OpEd | Whistleblowers, sources and the constitution


Throughout the United States, government agencies are unconstitutionally enforcing restrictive policies that are negatively affecting the public’s access to information.

First Amendment rights allow public employees to speak about work-related matters without the permission of their superiors. However, many employees have been informed otherwise.

Frequently, agencies will inform their employees that all media requests should be filtered through public relations offices and other gatekeepers.

Students and faculty from the Brechner Center for Freedom of Information, located at the University of Florida in the College of Journalism and Communications, investigated this issue after receiving multiple complaints from news organizations across the country.

Director of the Brechner Center Frank LoMonte was the main author of a recently issued report on workplaces forbidding public employees from speaking to the news media without the approval of their superiors – even though federal courts have declared these policies unconstitutional.

The report, “The First Amendment and Public Employees’ Right to Speak to the Media,” documented 20 court cases that struck down policies that restrained employees from discussing work-related matters without permission.

The research team studied cases from as early as the 1940s. Prior to 1946, a New York City fire department policy regulated firefighters from speaking with the media. The firefighters had to get a written approval from their chief before appearing in a newspaper or magazine.

The policy was struck down as unconstitutional — but it was only the beginning.

In more recent cases, a federal appeals court in Texas overturned a sheriff’s policy against unauthorized public statements, and an appeals court in New York invalidated a social service agency’s ban on releasing information to the media regarding any policies or activities of the agency.

In Connecticut, a federal judge struck down a highway patrol policy. The rule had forbidden troopers from making “official comments relative to department policy” to the media without supervisory approval.

However, despite the many victories against the policies, there are still agencies that continue to restrict employees from free speech at the federal, state and local levels.

The quality of news stories suffers when journalists are prohibited from speaking with expert sources regarding specific topics, the report said.

LoMonte said there is a widespread lack of understanding that public employees have a constitutional right to speak with the media and, in fact, that public relations offices have no legal authority to forbid public employees from speaking to anyone in the news media.

Generally, a restrictive rule becomes word of mouth and the restrictions take many forms, he said.

“Often, the policies are phrased in the form of instructions to journalists rather than to employees, making it uncertain whether the employer believes that granting an unauthorized interview is punishable misconduct by the employee,” the report said.

Some restrictions are in employment contracts and handbooks, but some are merely in memos circulated by government public-relations offices throughout the place of employment, the report said.

“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,” he said.

However, it is legal for government agencies to tell their employees to keep confidential information about the company from the media.

“A narrowly drawn confidentiality policy should be all that an agency needs to protect its legitimate interests. Protecting the image or reputation of an agency is not a sufficiently compelling justification to override employees’ First Amendment rights.”

Tori Whidden is a research associate at Brechner Center for Freedom of Information, College of Journalism and Communications, University of Florida

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