Lawyers for the Government Accountability Project, a whistleblower-protection group, wrote EPA June 9, 2005, warning the agency that it was violating the Constitution and the law by forbidding employees to speak to the press without press office clearance.
The issue arose when New York Times reporter Andrew Revkin cited a source June 8 who insisted on anonymity because "all agency employees are forbidden to speak with reporters without clearance."
"If [the source's assertion is] true, the EPA has a policy to institutionally violate the constitution," wrote GAP Legal Director Thomas Devine in a letter to EPA Administrator Stephen Johnson. "It is beyond any credible debate that the First Amendment protects Americans from having to get prior permission to exercise free speech rights."
"The policy also would violate the laws passed by Congress to implement free speech rights: The Whistleblower Protection Act (WPA) of 1989, ... and the Anti-gag Statute," Devine wrote. Devine asked Johnson for assurance that the report of agency policy was not true, and threatened to take EPA officials to court. He has received no response to date.
The WPA, in essence, prohibits reprisals against any federal employee for "any disclosure of information ...which the employee ... reasonably believes evidences a violation of any law, rule, or regulation; or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety" - "if such disclosure is not specifically prohibited by law and if such information is not specifically required by Executive order to be kept secret in the interest of national defense or the conduct of foreign affairs."
But the exact interpretation of the WPA has been a matter of ongoing contention between Congress and the courts. Courts have narrowed the force of the law, but Congress for some 16 years has reasserted its authority through language added to an appropriations bill. In the best known case, Lachance v. White, the US Court of Appeals for the Federal Circuit rules that the burden fell on whistleblowers to prove beyond the shadow of a doubt that government conduct they exposed met a strict definition of wrongdoing. Without such proof, the court ruled, whistleblowers would not be protected against reprisals.
"I'm not aware of any gag order, so to speak," Johnson told a group of reporters June 8 at one of three briefings, "and certainly no policy that I have now or ever have had. I will say that my experience in the government over the past number of years is that I encourage, and in fact ask, that our staff work with our Office of Public Affairs, for a number of reasons."
Legislation to restore the Whistleblower Protection Act has been introduced in several recent Congresses, but has yet to be enacted.