An unqualified ban on public employees granting media interviews, “especially when backed up by the threat of adverse personnel action, remains presumptively unconstitutional as a prior restraint on speech.” Frank D. LoMonte, Putting the ‘Public’ Back into Public Employment: A Roadmap for Challenging Prior Restraints That Prohibit Government Employees from Speaking to the News Media, 68(1) Kan. L. Rev. 1, 3 (2019). Such prior restraint impedes the free flow of information and ideas in dealing with matters of public concern. This undermines the principle of informed self-governance that the First Amendment exists to protect. See Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.”); see also Richmond Newspapers v. Virginia, 448 U.S. 555, 575 (1980) (freedom of speech and press “share a common core purpose of assuring freedom of communication on matters relating to the functioning of government”).
To be sure, the Supreme Court has determined that public employers have the right to control their employees’ speech when they are speaking pursuant to their official duties. Garcetti v. Ceballos, 547 U.S. 410, 421-22 (2006). But the Court subsequently clarified that this control applies only to speech that is “ordinarily within the scope of [the] employee’s duties, not [when] it merely concerns those duties.” Lane v. Franks, 573 U.S. 228, 240 (2014). As many — if not most — public employees have no official duty that requires or entails speaking to the media, their communication with members of the press falls outside of the strict employer control authorized by Garcetti.
Why Censoring Government Employees Matters:
Recent Examples
Public employers’ restrictions on their employees speaking to the press hinder the media’s ability to obtain information and relay it to the public. Unfortunately, public employer restrictions are increasingly prevalent. According to the Society of Professional Journalists, “three-quarters of reporters who cover federal agencies said they must get approval from public affairs officers before interviewing an agency employee”; and 40% of government public information officers who were surveyed said they have blocked specific reporters from talking to employees because of past unfavorable stories. Public Information Officers, Soc’y of Pro. Journalists (last visited April 8, 2021). Correspondingly, employees may feel they cannot speak up about a variety of issues, including disclosing vital public information, without risking adverse employment action.
For one example, in 2020 the U.S. Department of Justice (DOJ) began prohibiting immigration law judges (ILJs) from speaking publicly about issues related to their work. Priscilla Alvarez, Immigration Judges Accuse Justice Department of Muzzling Them, CNN (July 1, 2020, 10:55 AM). The DOJ’s Executive Office of Immigration Policy decreed that ILJs could not speak publicly on immigration policy or law, and required them to receive permission before speaking on any other policies. Id. The President of the National Association of Immigration Judges objected that this speech restriction prevents ILJs from doing part of their job, which is “to educate the public about the immigration courts and the role they play in society,” and “undermin[es] public understanding of and trust in the immigration courts in the process.” Julián Aguilar, Immigration Judges Sue Trump Administration Alleging Their Free Speech Rights Have Been Violated, Tex. Trib. (July 1, 2020, 12:00 CDT) Under the DOJ’s restriction, ILJs are also prohibited from speaking about COVID-19 and the effect it has had on “the immigration system and detained migrants.” Id. A union of immigration judges sued the DOJ, alleging its censorious policy violates their First Amendment rights. Alvarez, supra.
As a second example, employees of the Centers for Disease Control and Prevention (CDC) report being “muzzled” from speaking with the press during the COVID-19 pandemic under the Trump Administration. See Robert Kuznia, Curt Devine & Nick Valencia, ‘We’ve Been Muzzled’: CDC Sources Say White House Putting Politics Ahead of Science, CNN (May 20, 2020 10:58 AM). As such, the “nation’s leading public health experts” could not “talk directly and regularly to the American people.” Sheryl Gay Stolberg, Battered by Trump, the C.D.C.’s Director Faces Pressure to Speak Out, N.Y. Times (Oct. 10, 2020). Longtime, non-political agency scientists reportedly refused to speak on the record out of fear of government reprisal. See id.; Kuznia, supra. This chilling of public-employee speech undermined the CDC’s mission of educating and protecting the public during a worldwide pandemic. See Stolberg, supra. As CNN reported, the CDC sources felt that this censorship “worsened the effects of the crisis.” Kuznia, supra.
What About in Georgia?
State Agencies’ Policies on Employees Speaking to the Media
In Fall 2020, in order to explore whether Georgia’s state agencies are restraining their employees’ speech to the press, the First Amendment Clinic made Open Records Act requests to thirty-eight state agencies and the City of Atlanta using a standardized request letter. The letter requested: “All policies, rules, briefing statements, or written guidance (collectively, ‘agency materials’) related to agency employees communicating with the news media.” See Example Request Letter. The agencies were chosen based on budgetary size, status as clearly independent of other agencies, and/or the accessibility of the agency’s records request process. As necessary, the Clinic clarified the request or resubmitted the request to an online portal specific to the agency.
The Clinic received responses from thirty-seven of the thirty-eight agencies. About a quarter of the responses consisted of statements that there was no policy or that the policy was entirely informal. The remaining twenty-eight responses included documentation with formal policy information or employee guidance documents, which were then collated and compared to identify trends in employee speech restraints.
Two general categories of policies/guidance emerged: “strict” restraints and “discretionary” restraints on employees speaking with the press. A few state agencies exhibited a combination of the two, depending on the content of the information to be shared with the press, which we have placed in a third category of “blended” restraints.
Our findings are collected in this Chart. Below, we discuss each of the categories with illustrative examples and list the agencies within each category.
“Strict” Restraints (12 agencies)
We define “strict” restraints to mean policies or guidance that impose a bright-line communications barrier between the media and the agency’s employees. These agencies require that only the designated Communications Office (CO) respond to media requests for information, and that all other agency employees must refer such requests to the CO.
The Georgia Department of Corrections (DOC)’s “Media Relations” policy exemplifies strict restraints of employees’ ability to speak to the media. It states that dissemination of information about the DOC to the media will be distributed or authorized by its Public Affairs Office. Under this policy, no employee below the rank of “Assistant Commissioner” should speak to the media and should instead immediately report the media request to the Public Affairs Office. If an undesignated employee contacts the media without approval, they will be subject to “immediate disciplinary action.” The DOC’s policy also has specific rules governing communication with the media in various situations, including direct contact with media, random contact with media, press releases and conferences, emergency situations, and social media.
Another example of an agency with a “strict” restraint is the Georgia Department of Community Health, which employs three methods of control over employee speech to the media: (1) the agency’s public-facing website, (2) its “Style Guide” employee manual, and (3) guidance on the agency’s intranet. The agency’s website simply states that the agency’s Communications Office coordinates all media inquiries. The “Style Guide” further declares that “Communications is the agency’s first and only point of contact for the news media,” then provides a phone number that members of the media may call. The intranet, which is for agency employees only, provides that “the [Communications] Office handles all media and public relations for the Department,” and that “all external materials . . . must be reviewed and approved by Communications.” It then provides an option to “submit a Communication for review.”
The agencies that, according to our classification, impose “strict” restraints on employees’ speech to the media are:
- Department of Community Health, including State Health Benefit Plan
- Department of Corrections
- Department of Early Care & Learning
- Department of Education
- Employees’ Retirement System
- Division of Family & Children Services
- Financing & Investment Commission
- Department of Human Services
- Board of Pardons & Paroles
- Department of Public Health
- Department of Public Safety
- Public Service Commission
“Discretionary” Restraints (9 agencies)
We define “discretionary” restraint to mean policies or guidance where other employees besides the CO may speak with the media, but only once they’ve communicated with the CO. Usually, the policy requires the employees to get approval from the CO. In this way, the CO has the authority to decide when and what employees may say in each scenario. For example, Georgia’s Department of Community Supervision has a “discretionary” policy titled, “Communication with the Media, Public, and Elected Officials.” It states that “employees shall not respond to requests or inquiries from nor initiate contact with the media without prior authorization from the Director of External Affairs.”
However, there is a subsection of agencies with discretionary policies that are slightly more lenient in their requirements. These agencies require only that the employee notify the CO of a media request, but do not necessarily require that the employee get approval before responding. For example, Georgia’s Department of Agriculture (DOA)’s “Media and Communications Policy” states that “employees must immediately notify the Communications Division any time a request or inquiry of any kind is received from any news or media organization.” However, “any printed or digital material distributed to the public that is representative” of the DOA must get approval from the Communications Division prior to the distribution. Other information shared by DOA employees appears to only require notification.
“Discretionary” policies or guidance governing employees speaking with the media can be found in:
- City of Atlanta
- Department of Agriculture
- Department of Audits and Accounts
- Department of Behavioral Health & Development
- Department of Community Affairs
- Department of Driver Services
- Prosecuting Attorneys’ Council
- Student Finance Commission
- Department of Veterans Service
“Blended” Restraints (7 agencies)
Some Georgia state agencies have a blend of “strict” and “discretionary” policies, depending on the subject matter of the media inquiry. For example, the Georgia Department of State requires that all media requests be directed to, or authorized by, the Front Office/Press Office — seemingly a “strict” restraint. However, that policy also pre-authorizes employees “acting in their official position capacity in the performance of their assigned duties” to engage with media within the “scope defined by their respective departments” so long as it adheres to all Department of State policies and guidelines — a feature of “discretionary” media policies.
The greater number of “blended” policies have slightly tighter controls than the Department of State: they generally allow employees to speak if given authorization, but tightly control speech about certain sensitive subject matter, usually matters of criminal law. For example, the Department of Juvenile Justice’s policy allows employees to speak with prior approval except when the request comes from a government official or when it comes from the media and regards any of eighteen potential incident types. Another, simpler example is the Office of the Inspector General, which requires employees to keep confidential all restricted record information or information obtained in their official capacities.
The following agencies feature “blended” media policies:
- Department of Community Supervision
- Department of Corrections
- Department of Emergency Management & Homeland Security
- Office of the Inspector General
- Bureau of Investigation
- Department of Juvenile Justice
- Department of State
No Responsive Policies (9 agencies)
There are a number of Georgia state agencies that appear to have no policy, guidance, or other rule regarding employee contact with the media — or at least no policies or guidance that their respective Open Records Officers believed to be responsive to our requests. These include:
- State Accounting Office
- Office of the Attorney General (Department of Law)
- Department of Revenue
- University System of Georgia
- Department of the Treasurer
- Soil and Water Conservation Commission
- Department of Forestry
- Public Defender Council
- Tax Tribunal
Conclusion
If you have a concern that your governmental employer is restricting your speech on matters of public concern when your speech is not made pursuant to your official duties or job responsibilities, you may contact the First Amendment Clinic for consultation at: http://firstamendment.law.uga.edu/contact/.
By Julia Griffis (3L) and Taran Harmon-Walker (3L)
Last updated: May 4, 2021
