A media blackout of three federal agencies — including the Environmental Protection Agency — developing since the inaugural weekend has journalists and government watchdogs scrambling to understand the legal ramifications, and exploring practical ways of working around it.
The Trump administration’s directive also includes the Department of Interior and Department of Agriculture.
Lee Banville, professor of media law at the University of Montana-Missoula, said many access rights afforded to journalists come from legal statutes dealing with documents and don’t obligate government employees to speak to journalists.
While the exact details of how Trump’s media blackout is functioning are unknown, Banville said if the federal agencies outright refused a Freedom of Information Act request for public documents due to their gag order, then the legality of that decision could be challenged in the courts.
“If what the Trump administration is doing is banning all information out of the Environmental Protection Agency, the Food and Drug Administration and other outlets, and they’re not allowed to release information or talk to the press, this would be one of the most widespread clampdowns in communication that we’ve seen since the passage of laws in the ’60s and ’70s,” Banville said.
Banville describes public access law as a risky balancing act between the press and the state. If the state goes too far in limiting access to information, the press might fight back with a legal case that opens up access laws further than before. Likewise, if the media is too cavalier in legally challenging every instance of the state restricting public access, they may lose a case and set legal precedent for even more restricted access.
The codified results of legal battles over public access mean it’s not always worth it for the state or the media to act too aggressively in restricting or demanding access.
In 2004 the governor of Maryland issued a directive in response to critical coverage of his administration by the Baltimore Sun, stating that “no one in the Executive Department or Agencies is to speak with (Baltimore Sun reporter) David Nitkin or (Baltimore Sun columnist) Michael Olesker until further notice. Do not return calls or comply with any requests.”
The Sun sued the governor, claiming he issued the directive “for the express purpose of punishing and retaliating against The Sun for the exercise of its First Amendment rights” and alleging it “was intended to have and has had an impermissible chilling effect on The Sun’s right to free expression.”
The court denied the Sun’s claim, the scope of their decision affirming the state’s right to deny media access to individual journalists at their discretion, as is common practice.
Banville said the legal precedent Baltimore Sun v. Ehrlich set differs from a blanket denial of access to all members of the media, which he said isn’t a scenario that’s been challenged in the courts.
“If they’re banning all communication across all outlets of information other than those run by the White House that’s a centralization of communication that’s essentially unprecedented,” Banville said.
Centralizing the dissemination of information when everyone carries a networked supercomputer in their pocket poses additional challenges to the administration. While a total media blackout may have been effective in the past, Banville said that in the 21st century there are far fewer gatekeepers of information, and that silenced federal employees can sidestep a blackout the same way Trump himself sidestepped traditional media hostile to his campaign in the election.
“It’s a very dated view of how information flows,” Banville said.
Challenges to the information blackout have already begun to emerge.
Within hours of the blackout’s announcement the Freedom of the Press Foundation tweeted out its directory of media organizations that use its SecureDrop technology, broadcasting to any EPA whistleblowers interested in safely talking to journalists.
The official Twitter account of Badlands National Park went rogue Tuesday afternoon, tweeting a series of facts about climate change, atmospheric carbon dioxide and ocean acidification before the plug was pulled and the tweets deleted that evening.
U.S. Sen. Jon Tester, D-Mont., expressed concern over the blackout, issuing this statement Tuesday afternoon:
“I am deeply disturbed by this Administration limiting access to the media and the public. These agencies work for the people and must be held accountable by the people, by Congress and by the media. Good government doesn’t happen in the dark and there won’t be any light shining on these agencies if they can’t communicate with the people they serve.”
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