Knight First Amendment Institute Sues The CDC For Failing To Provide Details Of Its Media Gag Order

from the silence-is-a-bad-idea dept

We've talked quite a bit about the importance of clear and transparent government during the COVID-19 pandemic, and how China's (ongoing) refusal to allow for people to speak out almost certainly contributed to the pandemic becoming even worse. And now the same situation has been showing up across the US as well. We've talked about hospitals firing doctors and nurses for speaking out about supply shortages, and now there's news that the US Navy fired the captain of the USS Theodore Roosevelt, Brett Crozier, after he sent his bosses a letter pleading for help as COVID-19 was spreading throughout his crew. Rather than recognize that he was pleading for help, they fired him... because his letter got out to the media and it made them look bad.

The Navy fired the captain of the USS Theodore Roosevelt on Thursday, four days after he pleaded for help as the coronavirus ravaged his crew, the Navy announced.

Acting Navy Secretary Thomas Modly announced that Navy Capt. Brett Crozier was relieved for loss of confidence.

"I just know that he exercised extremely poor judgment," Modly said.

But, perhaps the worst of all appears to be the gag order on actual infectious disease experts within the US government. Back in late February, when VP Mike Pence was first put officially in charge of responding to the COVID-19 threat, it was quickly reported that the White House had put in place a media gag order on all government officials, saying that all communication had to go through Pence's office. Indeed, various media appearances were cancelled by top CDC officials.

In response to this, the Knight First Amendment Institute at Columbia had sent a detailed FOIA request asking for any records regarding policies and procedures governing public communications by CDC employees and contractors, as well as a variety of related items, including instructions sent by the CDC's Public Affairs office. Having not received a response, the Knight Institute has now sued the CDC demanding it turn over the information as soon as possible. Given the situation, you can see why this might be pretty damn urgent.

We are in the midst of a global pandemic. The novel coronavirus—and the disease that it causes, COVID-19—has spread to all fifty states. According to the Johns Hopkins Coronavirus Resource Center, as of April 2, more than 215,000 people in the United States have been diagnosed with COVID-19, and more than 5,000 people have died from it. At a White House press conference on March 31, a member of the Coronavirus Task Force stated that they expected 100,000 to 240,000 deaths from COVID-19, even with mitigation efforts.

In the face of this public health emergency, the White House has restricted the flow of information from the CDC—the nation’s public health agency—to the public. According to recent news stories, scientists and health officials at the CDC must now coordinate with the Office of Vice President Mike Pence before speaking with members of the press or public about the pandemic. These stories have raised concerns that public health experts who know most about the risks to the public are not being permitted to speak candidly and that the information the government is now conveying may be incomplete, inaccurate, or misleading.

The CDC itself imposes unusually stringent restrictions on the ability of CDC employees to speak to the press and public. In 2017, Axios published text from a CDC policy announcing that “any and all correspondence with any member of the news media, regardless of the nature of the inquiry, must be cleared through CDC’s Atlanta Communications Office.”

As the lawsuit notes, the CDC denied "expedited" status to the Institute's FOIA request claiming -- somewhat ridiculously -- that the Institute “failed to show that there is an imminent threat to the life or physical safety of an individual.” Yeah, not an individual, but to fucking everyone. Just... look around, dammit. The fact that we can't get straight answers from people at the CDC is contributing to this mess we're in today where thousands of people are dying and many tens of thousands more are expected to. It seems pretty damn petty for the CDC to quibble over this. But they are doing so, and hence, they're getting sued.

Filed Under: cdc free speech, covid-19, foia, gag orders, media
Companies: knight institute

Knight Institute Warns Rep. Ocasio-Cortez That She, Like Trump, Can't Block People On Twitter

from the as-noted dept

Earlier this summer, we wrote about the 2nd Circuit appeals court affirming a district court ruling against Donald Trump, saying that it's a 1st Amendment violation for him to block followers on Twitter. The reasoning in the decisions was a bit nuanced, but the short version is that (1) if you're a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express. The four conditions do need to be met -- and the lower court at least noted that such public officials can still "mute" people. That is, the officials don't need to listen -- but they cannot limit access to the narrow public space that is created in response to their official social media posts.

Right after that ruling came down, we pointed out that someone had already sued Rep. Alexandria Ocasio-Cortez for blocking people on Twitter as well, and our analysis was that she certainly seemed to be violating the 1st Amendment in the same way as Trump was. Now, the Knight 1st Amendment Institute, which filed the initial lawsuit against Trump, has sent a letter to Ocasio-Cortez making the same point. This is interesting, because when the original lawsuit against AOC was filed, and the media requested comment from the Knight Institute, there was at least some hesitation, saying that they needed to look at all of the details. Now that the details have been explored, it appears that the Knight Institute has come to the same conclusion.

As the letter makes clear, the @AOC account meets all the criteria that the court required to say that blocking is not allowed. Apparently Ocasio-Cortez is trying to argue that the @AOC account is a personal account, and she had another more official account. But, as the Knight letter explains, that's not at all accurate:

Based on the facts as we understand them, the @AOC account is a “public forum” within the meaning of the First Amendment. You use the account as an extension of your office—to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues relating to government. Recently, for example, you used the account to discuss new “policy approaches we should consider wrt immigration,” and to ask the public, “[w]hat commissions would you want to see Congress establish?” The account is a digital forum in which you share your thoughts and decisions as a member of Congress, and in which members of the public directly engage with you and with one another about matters of public policy. Since you first took office, the number of users following the @AOC account has reached more than 5.2 million. Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news. The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.

Multiple courts have held that public officials’ social media accounts constitute public forums when they are used in the way that you use the @AOC account, and they have made clear that public officials violate the First Amendment when they block users from these forums on the basis of viewpoint. Most relevant here, the U.S. Court of Appeals for the Second Circuit recently concluded that President Trump violated the First Amendment by blocking users from his Twitter account, @real- DonaldTrump, because “he disagree[d] with their speech.” In another recent case, the Fourth Circuit held that the chairperson of a local county board violated the First Amendment by blocking an individual from her Facebook page.

In pending litigation, your attorneys have argued that the @AOC account is not subject to the First Amendment because it is a personal account. As we have explained above, that characterization is incorrect. Further, while we understand that you have another account that is nominally your “official” one, the fact remains that you use the @AOC account as an extension of your office. Notably, the Second Circuit rejected President Trump’s argument that his account is a personal one even though he has other accounts—@POTUS and @WhiteHouse—that are nominally official. The Court wrote, “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

So far, AOC responded to this by saying that she's only blocking 20 accounts and that she's blocking them for "harassment," rather than viewpoint discrimination.

But, again, as the lower court said in the Trump case, the remedy there should be "muting," not blocking. I get that being a public figure on Twitter is not always fun -- and especially for polarizing political figures (which both Trump and Ocasio-Cortez undoubtedly are). And I get that it must suck to have assholes clog up your feed. I'm barely known and, while I use Twitter's block button sparingly, I have found it useful at times. But I'm not a publicly elected official using my account for official business as an elected politician. The fact that one of the accounts AOC is blocking is a media outlet, even one as ridiculous as The Daily Caller, only highlights the 1st Amendment concerns here.

I've seen some people supporting the case against Trump, but not supporting it against AOC (and I've also seen the reverse). In most cases, though, those opinions seem to be driven mainly by whether or not one feels politically aligned with one or the other politician. And, while I have seen some good faith arguments that "harassment" should be considered something different, there is a very slippery slope there. Put that into Trump's hands and he'll just as quickly claim that everyone who is criticizing him is "harassing" him as well. We have a 1st Amendment for a reason, and politicians on both sides of the traditional aisle should respect that.

Filed Under: 1st amendment, alexandria ocasio-cortez, donald trump, free speech, harassment, public officials, public spaces
Companies: knight institute