CDC Sued to Disclose Restrictions on Scientists’ Right to Speak

Complaint for Injunctive Relief, Knight Institute v. CDC (S.D.N.Y Apr. 2, 2020) (No. 20-2761), complaint hosted by the Knight Institute.

Demanding the Trump Administration make public any restrictions on when employees of the Centers for Disease Control and Prevention may speak to the public or the press, the Knight First Amendment Institute at Columbia University is suing to force compliance with an unanswered Freedom of Information Act request they filed on March 19.

The complaint follows an extended controversy over whether and to what extent governments may restrict public employees from speaking to the press on their personal views. Laden with free speech concerns, the issue demands heightened urgency in the context of a worldwide pandemic that has killed tens of thousands and sparked fierce debate about the role of political leaders and scientists in responding to the crisis.

Motivating the Knight Institute’s concern in this instance is a record of severe restrictions on the rights of government scientists to speak freely to the press. In 2017, Axios published an email from Jeffrey Lancashire, a public affairs officer, to the National Center for Health Statistics, announcing that for every employee of the CDC “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.”

This policy may exacerbate fears that the White House has politicized the nation’s response to the pandemic and inhibited the voicing of alternate views that could shed light on the extent of the crisis, according to the Knight Institute’s complaint.

“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,” the complaint reads. “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.”

This lawsuit follows recent litigation that has raised questions about the current constitutional status of rights of public employees to speak to the press without official oversight. In 2006, the Supreme Court held in Garcetti v. Ceballos that speech by public employees should only receive First Amendment protection when they are communicating in their capacity as private individuals. However, in the 2014 case of Lane v. Franks, the Court held that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech.”

Rather than facing doctrinal hurdles in overturning government restrictions on the right of public employees to speak, a recent law review article by Frank LoMonte, head of the Brechner Center for Freedom of Information, identifies the fact that public employees have had to put their careers and employment relationship in jeopardy in order to bring suit. LoMonte suggests that journalists and news organizations should have standing to challenge overbroad restrictions on the right of public employees to speak.

While still untested, the prospect suggests a new line of attack on the type of rules the CDC may be enforcing against its employees. The Knight Institute’s lawsuit may then be seen as the first step in raising a more fundamental question about the constitutionality of these restrictions.

On the alternative side, public health officials have also emphasized the importance of clear and trustworthy information reaching the public during a period of such acute national and international challenges. The spread of misinformation online has drawn particular concern and forced some social media platforms to take unprecedented steps to control what their users can see and share, including partnering with organizations like the CDC and the World Health Organization to verify the information blitzing around their sites. Multiple conflicting messages from government officials — not bound by tight central controls — could contribute to the public’s confusion.

Ultimately, the Knight Institute’s lawsuit focuses on a much more narrow question: Whether the government should be permitted to keep secret its rules for when government scientists may speak publicly. As the coronavirus pandemic enters a new month, long since having banished facets of everyday life once taken for granted, the issue takes on the weight of all those who worry everyday about the information they receive from the government and the media.