Content Regulation / Censorship, Licensing / Media Regulation
Editorial Perfil S.A. v. Estado Nacional
REGISTER NOW: Join us on October 3 & 4 for the “Regulating the Online Public Sphere: From Decentralized Networks to Public Regulation” conference
In Progress Expands Expression
Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:
Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.
The United States (U.S.) District Court for the District of Columbia granted a motion for a preliminary injunction against the defendants in respect of actions taken by them within the U.S. Agency for Global Media (USAGM) that likely violated the First Amendment. The case concerned six plaintiffs from USAGM, one of whom was Program Director of the news outlet Voice of America (VOA). They objected to the actions of USAGM CEO Michael Pack and five others at USAGM, who were accused of interfering with personnel, interfering with content, investigating journalists, instituting controlling policies, and mismanaging USAGM. The plaintiffs claimed that these actions violated a host of rules and statutes, most notably the First Amendment. Chief Justice Beryl A. Howell determined that all the violation claims failed on a jurisdictional basis except for the violation of the First Amendment. The Court agreed that free speech protections did apply to VOA journalists. Upon reviewing each of the defendants’ actions, it noted that there was a violation of the First Amendment and that actions against the VOA journalists resulted in “self-censorship and the chilling of First Amendment expression.” [p. 74] In particular, actions related to interference with personnel, interference with content, and investigations into journalists exceeded any permissible oversight and were likely unconstitutional. The legal standard for a preliminary injunction was met and such activities by the defendants were enjoined.
The plaintiffs in this case were career civil servants at USAGM and VOA. They included Grant Turner and four others who were senior management officials at USAGM and Kelu Chao who was the Program Director for VOA. USAGM oversees US-funded international broadcasting. VOA is the official, publicly funded news outlet of the US government overseas and has been joined by other networks over time.
To ensure that the networks were never stripped of their “non-official status” and adversely transformed into organs of the US government, the US Congress codified their independence into statutes. They were still afforded sufficient but limited oversight from the Executive branch. The first statute was the Board for International Broadcasting Act of 1973 (BIB Act). It instituted the statutory “firewall” which legally guaranteed the networks’ journalistic independence amid government oversight. The BIB Act was replaced by the International Broadcasting Act of 1994 (IBA). The IBA consolidated Congress’ approach to the networks and created a new oversight board empowered to “direct and supervise” and to ensure adherence to “the highest professional standards of broadcast journalism” [p. 8] like objectivity and reliability. The IBA preserved the statutory firewall. In 2016, Congress sought to improve the oversight structure, replacing the board with a Chief Executive Officer (CEO). The CEO held similar duties and oversaw the quality and effectiveness of network activities. Michael Pack was the CEO since his 4 June 2020 confirmation. He and five others, who were appointed to USAGM leadership posts, are the defendants.
The original plaintiffs were the senior management officials at the USAGM. They voiced concerned over Mr Pack’s actions in protected fora. On 12 August 2020, they were placed on administrative leave by the defendants because of improperly investigated security clearances. The original plaintiffs claim that, following Mr Pack’s confirmation, the defendants engaged in various actions “designed to fundamentally undermine the networks’ independence” [p. 12] and alter their journalistic autonomy. These actions were broken down into five categories.
Firstly, there was personnel interference. The defendants eliminated employees entrusted to enforce the firewall, such as the USAGM General Counsel. The defendants also proceeded to influence employment decisions regarding networks’ journalistic and editorial personnel – an area that networks had discretion over. Mr Pack particularly refused sponsoring or renewing J-1 visas for foreign journalists who were part of VOA’s global reporting, hindering visa availability and VOA’s hiring capabilities.
Secondly, there was interference with content. The defendants meddled in newsrooms by controlling content and influencing coverage. They launched investigations into violations of journalistic ethics – an undertaking traditionally done by the networks’ journalists and editors. The plaintiffs alleged that these practices were designed to purge perceived liberal bias. They were allegedly focused on coverage seeming favorable to President-elect Joe Biden and biased against President Trump and established “a chilling effect on news coverage” [p. 17].
Thirdly, there was retaliation. The defendants responded in a “retaliatory and plainly pretextual” [p. 20] fashion to VOA journalists who expressed concerns over Mr Pack’s statements about the firewall. After a group of VOA journalists sent an internal letter to express discontent over such statements, the defendants launched an investigation into one of the writers, from which they produced a dossier of his activity and advocated for disciplinary measures.
Fourthly, there were problematic policies. The defendants announced a conflicts-of-interest policy as a response to the journalists’ letter. It was a conflict of interest to report on an issue in which they had a personal interest or had expressed a political opinion. The move was perceived as a “blatant attempt to confer discretion to identify conflicts on USAGM management” [p. 21] and forbid any critical coverage of the President.
Fifthly, there was USAGM mismanagement. The defendants allegedly sought to subvert the networks through “gross mismanagement” [p. 21] of USAGM by revoking authority to spend funds, hire personnel, and approve agreements. Consequently, resources were cut, impeding journalists’ ability to carry out their work with the same level of independence and discretion.
Separately, USAGM rescinded an interpretation of the firewall, called the Firewall Rule, it had introduced in June 2020. It reasoned that the Rule frustrated the CEO’s duties, the IBA, and USAGM’s mission.
On 8 October 2020, the original plaintiffs filed a suit against the defendants, claiming that their actions breached statutory and regulatory firewalls. On 13 October 2020, the same plaintiffs proceeded to file a motion for preliminary injunctive relief. An amended version of the complaint was later filed that included the addition of Ms Chao as a plaintiff.
Chief Justice Beryl A. Howell of the US District Court for the District of Columbia sought to delineate between, on one hand, permissible oversight of the networks by the USAGM CEO and, on the other hand, impermissible actions that interfered with the networks and their journalistic integrity. On that basis, the Court would determine whether the defendants’ actions were likely illegal and unconstitutional, and thus should be preliminarily enjoined.
Referencing Sherley v. Sebelius 689 F.3d 776 (D.C. Cir. 2012), the Court outlined the legal standard that needed to be fulfilled. The preliminary injunction was “a stopgap measure, generally limited as to time, and intended to maintain a status quo or ‘to preserve the relative positions of the parties until a trial on the merits [could] be held” [p. 23]. The plaintiffs had to prove four matters: (1) that they were “likely to succeed on the merits”; (2) that they were “likely to suffer irreparable harm in the absence of preliminary relief”; (3) “the balance of equities” was in their favor; (4) an injunction would have been in the public interest. The first matter was noted to be the most important.
The plaintiffs requested that the statutory firewall preserving the editorial independence of the broadcasters be enforced. They argued that, by breaching statutory and regulatory firewalls, the defendants violated the Administrative Procedure Act (APA) (Count I), the First Amendment (Count III), the IBA (Count IV), the Firewall Rule (Count V), and Mr Pack’s fiduciary duties as CEO of USAGM (Count VII). In an amended complaint, two other claims were added – one challenged the recission of the Firewall Rule under the APA (Count II) and the other challenged the defendants’ breaches of the statutory firewall as ultra vires (Count VI).
The defendants responded that plaintiffs could not claim their relief because they lacked Article III standing to raise the action. The plaintiffs’ action was also precluded by the exclusive remedial scheme of the Civil Service Reform Act of 1978 (CSRA) that scrapped district courts of subject-matter jurisdiction over their claims. Regarding the merits, the defendants argue that the amendments to the IBA allow the CEO to restructure the mechanics of USAGM and its networks. Moreover, they contended that there were limitations for First Amendment rights when it pertains to government employees and, thus, the constitutional claims could not be pursued. Overall, the plaintiffs had not exhibited the likelihood of succeeding in their claims. The defendants did not dispute the facts outlined by the plaintiffs.
The Court firstly reviewed the defendants’ arguments against the plaintiffs on jurisdictional grounds. In considering standing, the Court found that Ms Chao was the plaintiff that best satisfied the elements of injury to fact, causation, and redressability that were needed in terms of an Article III standing, as her First Amendment rights “face[d] a credible threat of adverse action” [p. 33] by the defendants. Based on her close relationship to the networks’ journalists and the impediments those journalists faced to their livelihoods, Ms Chao had third-party standing in their respect.
Regarding the CSRA exclusive remedial scheme, personnel actions fell within this statutory ambit and federal employment matters were denied from proceeding to the district court. Thus, the Court likely lacked subject-matter jurisdiction over Counts I, II, IV, V, VI, VII since their likelihood of success would be “highly doubtful” [p .43]. However, a narrow exception existed for constitutional claims regarding issues unrelated to CSRA procedures. This circumvented satisfying the CSRA’s exhaustion requirement. Particularly, Count III met this exception based on “sui generis” [p. 45] circumstances: the shifts in USAGM practice “implicate[d] the very constitutional rights on which U.S. funded international broadcasting [was] predicated” [p. 45] and transcended the mere “working conditions” [p. 48] which the CSRA covered.
Based on the jurisdictional analysis, the Court found that Ms Chao’s First Amendment claim (Count III) was the only one that escaped the effects of the CSRA. Specifically, the claim alleged that the defendants violated the First Amendment by unconstitutionally restraining rights of free speech and freedom of religion; unconstitutionally retaliating against First Amendment protected journalists; unconstitutionally discriminating on certain opinions; imposing a policy that conferred “unconstitutionally unfettered discretion to suppress speech” [p. 51]. The Court proceeded to ascertain Count III’s likelihood of success on the merits.
In terms of the cause of action, the Court dismissed the defendants’ contention that it was not possible for there to be a cause of action against the federal government under the First Amendment. It noted that injunctive relief could be granted against federal officials who violate the Constitution, referencing Armstrong v. Exceptional Child Ctr., Inc. 575 U.S. 320 (2015). The Court also addressed the defendants’ argument that equitable causes of action were excluded, providing that “cognizable constitutional claims” had the ability “to proceed in an Article III forum under some cause of action” [p. 52] and the CSRA was not construed to “foreclose equitable relief entirely” [p. 52]. Likewise, referencing Weaver v. U.S. Info. Agency 87 F.3d 1429 (D.C. Cir. 1996), the Court observed that the merits of the plaintiffs’ challenge under the First Amendment in that case proceeded under the same cause of action as Ms Chao’s. Thus, Ms Chao was permitted to progress with her claim for equitable relief under the First Amendment.
In terms of the legal standard, the Court sought to determine the level of First Amendment protection afforded to the plaintiffs, as government employees. The plaintiffs and amici curia stated that they held a “special status as journalists” [p. 53] who were entitled to the same protections afforded to the press as per the firewall, and it did not matter that they were funded by the government. The Court outlined that this issue was a matter of “first impression” [p. 54]. Its Circuit had consistently treated network employees as government employees when dealing with the merits of First Amendment claims. Hence, the Court questioned whether the employee-speech doctrine of the Supreme Court in Garcetti v. Ceballos 547 U.S. 410 (2006) would apply. Garcetti held that statements by public employees in their official duties were not protected as statements by private citizens pursuant to the First Amendment. Referencing Pickering v. Board of Education 391 U.S. 563 (1968), government employees who spoke as citizens on issues of public concern only enjoyed limited protection.
Despite Garcetti’s doctrine, the Court highlighted exceptions made by courts in the academic realm – particularly the “teaching and writing activities” of “faculty members at public universities” [p. 56]. In a similar vein, freedom of press held a special place within the First Amendment framework. The Court delineated the essential role freedom of the press has in the Constitution, the Republic, and for the governed. As a result, like for government-employed academics, the speech of government-employed journalists held additional constitutional interests “not fully accounted for by Garcetti” [p. 57]. Therefore, speech related to journalistic undertakings was outside Garcetti and protected using the analysis of Pickering – a two-part test.
The Court proceeded to apply the analysis to Ms Chao’s First Amendment claim. The claim satisfied the first step of speech being related to “matters of public concern” [p. 58] since the speech of the networks concerned coverage of current events and cautions of government operations, both of which were important to the broader community. The second step was whether speaking on those matters outweighed the State’s interest in “promoting the efficiency of the public services it performs through its employees” [p. 58]. The Court sought to decide the if defendants’ practices toward the employees’ speech was “no more restrictive than ‘reasonably necessary to protect’ various government interests” [p. 61]. It relied on the IBA to determine which measures were “reasonably necessary” to advance the efficiency of the agency. It found that USAGM’s day-to-day control seemed unnecessary, and Congress had deemed the networks’ independence an interest of “greater public importance” [p. 62] than efficiency.
Based on these principles, the Court evaluated each of the challenged actions of the defendants. Regarding interference with personnel, the Court found that the removal of certain individuals, like USAGM General Counsel, was within Mr Pack’s ambit and not impactful on First Amendment rights. Similarly, it was within Mr Pack’s ambit to supervise the employment of foreign journalists and to determine that J-1 visa applications deserved greater scrutinization, especially since such applications have been accused of less scrutiny in the past and some CEO involvement is necessary for proper procedural compliance. In contrast, Mr Pack’s direct interference with individual editors and journalists was “‘day-to-day’ management” [p. 65] outside his capabilities under the IBA and likely to be found unconstitutional.
Regarding content interference, the defendants’ actions, which appeared one-sided, amounted to penalize and chill free speech “on the basis of perceived viewpoint” [p. 68]. Despite the CEO’s duties to “supervise” under the IBA, the separation of evaluative responsibilities from day-to-day responsibilities meant that USAGM’s investigations and disciplinary measures towards coverage and individuals was “questionable at best” [p. 68]. Further, alternative methods were available for the defendants to use, making these actions likely unconstitutional.
In terms of retaliatory responses, the Court noted that plaintiffs were unlikely to succeed in challenging USAGM’s response since the journalists’ internal letter, which was the subject of the alleged retaliation, would be covered by Garcetti as part of work responsibilities. However, the actual investigation done by the defendants indicated an interference with content and would likely be found to be unconstitutional.
Regarding the conflict-of-interest policy, the Court found the policy to be neutral in nature and part of the CEO’s role in ensuring that the news was reliable and objective. As long as the policy was “applied evenhandedly,” [p. 71-72] the Court could not identify an undue burden on journalists’ speech that exceeded the journalistic ethics that news organizations typically adhered to. Thus, this action was unlikely to be unconstitutional. Lastly, regarding USAGM mismanagement, the Court could not pinpoint how management aspects directly implicated First Amendment rights. Still, the IBA granted the CEO the authority to oversee management matters, like funds and their distribution, and this action was unlikely to be unconstitutional.
Overall, Ms Chao demonstrated the likelihood of success on the merits of her First Amendment claim in respect of the defendants interfering with personnel, interfering with content, and investigating “alleged discrete breaches of journalistic ethics” [p. 73]. The Court proceeded to outline that the deprivation of First Amendment rights sufficiently constituted irreparable harm that the journalists would suffer absent an injunction. Moreover, the balance of the equities and the public interest further supported a preliminary injunctive because the “Constitution is the ultimate expression of the public interest” [p. 75], not the government’s policy goals. The Court emphasized that, in this case, the constitutional rights actually aligned with the policy since First Amendment values were at the forefront of the US broadcasting outlets’ mission, reinforcing the Court’s decision to favor those rights.
The Court concluded that the editorial interventions by USAGM’s leadership violated the First Amendment. While it declined to hold USAGM journalists’ rights were equal to those of any other journalist, it agreed that the defendants were wrong to suggest network reporters have no First Amendment rights just because their salaries are paid by the government. The Court ordered that the plaintiffs’ motion of preliminary injunction was denied in respect of all Counts except for Count III where a preliminary injunction was granted regarding violations of the First Amendment – specifically relating to the defendants influencing personnel, influencing content, and investigating journalists for ethical breaches. The defendants’ activities were preliminarily enjoined until a trial could be held.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The case expands expression because the Court outlined that, while USAGM journalists’ rights were not exactly equal to those of any other journalist, USAGM journalists did have some level of First Amendment protection. Specifically, the speech of government-employed journalists held additional constitutional interests outside the case of Garcetti, where statements by public employees in their official duties were not protected as statements by private citizens pursuant to the First Amendment.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Court questioned whether the employee-speech doctrine of the Supreme Court would apply. It decided that the speech of government-employed journalists held additional constitutional interests “not fully accounted for by Garcetti” [p. 57].
Since speech related to journalistic undertakings was outside Garcetti, it was protected using the two-step analysis of Pickering. The Court proceeded to apply this analysis to the plaintiffs’ First Amendment claim
The plaintiffs argued that, by breaching statutory and regulatory firewalls, the defendants violated the First Amendment.
The Court observed that the merits of the plaintiffs’ challenge under the First Amendment in Weaver proceeded under the same cause of action as the plaintiff’s in this case.
The Court looked to IBA on the basis that the defendants argued that the statute and its amendments allowed the CEO to restructure the mechanics of USAGM and its networks.
Case significance refers to how influential the case is and how its significance changes over time.
Let us know if you notice errors or if the case analysis needs revision.