Amicus Curiae Brief — Weaver v. United States Information Agency

Supreme Court, U.S. |

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Cy, FEB 28 1997

No. 96-1203 ssi

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

CAROLYN WEAVER,

PETITIONER,

V.

UNITED STATES INFORMATION AGENCY, ET AL.,

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORAR! FROM

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF THE REPORTERS COMMITTEE FOR

FREEDOM OF THE PRESS AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

Jane E. Kirtley

Counsel of Record for

Amicus Curiae

Barbara Lerner

Reporters Committee for

Freedom of the Press

1101 Wilson Blvd., Suite 1910

Arlington, Virginia 22209

(703) 807-2100

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TABLE OF CONTENTS

TABLE OF AUTHORITIOS 6.66 hi ok cece iii

INTEREST OF AMICUS CURIAE ............26%. l

POSER Gr TPL AM ok so cad oe ee eee |

SUMMARY OF THE ARGUMENT ............... l

NEUES oo 6 bee a es Rees a ha 4

I. The First Amendment rights of Weaver,

II.

il.

present and future VOA employees and

their potential audiences outweigh the

government’s interest in organizational

MS Si ees ry es ok 4

The government has no legitimate

interest in censoring unclassified

PG OS ai ae Ca oe os ks 6

The review policy does not address the

government’s stated interest in preserving

VOA’s reputation as an objective news source. 7

Employee disclosure is a crucial component of

statutorily-mandated public scrutiny of VOA. 8

Public employees have much to contribute to the

discussion about the efficient operation of

PN 3.4 8 0a 5 ek ee eee we 9

The enactment of whistleblower protection laws

demonstrates a national commitment to

protecting the rights of government employees to

speak out about abuses. ............. 11

B. Government employees who are writers and

journalists are uniquely positioned to make

significant contributions to the public debate

about the functioning of government. ..... 12

IV. Government journalists are protected by

the First Amendment and may not be

ene eo ee 13

ee Pe ree Se Or Te ee Fe eee 16

TABLE OF AUTHORITIES

Arnett v. Kennedy, 416 U.S. 134 Srl cpr cs ue: 1]

Board of County Commissioners, Wabaunsee County, Kansas y.

Umbehr, 116 S.Ct. 2342 RPE alc siuin eG ce ek pas )

Butterworth vy. Smith, 494 U.S. 624 REE 6 eg ee ee 1]

Connick v. Myers, 461 U.S. Sete Se ae aes 4, 12

Eberhardt v. O'Malley, 17 F.3d 1023 (7th Cir. 1994) .. 11, 13

Edenfield v. Fane, 507 U.S. WOU ee ee 7

Gartner v. USIA, 726 F. Supp. 1183 (S.D. Iowa sae *

Gentile v. State Bar of Nevada, 501 U.S. 1030 feee) s.°.. 36

Goodman v. City of Kansas City, Mo., 906 F. Supp. 537 (W.D.

Me ie ns 4, 10

Harman v. City of New York, 945 F. Supp. 750 (S.D.N.Y.

Bio ae 9

Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) 13

Keyishian v. Board of Regents 385 U.S. 589 i 3) See eit 4

Pickering v. Board of Education, 391 U.S. 563 (1968)... 4, 10,

12

Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995) (en banc) .. 5, 9,

10

United States y. Marchetti, 466 F.2d 1309 (4th Cir.), cert.

denied, 409 U.S. 1063 SNE eee Ora ee SEN eee: 6

ili

United States v. National Treasury Employees Union, 513 U.S.

34 OFS) 6 ke OEE SO 4, 5, 13, 16

Waters v. Churchill, 511 U.S. 661 (1994) .......... 9,12

Weaver v. USIA, 87 F.3d 1429 (D.C. Cir. 1996), petition for

cert. filed, 65 U.S.L.W. 3539 (U.S. January 29, 1997) (96-

EAE vd sa 0 BERR OVERS LS SET es 6

Statutes, Regulations and Policies

3 Foreign Affairs Manual § 628.2(c) ................ 7

ab CH Bet A ok a oe a OP ES 14

oe CAR EO. a) 5s PN 16

Be Utes ONE i ek Oe ORES ee 8

ae Gn Be 8 Ss BE PE E EES 16

ae CE rt OEE. ot 5a Oe 14

S.Rep. No. 647, 89th Cong., Ist Sess. 2 (1965) ......... 9

VOSA ine Pirate oe ea a BSS 7

Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103

Stat. 16 (1989) (codified at 5 U.S.C. § 1201 note, 1205,

PE dike CA os oe 2 SS PS 11

Articles and Reports

Congress Plans Inquiry on the Military Press, N.Y. Times, Dec.

iA Seer Oe S55 eee oe a re kak 13

Developments in the Law - Public Employment, 97 Harv.L.Rev.

iV

—————————O

drtigdis s viuce: MEE Ae Oe EE Ee oe ee 9

Bruce D. Fong, Whistleblower Protection and the Office of

Special Counsel: The Development of Reprisal Law in the 1 980s,

AMA: D.. BON TO ss Fe 1]

Barbara Gamarekin, Voice of America Has Some Wondrous

Plans, M.Y. Times, Oct..7, 19088. 0 AMS... 17

GAO Report to the Congress, Stars and Stripes, Inherent

Conflicts Lead to Allegations of Military Censorship, December

Spe, GARRARD 5 2G i wb ise oes ee cs 14

Jason P. Isralowitz, The Reporter as Citizen: Newspaper Ethics

and Constitutional Values, 141 U. Pa. L. Rev. 221 (1991) . 12

Bruce G. Knecht, The Pen is Mightier: U.S. Ti roops in Bosnia

Swear By a Newspaper that Generals Swear at, Wall Street J.,

SUE, 0a) tes WORE ES iW oe ek oe eee. 15

Carolyn Weaver, "When the Voice of America ignores its charter

- An insider reports on a pattern of abuses," Columbia

Journalism Review, November/December 1988 at 18... . . 10

TT AO A NE ET BE nme LATE, OM ME at

INTEREST OF AMICUS CURIAE

The Reporters Committee for Freedom of the Press is a

voluntary, unincorporated association of working reporters and

editors, dedicated to defending the First Amendment and

freedom of information interests of the news media and the

public. The Reporters Committee has provided representation,

legal guidance and research in virtually every major press

freedoms case that has been litigated in the United States since

1970.

This brief is submitted on written consent of the parties.

STATEMENT OF THE CASE

The Reporters Committee adopts the Petitioner’s

Statement of the Case.

SUMMARY OF THE ARGUMENT

The prepublication review policy ("review policy") at

issue here, which applies to all employees of the United States

Information Agency ("USIA"), including Voice of America

("VOA"), requires federal employees to submit their non-official

speaking, writing and teaching materials for approval by the

agency prior to publication. VOA reviews its employees’ work

for text that is "inaccurate," "confidential," or "inconsistent"

with either the agency’s operation or with United States foreign

policy. One of the government’s stated justifications for the

review policy is the preservation of VOA’s reputation as an

objective news source.

Although the government may impose restraints on the

job-related speech of public employees that would plainly be

unconstitutional in other contexts, such restraints are invalid

when the interests of present and future employees and potential

audiences, in disclosing and receiving a broad range of

expression upon matters of public concern, outweigh the interest

of the government, as an employer, in promoting the efficiency

of the services it performs through its employees.

In the instant case, the circuit court erred in finding that

the government’s speculation of harm justifies the review policy.

Specifically with respect to the government’s interest in

preserving VOA’s reputation as a reliable source of objective

news, that interest is not served by suppressing employee

criticism. In fact, the American public and the international

listening community are more likely to perceive VOA as an

unbiased news provider if allegations such as Weaver’s are

publicly aired, institutionally addressed and responded to.

The review policy is contrary to the legislative history of

USIA’s enabling statute, which provides for public scrutiny of

the agency and the content of its newscasts. Because VOA’s

broadcasts are not disseminated in this country, disclosures such

as Weaver’s are crucial to keeping the public informed about the

agency.

Employees like Weaver can offer the public unique

insights into the functioning of government agencies. In

enacting whistleblower protection statutes, Congress has

recognized the value of such disclosures and the need to protect

outspoken workers.

Journalists who are government employees are uniquely

positioned to comment about government operations. Because

they are trained observers and interpreters of often complex

information, journalists are arguably among the most informed

and articulate voices of the citizenry. Courts have recognized ee

the historical contributions to the marketplace of ideas by writers

who are also government employees.

a En IT

Our national commitment to free speech extends to

government-controlled newspapers such as Stars and Stripes, a

Department of Defense ("DoD") publication where allegations cf

censorship in the late 1980’s resulted in an overhaul of the

newspaper’s practices to counter improper news management by

military officials. Like VOA, Stars and Stripes operates under a

mandate to report news in a balanced and objective way. It is

ironic that VOA, an agency devoted to the dissemination of

accurate news and information around the world, would adopt a

review policy that is antithetical to this country’s allegiance to a

free press and an open exchange of ideas, particularly about

governmental operations.

ARGUMENT

Z The First Amendment rights of Weaver, present and

future VOA employees and their potential audiences

outweigh the government’s interest in organizational

efficiency.

Although the government may regulate the speech of its

employees more stringently than that of the general public,

Pickering v. Board of Education, 391 U.S. 563 (1968),

individuals do not forfeit the free speech rights they enjoy as

citizens upon accepting public employment. Keyishian v. Board

of Regents, 385 U.S. 589, 605-06 (1967); Goodman v. City of

Kansas City, Mo., 906 F. Supp. 537, 539, 542-44 (W.D. Mo.

1995) (individuals do not automatically relinquish their First

Amendment rights by accepting government employment). The

duty of the courts is te balance "the full protection of speech

upon issues of public concern" and the "practical realities

involved in the administration of a government office." Connick

v. Myers, 461 U.S. 138, 154 (1983). In evaluating the validity

of a post hoc restraint on public employee speech, this Court has

weighed the interests of the employee, as a citizen, in

commenting upon matters of public concern and the interest of

the government, as an employer, in promoting the efficiency of

the public services it performs through its employees.

Pickering, 391 U.S. at 568.

In United States v. National Treasury Employees Union,

513 U.S. 454 (1995) ("NTEU"), this Court modified the

Pickering test to evaluate the constitutionality under the First

Amendment of government restrictions on prospective employee

speech. NTEU involved a challenge to a statutory provision

prohibiting all employees from receiving honoraria for their

unofficial and nonpolitical writing and speaking activities. The

government contended that the ban was necessary to ensure that

federal officers did not misuse or appear to misuse their power

by accepting compensation, and to optimize efficiency. In

negating the honoraria ban, this Court articulated the following

test:

The government must show that the interests of

both potential audiences and a vast group of

present and future employees in a broad range of

present and future expression are outweighed by

that expression’s "necessary impact on the actual

operation" of the Government.

Id., 513 U.S. at 461 (imposing a higher standard of review

because the statute was a "wholesale deterrent to a broad

category of expression by a massive number of potential

speakers"). This Court found no evidence of misconduct related

to honoraria in the rank and file of low-grade federal employees,

and recognized the inherent value of free and open dialogue

between the employees and the public.

Thereafter, the D.C. Circuit applied the NTEU test to

strike down an honoraria ban relating to the off-duty speech of

Environmental Protection Agency employees on subjects directly

related to their employment. Sanjour v. EPA, 56 F.3d 85 (D.C.

Cir. 1995) (en banc). The court held that any appearance of

impropriety would be the same regardless of the agency’s

approval or disapproval of the speech. /d. ut 104.

The record in the instant case fails to reflect that

employee criticism of the agency "necessar[ily] impact[s]" on its

actual operation. As noted by the circuit court dissent:

[T]he government has offered us no more than a

few vague statements about speculative damage

to the foreign relations of the United States to

justify a formidable restriction on its employees’

speech. With the possible exception of review

for the inadvertent disclosure of classified

information, the VOA has failed to meet its

burden of showing harms that “are real, not

merely conjectural," because the alleged harms

do not implicate the interests of the VOA as an

employer in carrying out its operational mission.

Weaver v. USIA, 87 F.3d 1429, 1444 (D.C. Cir. 1996) ("the '

mere invocation of ‘foreign relations’ has no talismanic \

significance in First Amendment jurisprudence"), petition for

cert. filed, 65 U.S.L.W. 3539 (U.S. January 29, 1997) (96-

1203).

A. The government has no legitimate interest in

censoring unclassified material.

Even in speech restriction cases involving employees

with access to national security or other sensitive information,

courts have expressly stated that the government has no

legitimate interest in censoring unclassified material. In United

States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409

U.S. 1063 (1972), the CIA sought to enjoin a former employee

who had signed a confidentiality agreement promising that after

his departure from the agency he would not divulge classified

information to which he had access while a CIA employee. The

employee contended such a restraint violated his First

Amendment rights. While upholding the agreement, the Court

distinguished between the rights at stake:

Thus Marchetti retains the right to speak and "

write about the CIA and its operations, and to P

criticize it as any other citizen may, but he may

not disclose classified information obtained by

him during the course of his employment which

is not already in the public domain.

Id., 466 F.2d at 1317 (emphasis added).

Under this standard, even if Weaver had access to

classified information, she would have a First Amendment right

to publish an article containing nonclassified information that

was Critical of the agency.

B. The review policy does not address the government’s

stated interest in preserving VOA’s reputation as an

objective news source.

When the government seeks to sustain a restriction on

speech, it must demonstrate that the harms it recites are real and

that the restriction will in fact alleviate them to a material

degree. Edenfield v. Fane, 507 U.S. 761 (1993). VOA

requires prior review of its employees’ work for text that is

"inaccurate," "confidential," or "inconsistent" with either the

agency’s operation or with United States foreign policy. 3

Foreign Affairs Manual ("FAM") § 628.2(c). An internal

memorandum dated November 24, 1986 provides the following

justification for the review policy:

[VJOA employees have a special obligation to

avoid conflicts and apparent conflicts of interest

which might adversely affect VOA’s ability to

fulfill its mission in accordance with its charter.

Employees must be particularly mindful of such

conflicts when engaging in outside activities such

as Outside employment, writing or participation

in a leadership role in private organizations

dealing with international relations which might

call into question VOA’s reliability as a source

of objective news.

VOA Directive 1731A at 3c (employees must limit participation

in activities that would impair VOA’s “ability to function as a

reliable source of news and information").

The review policy does not advance the government’s

interest in promoting the agency’s reputation as an objective

news source. Censoring criticism by VOA employees does not

enhance the agency’s reputation for objectivity. In fact, the

knowledge that allegations of politicization within the agency

will be revealed and addressed can only enhance the confidence

of both the American public and the international listening

audience that the agency is adhering to its charter.

Il.

Employee disclosure is a crucial component of

statutorily-mandated public scrutiny of VOA.

Congress expressly provided for public oversight of

VOA. Section 501 of the United States Information and

Educational Exchange Act of 1948, as amended, provides, in

pertinent part:

The director [of USIA] is authorized . . . to

provide for the preparation, dissemination and

dissemination abroad, of information about the

United States, its people, and its policies,

through press, publication, radio, motion

pictures, and other information media, and

through information centers and instructors

abroad. Any such information . . . shall not be

disseminated within the United States, its

territories, Or possessions, but, on request, shall

be available in the English language at the

agency, at all reasonable times following its

release as information abroad, for examination

only by representatives of the United States press

associations, newspapers, magazines, radio

systems, and stations, and by research scholars,

and, on request, shall be made available for

examination only to members of Congress.

22 U.S.C. § 1461 (1992).

Congress limited USIA’s activities to the "foreign

sphere" in order to prevent the agency from propagandizing the

American public. Gartner v. USIA, 726 F. Supp. 1183, 1186

(S.D. Iowa 1989). However, Congress clearly intended to

provide for independent domestic oversight of USIA activities.

As part of achieving that goal, the statute provides that the

press, among others, may have access to USIA information.

According to a Senate report, transcripts of the agency’s

broadcasts should be available for inspection "in order to assure

that the output of USIA would be subject at all times to scrutiny

by responsible people outside the agency." S.Rep. No. 647,

89th Cong., Ist Sess. 2 (1965).

The review policy is contrary to the spirit of § 501,

which reflects Congress’ intent that VOA operate openly, under

public scrutiny. Because VOA’s broadcasts are not available in

this country, citizens cannot monitor the broadcasts themselves.

Although the statute provides for review of USIA material by

journalists, scholars and legislators, revelations by agency

employees can play an essential role in keeping the public

informed about VOA policies and the contents of its newscasts.

III. Public employees have much to contribute to the

discussion about the efficient operation of

government.

Government employees are often in the best position to

comment on the strengths and weaknesses of the agencies for

which they work. Board of County Commissioners, Wabaunsee

County, Kansas v. Umbehr, 116 S.Ct. 2342 (1996); Waters v.

Churchill, 511 U.S. 661 (1994). Staff members such as Weaver

are uniquely positioned to offer insights into the workings of the

agency generally, and their areas of specialization in particular.

Sanjour v. EPA, 56 F.3d 85, 94 (D.C. Cir. 1995) (en banc);

Harman v. City of New York, 945 F. Supp. 750 (S.D.N.Y.

1996); Developments in the Law - Public Employment, 97

Harv.L.Rev. 1611, 1768 (1984) ("public employees, by virtue

of their expertise and experience, are often among the citizens

who are best informed . . . and [] their opinions are thus

especially valuable to the public”).

Public employees addressing “current government

policies [is] perhaps the paradigmatic “matter[] of public

concern.’" Sanjour, 56 F.3d at 94. Therefore, public debate

may be significantly enhanced by their informed opinions.

Pickering, 391 U.S. at 572.

In Pickering, a teacher was terminated for writing a

letter to the editor that was critical of the school budget. The

Supreme Court emphasized that "[t]eachers are, as a class, the

members of a community most likely to have informed and

definite opinions as to how funds allotted to the operation of the

schools should be spent. Accordingly, it is essential that they be

able to speak out freely on such questions without fear of

retaliatory dismissal." /d. at 572. In Goodman, the court noted

that school district personnel may be in a unique position to

provide the public with information and informed opinions on

matters affecting educational quality with respect to school board

elections. 906 F. Supp. at 542.

Analogously, employees like Weaver have much to

contribute fo the public debate about VOA. Weaver’s article,

"When the Voice of America ignores its charter - An insider

reports on a pattern of abuses," Columbia Journalism Review,

November/December 1988 issue at 18, raised allegations of

undue politicization within the agency. Only an employee with

access to the inner workings of the agency could have written

such an article.

Outside of the public employee context, this court has

recognized that speech critical of the exercise of the State’s

power lies at the very center of the First Amendment. Gentile

v. State Bar of Nevada, 501 U.S. 1030, 1034 (1991) (describing

as “classic political speech" entitled to First Amendment

protection an attorney’s statements criticizing the indictment of

10

his client by the State); Butterworth v. Smith, 494 U.S. 624, 632

(1990) (information relating to alleged governmental misconduct

is speech which has traditionally been recognized as lying at the

core of the First Amendment).

A. The enactment of whistleblower protection laws

demonstrates a national commitment to protecting the

rights of government employees to speak out about

abuses.

Congress has provided additional protections to

government employees who speak out about abuses within their

agencies by enacting whistleblower protection statutes. The

legislative history of the Whistleblower Protection Act of 1989

recognizes that "[f]Jederal employees who make disclosures ...

serve the public interest by assisting in the elimination of fraud,

waste, abuse and unnecessary public expenditures" and that

"protecting employees who disclose Government illegality,

waste, and corruption is a major step toward a more effective

civil service." Whistleblower Protection Act of 1989, Pub. L.

No. 101-12, 103 Stat. 16 (1989) (codified at 5 U.S.C. § 1201

note, 1205, 1211-22 (1994)).

The fact that Congress enacted the Whistleblower

Protection Act demonstrates its commitment to free and open

discussion about the efficient and orderly operation of

government and to protecting outspoken workers from retaliation

for making such disclosures. Arnett v. Kennedy, 416 U.S. 134,

228 (1974) (Marshall, J., dissenting) (describing "[the]

importance of Government employees’ being assured of their

right to freely comment on the conduct of Government, to

inform the public of abuses of power and of the misconduct of

their superiors . . ."); Eberhardt v. O’Malley, 17 F.3d 1023,

1027 (7th Cir. 1994) (noting that courts "have had to separate

the not very socially valuable forms of speech from

whistleblowing and other socially valuable expressive activities

of public employees"); Bruce D. Fong, Whistleblower Protection

1]

and the Office of Special Counsel: The Development of Reprisal

Law in the 1980s, 40 Am. U. L. Rev. 1015 (1991).

In light of Congress’ decree that the speech of

whistleblowers is valuable and merits protection, it is irrational

to let stand prepublication review policies such as the one at

issue, where there is no clear threat to the orderly operation of

government. The better policy is to encourage open discussion

about government by those in the best position to analyze it.

Waters, 511 U.S. at 698 ("[o]ne could make a respectable

argument that high officials should allow more public dissent by |

their subordinates"); accord Connick at 168-169 (Brennan, J., |

dissenting) ("extreme deference to the employer’s judgment is

not appropriate when public employees voice critical views |

concerning th operations of the agency for which they work. |

Aithough an employer’s determination that an employee’s

statements have undermined essential working relationships

must be carefully weighed in the Pickering balance, we must

bear in mind that ‘the threat of dismissal from public

employment is . . . a potent means of inhibiting speech.’")

(citation omitted).

B. Government employees who are writers and

journalists are uniquely positioned to make significant

contributions to the public debate about the

functioning of government.

Journalists who are government employees are uniquely

positioned to comment about government operations. Because

they are trained observers and interpreters of complex

information, journalists are arguably among the most informed

and articulate voices of the citizenry. Jason P. Isralowitz, The

Reporter as Citizen: Newspaper Ethics and Constitutional

Values, 141 U. Pa. L. Rev. 221 (1991). This Court recognized

that federal employees who wrote for publications in their spare

time have made significant contributions to the marketplace of

ideas, including “literary giants like Nathaniel Hawthorne and

12

samamtiiiiiii

Herman Melville, who were employed by the Customs Service:

Walt Whitman, who worked for the Departments of Justice and

Interior; and Bret Harte, an employee of the mint.". NTEU, 115

S.Ct. at 978 ("Respondents have yet to make comparable

contributions to American culture, but they share with these

great artists important characteristics that are relevant to the

issue we confront").

In Eberhardt, the court noted a "long tradition" of

valuable sociological and muckraking publications that were

written by employees or other insiders of the institutions

exposed, including Henry Adams’s novel Democracy, the

academic novels of Mary McCarthy, Bernard Malamud, and

C.P. Snow, Jay McInerney’s fictional expose of the New Yorker

magazine, where he had been employed, and novels by Louis

Auchincloss, Scott Turow, and others about law firms, law

schools and prosecutors’ offices. /d., 17 F.3d at 1026 (finding

that a state attorney’s First Amendment rights were violated

when he was terminated for writing a novel involving fictitious

prosecutors and other persons in the criminal justice system); see

also Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1233 (7th

Cir. 1993) (rejecting a privacy and libel challenge and noting the

value of a historical book about the migration of African-

Americans to the North). |

IV. Government journalists are protected by the First

Amendment and may not be censored.

In 1988, then-President Reagan signed a bill authorizing

the General Accounting Office ("GAO") to investigate

allegations of censorship by military commanders of Stars and

Stripes, a Department of Defense ("DoD") newspaper that

serves U.S. military personnel stationed in Europe and the

Pacific that is staffed by both civilian and military journalists.

Congress Plans Inquiry on the Military Press, N.Y. Times, Dec.

13, 1987, at A32. Five members of The Society of Professional

Journalists were appointed to serve as an advisory panel to the

13

eS eS ee ee |

GAO.

Although Stars and Stripes is a government newspaper,

its charter requires it to provide "a free flow of news and

information, to operate "without censorship or news

management," and to be "factual and objective[].". 22 CFR §

247.4 et seq. In addition to providing news like any newspaper

protected by the First Amendment, Stars and Stripes is also

charged with providing "company news" to military personnel:

The newspaper improves morale by quelling

rumours, and keeping members informed on

DoD information that will affect their futures. It

provides information and assistance to family

members, which improve their spirits and

thereby the effectiveness of their military service

and/or civilian member. The newspaper

encourages participation in various positive

leisure-time activities to improve morale and

deter alcohol abuse and other pursuits that

impair their ability to perform.

22 CFR § 247.6(b)(1)(i)(C).

The GAO study found evidence of censorship at Stars

and Stripes. For example, the report noted that the newspaper

"ran a lower proportion of stories" that presented a negative

image of DoD, and that addressed "politically sensitive topics"

such as the Strategic Defense Initiative and the Iran-Contra

Affair, than the wire services carried. The report concluded that

the newspaper’s dual missions -- to provide objective news and

to serve as a company newspaper designed to bolster morale --

caused an inherent conflict. See GAO Report to the Congress,

Stars and Stripes, Inherent Conflicts Lead to Allegations of

Military Censorship, December 1988, GAO/NSIAD-89-60, at 5.

The report offered recommendations to address the

14

censorship problem, such as appointing a civilian editor who

would serve for a fixed term, implementing an editorial policy

emphasizing that subjects of interest to the readership be

published, directing military officers to refrain from interfering

or influencing news content, encouraging investigative reporting,

and conducting content analyses on a periodic basis. A recent

article in the Wall Street Journal indicates that the newspaper

adopted these recommendations. Bruce G. Knecht, 7he Pen is

Mightier: U.S. Troops in Bosnia Swear By a Newspaper that

Generals Swear at, Wall Street J., Dec. 23, 1996, at Al ("After

years of sometimes serving as little more than a Pentagon house-

organ, Stars and Stripes now produces hard-hitting reports on

the very military complex that publishes and subsidizes it").

The case of Stars and Stripes is instructive because

there, censorship was found to be unacceptable, even in the

context of a government controlled newspaper designed in part

to boost troop morale. The allegations of censorship led to an

investigation and recommendations designed to eradicate

censorship and improper news management. As with Stais and

Stripes, the VOA is required to adhere to the same basic

journalistic principles, methods, values and standards as other

news organizations, as reflected in its charter:

The long-range interests of the United States are

served by communicating directly with the

people of the world by radio. To be effective,

the Voice of America . . . must win the attention

and respect of listeners. These principles will

therefore govern Voice of America (VOA)

broadcasts: (1) VOA will serve as a consistently

reliable and authoritative source of news. VOA

news will be accurate, objective, and

comprehensive. (2) VOA will represent

America, not any single segment of American

society, and will therefore present a balanced

and comprehensive projection of significant

15

American thought and institutions. (3) VOA

will present the policies of the United States

clearly and effectively and will also present

responsible discussion and opinion on these

policies.

VOA Charter, signed into law by President Gerald R. Ford,

July 12, 1976; 22 U.S.C. § 1463; 22 CFR § 504.2(e)(1)(i)(A)-

(C).

It is ironic that VOA, a source of news to citizens of

countries with no free press and/or repressive regimes, where

censorship and government distortion is rife, would promulgate

a review policy that has the effect of hampering robust debate by

those well-situated to raise concerns about its operation. The

review policy is antithetical to this country’s strong commitment

to a free press and an open exchange of ideas.

CONCLUSION

The review policy at issue here is unacceptable because

it censors potential speech based upon vague government

assertions of harm. NT7EU, 115 S. Ct. at 1017 n.21 (deferring

to the Government’s speculation about the pernicious effects of

thousands of articles and speeches yet to be written or delivered

would encroach unacceptably on the First Amendment’s

protections).

Moreover, the review policy is contrary to VOA’s

mission to broadcast unbiased information to countries lacking a

free press.

Since its establishment . . . [VOA] has aimed at

what it calls the ‘denied’ areas of the world

~ where governments restrict the free flow of

information. From China and Cambodia to

Eastern Europe, people secretly tuned in on the

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often heavily jammed [VOA] . . . According to

Richard Carlson, director of [VOA], "Our most

important job is supplying what maestro

Rostropovich once described as ‘daily bread for

people,’ and that is what we are doing,

intellectually feeding hungry people."

Barbara Gamarekin, Voice of America Has Some Wondrous

Plans, N.Y. Times, Oct. 7, 1988, at Al8. The review policy is

similarly contrary to the agency’s mandate to adhere to accepted

journalistic practices.

According to Director Carlson, "{nJeither the State

Department nor U.S.I.A. nor the V.O.A. director has the right

to interfere in the news report." /d. Similarly, the agency

should not interfere with the nonclassified speech of its own

employees. VOA exists to provide open debate and a free press

to people in parts of the world where such freedoms are

unknown. VOA should not engage in censorship.

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For the foregoing reasons, we ask this Court to grant the

petition for a writ of certiorari.

February 28, 1997

Respectfully submitted,

“ Mane E. Kirtley

Counsel of Record for

Amicus Curiae

Barbara Lerner

Reporters Committee for

Freedom of the Press

1101 Wilson Blvd.

Suite 1910

Arlington, Virginia 22209

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