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Journalist Brittany Hailer has sued a county jail in Pennsylvania for "strictly enforcing" gag rules against prisoners and the jail's employees and contractors. Hailer claims the rules allegedly violate her constitutional rights to "gather news and receive information from otherwise willing speakers."
The lawsuit is believed to be a first-of-its-kind lawsuit brought by a journalist against such speech restrictions, and Hailer is represented by the Media Freedom and Information Access (MFIA) clinic at Yale Law School and the Reporters Committee for Freedom of the Press (RCFP).
“When the government prevents employees from speaking truthfully about matters of public concern, it restricts the flow of information to communities and can lead to issues going unreported or underreported,” stated Paula Knudsen Burke, who is an attorney for the Reporters Committee's Local Legal Initiative in Pennsylvania.
Burke added, "The public’s ability to access information about jail conditions is essential to oversight and accountability, and if jail employees and contractors want to speak publicly or with the press about health, safety, or other important issues, they shouldn’t be prevented from doing so.”
As the Society of Professional Journalists (SPJ) noted in their press release on the lawsuit, "Such restrictions have been found to be unconstitutional in past cases brought by employees or their unions. Journalism groups have been actively decrying such gag rules for at least a decade." But apparently no group in the United States had ever sued.
Hailer, an SPJ member, is the director of the Pittsburgh Institute for Nonprofit Journalism and an assistant professor at the University of Pittsburgh. The journalism institute she works for received funds this year from the Pulitzer Center to "create a database that will track jail deaths in all 67 counties in Pennsylvania."
The Allegheny County Bureau of Corrections, according to the complaint [PDF], is responsible for several policies that "limit jail employees' and contractors' contacts with the media." In particular, a policy on "access to news media" prohibits personnel from making statements, commenting to the news media, or publishing original printed material that "refers to the Bureau by name or inference without appropriate training or prior written approval from the warden."
Employees are instructed to forward any communications from journalists to the warden. Phone calls from reporters must be directed to the "attention of the warden" as well.
"The gag rules’ content-based prohibitions against unauthorized communications with the press violate the First Amendment rights of jail employees and contractors," the complaint argues. "They also violate [Hailer's] First Amendment right to gather news and receive information from otherwise willing speakers."
It further elaborates, "The gag rules harm Hailer directly by depriving her of on-the-record sources who could and would provide information essential to her reporting. They also cause substantial delay in her investigation of allegations of newsworthy events inside the jail and prevent publication of some newsworthy stories altogether by denying Hailer access to on-the-record sources."
Hailer has a particular interest in the deaths of incarcerated individuals since April 2020. At least twenty prisoners have died. For several prisoners, the jail has refused to release medical records to family members that would confirm the cause of death. Gag rules have allegedly been used to ensure employees or contractors with "relevant knowledge" do not share details with the press (or public).
"Incarcerated people and officers alike report frequent sightings of cockroaches, rats, and vermin excrement in and around the food served at the jail," the complaint additionally states. "These issues and many others go unreported or underreported because jail employees or contractors are often the only reliable source of information, and the gag rules bar them from talking to reporters."
“These speech bans, which journalists have seen grow more pervasive and controlling, are among the most damaging threats to free speech and public welfare today,” declared Claire Regan, SPJ's National President. “SPJ has repeatedly led in opposing these restrictions which it has called censorship and authoritarian."
Regan continued, "Hailer’s suit shows journalists themselves can fight back in court against people in power silencing subordinates in terms of talking to reporters or forcing them to report conversations to authorities.”
The lawsuit points to the Allegheny County Jail's news media policy, which says the warden "shall make factual, prompt announcements of unusual and newsworthy incidents to local news media; i.e., deaths, major escape or institutional emergencies.” Despite this policy, the jail often conceals details related to prisoners' deaths and health and safety concerns in the facility.
Hailer claims that several jail employees and contractors would like to speak with her but are only willing to do so "off the record" due to the gag rules.
Earlier in 2023, Hailer won a lawsuit against the same county in Pennsylvania when a judge ruled that the county must release autopsy and toxicology reports for a prisoner named Daniel Pastorek, who died at the jail in November 2020.