DLNR gag order
may step on rights
Similar policies are common
By Ian Lind
in Hawaii, but they might violate
the freedom of speech
Star-BulletinState Land Director Michael Wilson may have violated the free-speech rights of employees by directing them not to talk to news reporters without permission.
Wilson says he was just trying to coordinate the department's responses to questions and prevent misunderstandings. But information advocates say such gag orders create a barrier to public understanding of key issues and raise constitutional questions.
Wilson's order was contained in a January 1998 memo to staffers in the Department of Land and Natural Resources. The memo instructed them not to give news interviews without approval from Wilson or his deputy.
"We don't want to give out wrong information about issues, some of which are very controversial," Wilson said last week. "This policy allows me to understand what information is being called for, what we're saying in response, and what issues are likely to suddenly become public."
Wilson said the directive applies only during the legislative session and will lapse when the session ends early next month.
"This is a legislative session where we've got a number of critical issues being considered," Wilson said, pointing to matters ranging from controversial boating rules to funding for ocean and resource protection.
"I wanted to know when our department was getting calls from the media so we could get focused and take advantage of opportunities to press our very great concern about how resources are being managed."
Similar policies, both formal and informal, are common in state and county government agencies, even at the University of Hawaii, said Beverly Keever, a professor of journalism at UH-Manoa.
But Keever said public officials have a responsibility to respond to questions about matters that are within their jurisdiction and expertise. "Any citizen should have the right to get a direct answer, and I think the media is just acting as a good citizen in seeking information."
A "no interview" policy imposed by a New York City welfare agency was declared unconstitutional by the 2nd U.S. Circuit Court of Appeals in a decision handed down last month.
"Individuals do not relinquish their First Amendment rights by accepting employment with the government," especially the right to speak out on matters of public concern, the court ruled.
The opinion observed that agency employees are often the best informed about the impact or effectiveness of government policies and can make key contributions to debate on public policy issues.
The challenge to the New York policy was initiated by a supervisor suspended after being quoted in a television news broadcast about problems with her agency's responses to child abuse.
Wilson said his directive does not include punishment for violators, and state Personnel Director James Takushi said he cannot recall any grievances involving employees punished for talking to reporters.
Takushi said sanctions against an employee for public comments could also violate the state's whistle-blower protection law.
A union attorney involved in the New York case warned that managers can trample on constitutional rights by adopting overly broad policies.
"Managers are very nervous about employees speaking to the press," said Barbara A. Atkin, associate general counsel for the National Treasury Employees Union in Washington, D.C., which has pursued a number of court cases involving rights of public employees.
"They have a 'circle the wagons' mentality and want to keep the lid on things, but they forget employees have the right to speak to the press, to give speeches or write articles, even if it relates to their work."
"Just telling employees they can't talk without clearing or screening in advance has the same chilling effect on freedom of speech," Atkin said.
"I can understand why management would want to present the agency's views coherently with one voice, but that stifles dissenting voices.
"The First Amendment demands more than that."
Atkin said agencies can have a very narrow rule: Don't disclose confidential information.
She also advises agencies to offer assistance to employees who need help responding to inquiries from the press or public.
Desmond Byrne, owner of an information service company and an advocate of open government, said he understands Wilson's motives and is not opposed to the policy.
"I wouldn't want my employees talking to the media about our business," Byrne said.
But Atkin advised that public employees have more constitutional protection than those of private firms precisely because their employer is the government.
"There are constitutional implications because state action is involved," Atkin said.
