving members of the press their business cards.

“Not all media people are journalists,” Young said. “They don’t all have the ethical standards of journalists. And again, it’s to direct the flow through the communications department so people can get a response. It’s actually to speed up responses.”

As an example of how it could speed things up, she mentioned that an ACLU attorney may be in court when a journalist calls, but the communications director would be available. Of course, my experience was the opposite, with an on-the-spot interview becoming a scheduled one and significantly delayed.

If a staff member did give an interview without approval, Young said “we would remind them of the better practice.” She also added that while the communications director’s role is to connect phone calls she doesn’t necessarily listen in on them. However, Young said she understood how this could be used as an intimidation tactic.

I then mentioned that SPJ holds, and according to LoMonte’s analysis courts have agreed, that policies restricting who employees can speak with are illegal violations of the First Amendment. Young pointed out that the ACLU is a private organization and reiterated that she felt the Georgia branch’s policies are about facilitating accurate communication rather than hindering it.

When I asked if she agreed with SPJ’s position when it comes to public agencies, Young said yes.

The next step was to try the national ACLU. I fired off an email to executive director Anthony Romero and chief communications officer Rebecca Lowell Edwards asking for an interview with Romero about ACLU press policies.

A few days later I received an email from deputy chief communications officer Steve Smith offering to speak “on background,” meaning I could use the information but not his name. My response was that as a general best practice, and especially given the subject matter, all interviews would need to be on the record. He then agreed to an interview.

“Here at ACLU national we don’t have any press access policies,” he said. “We in the communications department want to know when interviews happen, ideally before, but afterward is also good. For things like protests and events, court hearings and things like that, interviews are going to happen on the spot… We don’t have any sort of written access policies at the ACLU.”

He also said that the ACLU’s communications staff do not sit in on interviews. Of course this surprised me, and I asked how many local branches had policies similar to those in Georgia.

“I don’t know what the ACLU of Georgia’s policies are,” Smith said. “State affiliates are all separate legal entities, they have their own budgets and boards of directors.”

Presumably, Georgia is not the only ACLU branch placing speech restrictions on its employees.

As with Young, I said that per LoMonte’s analysis courts have found policies restricting the speech of employees to be unconstitutional. He responded that the ACLU doesn’t take a position on speech policies at its local branches or those of other organizations, including public ones.

Both Young and Smith were complimentary of the press and seemed genuinely to have not considered SPJ’s position before.

This is perhaps the biggest problem of all.

Policies that tell employees who they can and cannot speak to under threat of punishment — this can’t be emphasized enough — are illegal violations of the United States Constitution. This will be true no matter how many organizations adopt them.

It may be illegal even for private employers like the ACLU. LoMonte, who directs the University of Florida’s Brechner Center for Freedom of Information, has extensively researched employee gag policies and concluded they are illegal even for non-government organizations.

In August 2017 the National Labor Relations Board ruled that two security company employees at a Chicago airport were illegally fired for speaking to the city’s two major newspapers. The policy violated federal labor laws, specifically the National Labor Relations Act. A federal district judge agreed, ordering their reinstatement and making their private employer, Universal Security, eliminate its rule prohibiting employees from speaking to the press.

In 2019 a private college, Loyola University Chicago, rescinded a policy requiring employees to forward media inquiries to the campus PR office under pressure from journalists, faculty members and free-speech organizations. These stakeholders understood the implications of such a policy and got it overturned without going to court.

What has built up over the years instead is a cultural norm, one which the press has been all too passive in accepting. Why? I believe there are several reasons. For one, there are fewer reporters and more public relations employees than ever, with six people now working in PR for every journalist. This makes employee speech restrictions much easier to implement and enforce.

A second reason is that journalists tend to be supremely proud of our work and the mission we fill informing the public, which can make it hard for us to admit when we may not have the full story. When millions of employees are barred from speaking to the press, that’s probably the case almost all of the time.

A third reason is deadlines. When I spoke to the ACLU of Georgia’s communications director after covering protests, there was less than an hour until the deadline to file my dispatch. That left no time for debates about gag policies and the First Amendment. I didn’t push back at all.

PR departments know all of this, and for proof we can simply look at their textbooks.

For example, take Bradford Fitch’s Media Relations Handbook for Government, Associations, Nonprofits, and Elected Officials. The book includes statements such as, “It must be made clear to all staff that they should deal with the media only when authorized by the public relations team.” A Capitol Hill chief of staff is quoted as telling employees, “If I ever read your name in the paper, it better be in the obituaries….Or it will be.”

Fitch also instructs PR people to ask reporters what they’re writing about and what information or interviews they’ve already compiled before any interviews take place. He then writes, “Most reporters will answer some or all of these questions in the initial call. They understand they need your cooperation to do their job, and the best way to get that is to cooperate with you.”

In other words, the strategy is to create a choke point through which all information flows, then use that as leverage to ensure control. As Fitch himself notes, “Reporters decry these closed-mouth operations, as they often result in only the sanitized, organizationally endorsed message being released to the public.” That’s true. But the issue isn’t that reporters complain, it’s that the truth is being suppressed and free speech rights are being violated. To paraphrase legendary Washington Post editor Ben Bradlee, if the press is the target, “the public is the victim.”

It is my sincere belief that the ACLU of Georgia and any other ACLU branches restricting the speech of their employees have not fully considered the wider First Amendment implications. When fully considered, I believe an organization like the ACLU, which has the First Amendment in its DNA, will not only rescind these policies but will join SPJ and other press organizations in denouncing them. But they must hear the message first.

SPJ is among many journalism and open government groups calling for change. We must keep talking about this issue, make the public aware of it and continue to fight for freedoms guaranteed to the press and to all American in the very first sentence of the U.S. Bill of Rights.