Journalist scores win in lawsuit over public employee gag rule – Isthmus

Brittany Hailer learned of the death of Daniel Pastorek, an inmate in the Allegheny County Jail, while reading her local paper. “Mr. Pastorek’s death was a three-sentence paragraph in the Pittsburgh Post-Gazette,” Hailer tells me in a phone interview from her home in Pittsburgh. She says she was shocked an inmate death would receive such scant coverage. 

At the time Hailer was the managing editor at the Pittsburgh Current, an alt-weekly. She had also previously taught creative writing at the jail. “I felt naive,” she says. “It didn’t occur to me that my students could not survive their incarceration.”

In December 2020, a month after Pastorek’s death, Hailer filed a public records request for the autopsy report. She was turned down and the matter would later be litigated. 

As she continued to focus her reporting almost exclusively on the county jail, Hailer began getting calls from inmates about other deaths and conditions at the facility, including insufficient COVID protocols. Employees started to call as well. 

“Eventually my phone number ended up on a white board in the basement at the jail,” she says. “I was getting calls from inmates all day long from the jail during COVID.” 

She would soon discover that employees were prohibited by jail policy from talking to the press. But they would often tell her things that the jail had not made public, including the deaths of two more inmates. “We broke the news,” she says. 

Hailer says it was an “incongruent place to exist” as a journalist. “I know these things that the public doesn’t know. The public is paying for this institution. Their loved ones are living in this institution. And I’m having conversations that aren’t allowed to be in the public sphere and that seems unfair to me.”

In August 2023 Hailer filed a lawsuit against the Allegheny County Jail for its policies prohibiting staff from speaking to the media about the jail without administrative approval. She was represented by The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press. It is believed to be the first time a journalist has challenged a gag order, though similar lawsuits brought by employees and unions in the past have been successful. 

The lawsuit notes that the jail over the last three years experienced a death rate twice the national average of similar-sized jails and that there was a serious shortage of correctional officers and medical personnel that “put both incarcerated persons and jail staff at risk.” 

Hailer’s suit alleged, among other things, that the “gag rules’ content-based prohibitions against unauthorized communications with the press violate the First Amendment rights of jail employees and contractors. They also violate plaintiff’s First Amendment right to gather news and receive information from otherwise willing speakers.” 

The complaint claimed Hailer was harmed by the rules by “depriving her of on-the-record sources who could and would provide information essential to her reporting.” The rules also “cause substantial delay” to her investigation and publication of newsworthy events inside the jail. 

While the county initially denied the allegations, the parties settled in April. Per the agreement, the county agreed to revise its policies to reflect that its employees and contractors “have constitutional rights to speak on matters of public concern when acting as private citizens and not purporting to represent the views of the [county jail].”

Ashanti Blaize-Hopkins, national president of the Society of Professional Journalists, said in a statement that the settlement is of “historic importance.”

“Gag rules are being adopted in all kinds of federal, state and local agencies, from congressional offices to schools and police departments. The settlement shows journalists that they can fight these widespread restrictions — and why they should.”

The Society of Professional Journalists, which has been trying to bring attention to the issue of gag orders for more than a decade, sponsored seven surveys since 2012 by Carolyn Carlson, a retired journalism professor and researcher, to gauge how extensive the controls are. Among the findings, according to a summary by the group: “Over half of political and general assignment reporters at the state and local levels said interviews must be approved at least most of the time. The majority of those reporters said officials monitor interviews at least some of the time. A majority also said agencies or [public information officers] have prohibited them from interviewing employees, at least some of the time.” 

In two 2014 surveys, three-fourths of education writers as well as reporters who cover local and state government, police and courts, agreed with this statement: “The public is not getting all the information it needs because of barriers agencies are imposing on journalists’ reporting practices.”

Public information officers proliferate in all levels of government in Wisconsin, often acting as gate keepers and maintaining tight control over access to information. Employees largely know — through an unofficial understanding if not official policy — that they are supposed to direct reporters’ queries to the PIO and not speak directly to journalists.

Kathryn Foxhall, a retired health reporter, is the point person at SPJ on media censorship issues. When staffers with expertise in public agencies are not allowed to talk to media, she says, “We are in trouble with knowing where the problems are in our society.”

Foxhall credits the legal analysis done by Frank LoMonte, a First Amendment attorney and former director of The Brechner Center for Freedom of Information, for providing a roadmap for Hailey’s lawsuit. In a 2021 article in the Kansas Law Journal, LoMonte wrote that “It is accepted almost as a self-evident article of faith that federal, state, and local agencies can prohibit unapproved interactions between employees and the news media. But that assumption rests on an aggressive interpretation of the scope of employer authority in the public sector, one that is irreconcilable with First Amendment doctrine, as well as with sound governance principles in a participatory democracy.” 

He notes that for decades public employees have successfully challenged blanket gag orders and overturned disciplinary actions for “unapproved interviewing.” Journalists denied access to government sources, he adds, should likewise “be able to establish standing to challenge unconstitutional gag orders.”

In an October 2023 online discussion on Hailey’s lawsuit, LoMonte acknowledged that allowing employees to talk to reporters without permission from their higher-ups can be a messy affair. “It is undoubtedly true that it is more efficient for government agencies to run without regard for the First Amendment. No one would dispute that.”

But, he added, “the whole point of the First Amendment is to allow people to criticize, challenge and question government, so when people say the inability to restrict our employees’ speech is interfering with the efficient functioning of the agency it’s exactly backwards. The functioning of the agency has to work around the speech because the speech is the thing that’s constitutionally protected, not the efficiency of the agency.”

In late May, following Hailer’s settlement, SPJ issued “a call to action for journalists to fight government restrictions on employee speech rights.”

“Consider similar legal action; use the case for discussions and editorials opposing such speech restrictions; and educate the public about the dangers of such censorship,” the group urged. 

Shortly after Hailer started looking into issues at the Allegheny County Jail, she and colleague Jody Diperna led the transition of the Current to the Pittsburgh Institute for Nonprofit Journalism. It’s been an extremely busy three years for Hailer. “I created a nonprofit, got married, had a baby, got a Pulitzer grant, won awards, filed a suit, won a settlement.” 

Now she says she’s hoping for some stability. She recently started working for the Marshall Project and will soon move to Cleveland. The Pittsburgh Institute for Nonprofit Journalism will close. Says Hailer: “I wanted to do less fundraising and more reporting.” 

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