Study documents commonplace and illegal government policies restricting employee communication with journalists

The anonymous whistleblower who kicked off the Ukraine impeachment investigation has renewed public debate about the role of such sources in a democracy, and has highlighted how government agencies often try to control leaks. Agencies throughout the nation have passed broad policies that try to prevent public employees from speaking to journalists without approval, even though federal courts have repeatedly found such policies unconstitutional.

A new report from the Brechner Center for Freedom of Information at the University of Florida documents nearly two dozen cases in which courts have struck down policies in local, state and federal government offices that forbid employees from freely communicating with the press.

“There’s widespread ignorance that public-relations offices have no legal authority to forbid public employees from speaking to the news media," Frank D. LoMonte, director of the center and lead author of the report, said in an introduction. "Whether it’s called a rule or a policy or a handbook, the result has been the same every time an employee has challenged a requirement to get approval before speaking to journalists: The employee always wins and the agency always loses."

"Policies that have been struck down as unconstitutional include a Michigan fire department’s regulation providing that only the fire chief could 'release facts regarding fire department matters, fires or other emergencies to the news media,' and a Connecticut police agency’s policy forbidding officers from making 'official comments relative to department policy' to members of the press or public without approval," says the introduction.

The report explains where the courts tend to draw the line these days for public employees' free speech and provides strategies and best practices journalists can use when challenging gag rules. 

Paper gives police copy of letter alleging laxity about weapons at school, but honors request for anonymity

A newspaper in a Kentucky county that had one of the first mass school shootings gave police a letter it received from a student alleging lax enforcement of rules about weapons on campus, but refused to identify the student, who asked to remain anyonmous. The Paducah Sun gave the McCracken County Sheriff's Department a copy of the letter about Reidland High School on Monday "after a reporter called the department . . . although the name of the author was not included," the paper reported today in a non-bylined story.

Reidland High School

The story quoted from the letter: “Someone who sits in class with us, who has brought weapons twice ... has yet to be punished for anything.” It "does not mention the person’s name," the story says. "It adds that the person has plotted attack sites around the school area and asks why school administrators are afraid to enforce school rules. The letter does not contain any specific threats of violence, just the student’s observations."

After being told about the letter, police and school officials decided to close the school and the attached Reidland Middle School today. “School will not be in session until the threat has been adequately investigated,” Sheriff Jon Hayden wrote on his department's Facebook page. The paper's story is here; the letter is here. A story by WPSD-TV, also owned by Paducah-based Paxton Media Group, is here.

Reidland (A) and Heath (B) schools (Google map)

On Dec. 1, 1997, a student at a high school on the other side of Paducah fired on a group of students at a prayer meeting, killing three and injuring five. He pleaded guilty but mentally ill and was given life in prison with the possibility of parole in 25 years. "A federal appeals court panel is considering whether Heath High School gunman Michael Carneal should be allowed to take back his guilty plea and get a trial," Angela Hatton of WKMS in Murray reports.

UPDATE, Dec. 19: Today's Sun has a copy of the letter, a story about an unnamed teacher who says she prompted it, and a column from Editor Jim Paxton explaining the paper's handling of the matter: "Newspapers by statute in Kentucky have a right to protect the identity of their sources, just as law enforcement agencies do. Absent that ability, we would never be able to develop the type of information that is reported in today’s lead story about the school threat issue, information we believe most readers will agree sorely needs to see the light of day." Paxton said the paper asked the student's parents if he could speak to the sheriff's department if his confidentiality was protected. "The parents expressed reservations, noting their son is a juvenile. We advised investigators of the parents’ position, but said we would continue to try to broker a resolution that would allow investigators to speak to the student directly."

Paxton says a Monday night press release from the sheriff's department "was at best disingenuous and at worst defamatory. The release was crafted in such a way as to make it appear that the newspaper had received a letter from an individual who had directly threatened the high school and we were refusing to tell authorities his name citing 'journalistic ethics.' The release didn’t say that specifically, but it was clearly intended to be interpreted that way, and it was." That release appeared to be the basis of the TV station's report. The county school superintendent sent a similar message to school-district employees.

"The effect was as officials planned," Paxton writes. "People called to cancel subscriptions. Advertisers called threatening to pull out of our newspaper. Profane comments poured onto our Facebook page." And though the paper's First Amendment lawyer said it had an absolute right to withhold the student's name, "we continued working to broker a resolution, and later that morning, our source, his parents, and an adult employee of the school system who we learned was our source’s source agreed to meet here at the newspaper with Sheriff Hayden. While we were in the process of setting that meeting up, a sheriff’s detective showed up in our offices with grand jury subpoenas demanding that Executive Editor Duke Conover and yours truly appear in less than two hours before a grand jury along with the letter disclosing the identity of our source. (In what can only be described as a show of belligerence, the sheriff’s detective undertook to 'read' the subpoena to Conover in Conover’s office while Conover was engaged in a phone call. First, that’s hard to do, since subpoenas mostly have boxes and checkmarks on them. Second, legally, it has no effect. Subpoenas are simply supposed to be delivered, and sheriff’s deputies are well aware of that.)" Paxton, a lawyer, writes that the subpoenas were illegal and "purely an effort to intimidate a news organization. We doubt Kentucky’s attorney discipline board will smile on this exercise."

In the end, Paxton reports, "Our source and others familiar with this matter did meet in our offices with the sheriff, and as today’s lead story indicates, much was learned. Interestingly, some of what was learned was very unflattering to school administrators and others in the school system. Meanwhile, we as a newspaper remain puzzled by the scorched earth approach taken by local officials involved here." (Read more; subscription may be required)

Sheriff Hayden issued a press release Tuesday night saying that the alleged threat was a misinterpretation of two students' conversation about explosions in a video game, which had been investigated and cleared. "Had investigators been provided contact information sooner, this incident could have been cleared up much quicker," Hayden said.

West Virginia enacts first statute for reporter's privilege; Arkansas expands its law to TV, online

A pair of states have strengthened the privilege afforded to journalists for protecting confidential sources. This week West Virginia Gov. Earl Ray Tomblin signed the state's shield bill into law, making West Virginia the 40th state to provide statutory protection for subpoenaed reporters. Nine other states have protection in case law, as West Virginia already did. Only Wyoming lacks the protection.

"The measure provides journalists with a nearly absolute reporter’s privilege to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings," Kristen Rasmussen of the Reporters Committee for Freedom of the Press writes. Disclosure of that information can be compelled only if it is "necessary to prevent imminent death, serious bodily injury or unjust incarceration." West Virginia's law defines a reporter as "someone who gathers and disseminates news to the public for a portion of the person’s livelihood, suggesting that freelance journalists would be protected, while unpaid bloggers would not." Presumably, though, bloggers who makle money from advertising would be covered. The law specifically covers unpaid student journalists. (Read more)

Arkansas first passed its shield law in 1937, when television was still pretty much in the laboratory. Last month, state lawmakers amended the law to protect TV and online reporters. The bill was approved unanimously in the House and the Senate, and the law will go into effect 90 days after the legislature officially adjourns. Michael Tilley, co-owner and editor of The City Wire, an online publication, contacted a state senator to consider amending the law. He told Kacey Dreamer of the Reporters Committee that after consulting with lawyers and legislators they decided "It never hurts to take the gray area out of the law." (Read more)

Journalism group urges Senate to move ahead with shield law

The U.S. Senate's delay of a federal shield law is hurting the American public, says the Society of Professional Journalists. Delays in passing S. 448, the Free Flow of Information Act, "continue to place U.S. journalists at risk of heavy civil fines and imprisonment," SPJ writes in a news release. "That leads to reluctance to investigate stories and ultimately is a disservice to the American public and an open, democratic society." The bill would prohibit the enforcement of federal subpoenas against reporters who refuse to identify their confidential sources in certain circumstances.

"We are rapidly closing in on the end of this congressional session, and we remind the senators that U.S. journalists have an expectation that this bill will be resolved," SPJ President Kevin Z. Smith said in the release. "After years of advocacy for this bill, we are close to a resolution, and we have hammered out what should be the last points of contention. We strongly encourage senators to allow a vote." He continued, "Delaying or killing this bill isn’t just a blow to journalists covering the federal government; it’s a blow to the American people who will see fewer stories about their government. Unprotected sources don’t generally share information with the media. Killing this bill is a win for secrecy in government." (Read more)

Kansas paper fires reporter who took a stand on her own to protect a confidential source

In Dodge City, Kan., the home of Marshal Dillon and Old West characters fictional and factual, reporter Claire O’Brien has paid the price for being a sort of journalistic cowboy in a judicial shootout over confidential sources.

O'Brien, a reporter for the 9,700-circulation Dodge City Daily Globe, was fired Friday, The Associated Press reports. O'Brien initially refused to appear in court when subpoenaed to testify about a confidential source and later relented when her source revealed himself. She says the firing was retaliation for comments she made to news media about the Globe refusing to support her stand. The newspaper says it doesn't comment on personnel issues.

You can read our previous report about O'Brien's comments and legal battle here. O'Brien told AP after she testified, she was forced to sign some disciplinary forms, including one claiming she had defamed GateHouse Media, owner of the Globe. She also said the locks on the newspaper building had been changed after the hearing, she was the only reporter not given a key, and a manager was required to be present whenever she was in the building. (Read more)

Dodge City reporter found in contempt agrees to testify after her source reveals himself

A Kansas reporter has agreed to appear in court after her confidential source revealed himself following a judge's contempt ruling against the reporter. Dodge City Daily Globe reporter Clair O'Brien was subpoenaed by Ford County Attorney Terry Malone to reveal a confidential source, but O'Brien refused to appear in court Friday, leading District Judge Daniel Love to issue a contempt ruling and her newspaper to forsake her. After her source revealed himself to Malone this weekend, O'Brien showed up for court Monday and apologized for her decision to ignore the subpoena. (See previous report on the subpoena)

"He was moved by his own moral convictions — the only thing that could have evoked those was me demonstrating my moral convictions to that extent ... when he saw I was willing to pay the whole price," O'Brien told The Associated Press. "Hopefully it will show the Legislature how hopelessly tangled this situation can become without a clear statute showing the way." Doug Anstaett, executive director of the Kansas Press Association, told AP some state legislators have approached his group for help making Kansas the 36th state with a shield law. (Read more)

Dodge City reporter ignores subpoena to testify, loses support of newspaper

A Kansas reporter, subpoenaed to testify about a confidential source, has been held in contempt for not appearing in court Wednesday. Clair O'Brien of the Dodge City Daily Globe will be fined $1,000 per day until she appears in court, James Carlson of The Topeka Capital-Journal reports. O'Brien told Carlson that attorneys for GateHouse Media, which owns the Globe, wouldn't pay for her legal representation unless she answered the prosecutor's questions under oath, and have disrupted her attempts to seek help from a national journalism group. The newspaper and O'Brien had tried and failed to get the subpoena quashed.

GateHouse told Carlson it hadn't decided whether to provide legal counsel for O'Brien to continue fighting the subpoena and denies it has blocked her from seeking outside counsel. The company did have an attorney in court Wednesday, but told Carlson that O'Brien has "taken steps to separate herself from the company, including firing her personal attorney paid for by GateHouse." (Read our previous reports on the subject here and here)


"What she did was really stick a thumb in the judge's eye today," Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, who has been speaking with O'Brien for more than a week, told Carlson. "Even if you're not going to answer questions, you still have to go to court." An editor with the Globe and the Kansas Press Association also expressed disapproval. "I feel like I'm being battered by forces more powerful than I," O'Brien told Carlson. "I don't feel that I have the right to make my own choices." (Read more)

Kansas reporter must testify in murder trial; expected to be asked to reveal confidential source

Last month we reported the Kansas Supreme Court had granted Dodge City Daily Globe reporter Clair O'Brien a stay of a lower-court order preventing her from being forced to reveal a confidential source. Now the court has refused to quash a subpoena ordering O'Brien to testify about her jailhouse interview with murder suspect Samuel Bonilla, Editor and Publisher reports. Ford County Attorney Terry Malone issued the subpoena just days after the initial stay was granted. (Read more)

Kansas reporter gets temporary reprieve from order directing her to testify, reveal sources

UPDATE 1/22: Despite the court's Tuesday ruling, O'Brien was subpoenaed on Wednesday by Malone as a potential witness in the murder trial. "This subpoena is basically a blatant attempt by the county attorney and the judge to do an end run-around the Supreme Court's stay," O'Brien told the Associated Press. Malone said the subpoena was normal for any potential witness in a trial and had nothing to do with the temporary stay. (Read more)

Yesterday, the Kansas State Supreme Court granted a Dodge City Globe reporter's request to temporarily stay an order requiring her to reveal a confidential source to Ford County prosecutors. Clair O'Brien was scheduled to appear today before an inquisition at which prosecutors would force her to source's identity and content of unpublished notes regarding her interview with Samuel Bonilla, who is charged with second-degree murder in a Labor Day shooting death, The Associated Press reports.

"The newspaper has challenged the subpoena on the grounds that forcing O'Brien to testify would violate her First Amendment rights and hurt her ability to gather news," AP reports. O'Brien maintains she has already told Ford County Attorney Terry Malone what Bonilla told her during the jailhouse interview, when she called the prosecutor for comment. Malone also wants O'Brien to reveal confidential sources who said "one of the victims had 'a base of support that is well-known for its anti-Hispanic beliefs' and has a supply of semiautomatic weapons," AP reports.

O'Brien told AP, "It is not so much about whether I win, but whether the government is allowed to have so much influence on the ability of the press to report without fear or intimidation." (Read more)

Obama administration objects to shield-law bill

The Obama administration has told senators that it opposes the current version of the proposed news-media shield law, and does not want to require prosecutors to exhaust all available methods before subpoenaing reporters in instances the president says could cause significant harm to national security, Charlie Savage of The New York Times reports. The White House also wants judges to "be deferential to executive branch assertions about whether a leak caused or was likely to cause such harm."

“The White House’s opposition to the fundamental essence of this bill is an unexpected and significant setback. It will make it hard to pass this legislation,” said a sponsor of the bill, Sen. Charles E. Schumer, D-N.Y.

The Obama administration has taken no official, public stance on the bill, but the White House voiced its opinion to lawmakers after Obama, who co-sponsored a shield bill as a senator, met with several of his top national security advisers, Savage reports. “If the president wants to veto it, let him veto it,” co-sponsor Sen. Arlen Specter, D-Pa., told Savage. “I think it is different for the president to veto a bill than simply to pass the word from his subordinates to my subordinates that he doesn’t like the bill.” (Read more)

UPDATE, Oct. 2: The Society of Professional Journalists voiced "outrage" at the adminstration in a press release, saying the Obama version would "offer little to no protection for reporters who refuse to disclose confidential sources. SPJ strongly encourages the administration to reconsider its position and focus on the importance of a federal shield law and how vital it is to the existence of a free press and an informed citizenry. SPJ also encourages all journalists to support the legislation by continuing to contact lawmakers and voice their support for a strong and meaningful federal shield law."

Deputy poses as big-time reporter, gets small-town scribe to give number of source, who is arrested

"A sheriff's deputy in North Carolina posed as a Newsweek reporter to coax an anonymous source out of a local newspaper journalist. And it worked," reports Kathleen Cullinan of the Reporters Committee for Freedom of the Press.

Thinking he was simply helping a fellow reporter from a larger news organization, a common favor performed by rural journalists, reporter Lindell Kay of The Daily News in Jacksonville gave the deputy the source's telephone number. Before doing that, Kay "called a source and told him about the request," the newspaper reported. "With the source's permission, Kay provided a phone number to the man he thought was a Newsweek reporter." Daily News Publisher Elliott Potter said Kay did not provide the source's name or any other identifying information.

The "favor" led to the arrest of Robert Sharpe, an intern for the district attorney's office, who is charged with embezzlement and larceny, "accused of offering to sell the undercover deputy confidential records from a 6,000-page file he'd been told to photocopy in the case of Cpl. Cesar Laurean. Laurean was tracked down to Mexico earlier this year and is charged with killing a pregnant Marine whose burned remains were found in North Carolina," Cullinan writes. "Sharpe has now identified himself to the media as a confidential source for The Daily News." (Read more)

Sharpe told Laura Vesco of WNCT, “I’m very disappointed with the Jacksonville Daily News. I’m supposed to be a confidential source. They screwed me over and offered no help or assistance afterwards. I put my trust in this organization.” The Onslow County Sheriff's Department "later asked Kay to reveal information about his sources, and he refused, citing North Carolina's 'shield law,' which gives news reporters the right to refuse to testify about news sources," Jennifer Hlad writes for The Daily News. The 19,700-circulation paper is one of six North Carolina dailies owned by Freedom Communications.