“We’re pleased with today’s decision. The public needs to understand the extent to which the Trump administration sidelined and even muzzled CDC employees in the midst of a global pandemic, preventing them from providing urgent public health information to the press and the public,” said Anna Diakun, staff attorney at the Knight First Amendment Institute. 

Early in the pandemic, news stories indicated that the Trump White House started requiring CDC scientists and health officials to coordinate with the Office of then–Vice President Mike Pence before speaking with members of the press or with the public about the pandemic. This policy was put into place after public health officials publicly contradicted the prior administration’s messaging.

In June of 2020, the government handed over an initial set of documents about these policies, some of which were heavily redacted. But the court found that the CDC’s search for documents was inadequate and that the CDC improperly withheld some of the key documents that did turn up in its flawed search, including emails sent from then–acting White House Chief of Staff Mick Mulvaney. 

“In the midst of this deadly pandemic, the public needs to be confident that the government’s public health advice reflects the views of public health officials—and not political talking points,” said Stephanie Krent, a staff attorney at the Knight Institute.

In today’s ruling, the U.S. District Court rejected virtually all of the CDC’s arguments, ordering the agency to produce several of the withheld documents on September 24, 2021, and to run a new, fully adequate search for additional documents.

Read today’s decision here. 

Read more about the lawsuit, Knight Institute v. CDC, here. 

The records that were previously released through this lawsuit are available here.

Lawyers on the case include Diakun, Krent, Scott Wilkens, and Alex Abdo of the Knight First Amendment Institute at Columbia University. Jennifer Pinsof also assisted with this case while serving as a legal fellow at the Knight Institute.

For more information, contact: Lorraine Kenny, communications director, lorraine.kenny@knightcolumbia.org. 

“The White House is promoting inaccurate and misleading claims about the pandemic even as it is restricting CDC employees from speaking to the press and the public,” said Anna Diakun, Staff Attorney at the Knight First Amendment Institute. “We’re concerned about the reliability of the information the public is now getting from the government, and from a First Amendment standpoint, we’re concerned that public employees are not being permitted to speak candidly, even as private citizens.”

Recent news stories indicate that the White House started requiring CDC scientists and health officials to coordinate with the Office of Vice President Mike Pence before speaking with members of the press or public about the pandemic. This policy was put into place after public health officials publicly contradicted the administration’s messaging.

The CDC itself has imposed additional restrictions on the ability of its employees to speak publicly in the past. To the extent that these policies continue to prevent CDC employees from speaking out as private citizens, they raise serious First Amendment concerns.

“In the midst of this deadly pandemic, we need to be confident that we are receiving information based on the CDC’s expertise. If the CDC has been sidelined, the public needs to know,” said Stephanie Krent, a Legal Fellow at the Knight Institute.

The CDC denied the Knight Institute’s earlier request for expedited processing arguing that the Institute had “failed to show that there is an imminent threat to the life or physical safety of an individual.”

Today’s complaint is available here.

Last month’s FOIA request is available here. 

For more information, contact Lorraine Kenny, lorraine.kenny@knightcolumbia.org. 

The following can be attributed to Stephanie Krent, Legal Fellow at the Knight First Amendment Institute.

“It’s alarming that the White House is reportedly silencing public health experts at the CDC even as it has issued inaccurate and misleading statements about the pandemic. We’re concerned that government policies restricting CDC employees’ speech may be interfering with the public’s access to accurate and vital information. If these policies prevent CDC employees from speaking out as private citizens, the policies also raise serious First Amendment concerns.”

Today’s FOIA request is available here.

For more information, contact Lorraine Kenny, Communications Director, lorraine.kenny@knightcolumbia.org, 917-532-1623.

To find out whether that’s the case, the Knight First Amendment Institute filed a Freedom of Information Act request and lawsuit seeking the CDC’s and the administration’s policies on whether and when CDC experts may speak to the public. On Tuesday, the government handed over the first set of documents about these policies, and what those documents reveal—and conceal—should only deepen the public’s concerns.

Though some are heavily redacted, the four documents that the government disclosed (available on the Institute’s website) give a glimpse into how the government is handling media inquiries about Covid-19.

First, communications about the pandemic are treated differently than other communications. Although the CDC has a general media relations policy, which was last updated in September 2019, the other documents make clear that there is a new policy in place for media inquiries related to Covid-19. The new policy appears to be embodied in a twenty-page Covid-19 “Communication and Media Strategy” document—but that’s all we can tell you about it, because the version of the policy the government produced was marked as a draft and, aside from the cover page, entirely redacted.

Second, the little we do know about the CDC’s Covid-19 communications policy suggests that it is exceedingly restrictive and may even be unconstitutional. One email, sent to staff at the National Center for Immunization and Respiratory Diseases, instructs employees to forward any media inquiries about Covid-19 to the CDC’s News Media Branch, whether or not the employee already “know[s] the source or if it is unsolicited.” The decision about whether and how to respond to that inquiry is then out of the employee’s hands: that determination is made by the CDC communications team and other officials involved in the Covid-19 response. Another email outlines a complicated approval chain for media inquiries related to Covid-19, including separate CDC, HHS, and Office of the Vice President approval procedures.

From the unredacted parts of these two emails, the procedures appear to apply broadly to any media inquiries concerning Covid-19, regardless of their nature. Most troubling, while the CDC’s general media policy explicitly notes that CDC employees need not seek preapproval from their supervisors before publicly conveying their personal views, the Covid-19 communications policy doesn’t appear to contain such a carve-out. That’s concerning because the carve-out isn’t just a courtesy; it is a First Amendment requirement. Because the First Amendment protects the right of government employees to speak out as citizens on matters of public concern, federal agencies generally cannot prevent them from doing so except in narrow circumstances.

It may be that the full policy does contain an exemption for when CDC employees seek to express themselves as citizens, rather than on behalf of the CDC. But because the government has redacted the twenty-page Covid-19 Communication and Media Strategy policy, the full First Amendment implications are not entirely clear.

What’s more, because the government has hidden the Office of the Vice President’s involvement behind a claim of executive privilege, the public can’t fully assess the level of control the administration is exerting over what CDC experts say. It’s still unclear whether certain CDC scientists are prevented from speaking to journalists altogether and how the administration is seeking to control messaging. Now that CDC Director Robert Redfield has resumed regular media briefings after three months without them, knowing if and how the administration is influencing his message is especially important.

It’s also unclear whether particular media outlets are given priority—although we do know from an internal email that the CDC, “as a rule,” is supposed to reject inquiries from Greta Van Susteren and Voice of America. That email referenced a White House newsletter accusing the outlet of having “amplified Beijing’s propaganda,” an attack described by the New York Times as “so overheated that some readers worried that hackers had infiltrated the White House’s networks.”

In their redacted form, these documents do nothing to alleviate concerns that the administration has enacted a sweeping communications policy related to Covid-19, one that allows it to stifle dissenting views of CDC employees. The government’s next production is scheduled for June 18, and if it continues to hide the answers we seek behind redactions, the Knight Institute will be headed back to court.