Above photo: The Allegheny County Jail in Pittsburgh, Pennsylvania.
NOTE: Last August, in what is likely a groundbreaking first, investigative journalist Brittany Hailer filed a suit against the Allegheny County Jail for banning employees and contractors from speaking to reporters, even as the jail seemed to have a high death rate.
On April 23 she won an important settlement recognizing employees’ right to speak as private citizens under the First Amendment.
The case is highly significant for journalism because these restrictions, against speaking at all or against speaking without reporting to authorities, have become very common in all kinds of public agencies, businesses and other organizations.
It is believed to be the first case brought by a journalist for themselves against this censorship. Other, non journalist entities have won court decisions against such controls.
Some people thought journalists could not sue on their own behalf against these type restrictions, including “censorship by PIO,” the forced involvement of PIOs in all contacts. This could be a model for action across the country, even though it did not go to a higher court.
The case illustrates the harsh human rights implications of these gag rules. The jail had human beings locked up and officials prohibited staff or contractors from saying anything to the press, making themselves the sole source of information.
The Yale Law School Media Freedom and Information Access Clinic and the Reporters Committee for Freedom of the Press represented Hailer in the case. The Society of Professional Journalists and others have opposed such restrictions for years.
Frank LoMonte, prominent First Amendment attorney, published a legal analysis and road map for this kind of action by journalists, saying, “media plaintiffs should be able to establish that their interests have been injured, whether directly or indirectly, to sustain a First Amendment challenge to government restraints on employees’ speech to the media.”
Meantime, after seven million Covid deaths worldwide, all 70,000 or so employees in HHS are banned from speaking to the press without controls on them.
And, as we push into the Artificial Intelligence, the Department of Commerce has a policy telling employees, in effect, to stay close and say nothing without going through the authorities.
Kathryn Foxhall, who was honored by SPJ for pushing against these controls, said, “I’d like to ask journalists the question of whether it is ethical journalism not to take all possible action against these restrictions.”
“I will also put on the record my objection to the provision that allow employees speak to reporters only on their own time. This will create problems in many instances, including with daily or close deadlines. Employees routinely speak to their families, the dry cleaners, etc., during business hours. Why hamstring contacts with reporters?” – Kathryn Foxhall
In a win for government accountability in Pennsylvania, the Media Freedom and Information Access Clinic at Yale Law School and the Reporters Committee for Freedom of the Press have succeeded in lifting Allegheny County Jail rules that forbid employees from talking to the press or posting information on social media.
As part of a settlement reached in the federal First Amendment lawsuit on April 23, the Pittsburgh jail has adopted new policies that affirm employees’ right to speak and to disclose wrongdoing at the jail. The policies also empower jail employees to speak out to the press on matters of public concern.
The clinic brought the case on behalf of reporter Brittney Hailer and worked with Reporters Committee staff attorney Paula Knudsen Burke as local counsel. The complaint alleged that the jail’s gag rules violated Hailer’s rights to gather and report on the news and the jail’s employees’ rights to speak on matters on public concern.
The now-abandoned policies broadly prohibited employees from speaking to the press without the warden’s permission. They also required employees to hold all jail matters “confidential,” significantly hampering Hailer’s ability to report on conditions at the jail. MFIA’s suit alleged that these policies violate the First Amendment rights of the public and press, as well as the rights of the jail’s staff.
“This case challenged an overreaching policy that prevented all employees from talking to the press,” said Victoria Maras ’25, who worked on the case. “We worked with the Reporters Committee for Freedom of the Press and the Society of Professional Journalists (SPJ) to bring this case as a means of demonstrating that the First Amendment does not tolerate government agencies gagging their employees in this way. SPJ is particularly concerned about this issue because similar policies are being rolled out around the country, and hopefully the jail’s withdrawal of its broad rules will send a message that such restrictions on employee speech are not defensible.”
The settlement was mediated by retired Magistrate Judge Lisa Pupo Lenihan under a mandatory mediation program in the Western District of Pennsylvania. After several rounds of negotiation, the two sides chalked out new press policies for the jail. Among other things, those new rules declare that jail employees may speak on matters of public concern as private citizens on their own time and are not restricted from revealing impropriety or wrongdoing by an employee.
“This settlement and the resulting policy changes send a clear message that jail employees and contractors who want to speak publicly or with the press in their capacity as private citizens have a First Amendment right to do so,” said Burke, the Pennsylvania Local Legal Initiative attorney for the Reporters Committee. “Meaningful accountability and oversight depends upon the public’s ability to access information about what is happening inside of correctional facilities. We are glad to have reached a resolution with Allegheny County that will help ensure that, moving forward, our client and other journalists can receive information about issues of public concern from those who wish to discuss them.”
The new policies, one of which explicitly includes documentary filmmakers and freelance journalists covered by its press access provisions, will take effect 30 days from the date of signing the settlement.
“Working on this case was an excellent chance to get practical experience being a part of a mediation, which is not something you often get to do in law school,” Isaac Barnes May ’24 said. “Mediation provides a way to resolve the case by bringing together all parties, talking through differences, and developing solutions that everyone can live with.”
As part of the mediation process, MFIA’s students undertook a 50-state survey of jail press policies.
“We took inspiration from the best examples we encountered,” Federico Roitman ’25 said. “We’re confident that these new policies secure the rights of journalists and the jail’s employees.”
The Media Freedom and Information Access Clinic at Yale Law School is a law student clinic dedicated to increasing government transparency, defending the essential work of news gatherers, and protecting freedom of expression by providing pro bono legal services, pursuing impact litigation and developing policy initiatives.