James Gordon Dickinson - Comment

[Docket No. FDA–2009–N–0247] This comment to the above docket is filed by Jim Dickinson (P.O. Box 20159, Wickenburg, AZ 85358-5159, email: jim@fdaweb.com). I am editor of Dickinson’s FDA Webview at www.fdaweb.com. I have been reporting FDA news for my own and other trade and professional media for 35 years. Thomas Jefferson once said that were it up to him to choose between a government with no press, or a press with no government, then he would not hesitate to choose the latter. Since Timothy McVey blew up the Murrah federal building in Oklahoma City in 1996, and ever-tightening security in federal buildings has locked out the free-range reporter from FDA corridors and offices, we all seem to have forgotten Jefferson’s wisdom. To many FDAers, the media are the enemy! FDA’s aversion to transparency runs long and deep. I once asked FDA’s policy board to introduce a press pass system like other government agencies, and was told by an associate commissioner: “Over my dead body!” About 20 years ago, an FDA oldtimer told me, skeptically: “Commissioners come and commissioners go, but we just stay here.” His implication was plain: the new team would be quickly captured by the bureaucracy and the new team’s dreams would come to nothing, just like always. No doubt there are FDAers now who similarly believe all this new focus on transparency will also come to naught. Both those kinds of candid conversations that I just mentioned, obviously unmonitored by the Press Office, probably could not occur today. Personal, trusting relationships between FDA employee and press, are relics of a bygone age. Security measures not only protect FDA employees from blow-ins off the street, but also from the inquiring minds of free-range reporters, who are no longer free to range throughout the agency as they did when I first came a-knocking on FDA doors. They must all use the Press Office, where — as in the movie classic Casablanca — they wait, and wait and wait. Recently, it took me six hours to get three sentences for a story I was working on – and these sentences were delivered to me with no meaningful opportunity for follow-up – which, had I been granted it, clearly might have taken another six hours, and well beyond my deadline. On August 21, 2009, I was told by a Press Officer five minutes before noon: “I'll do my best but I'm not sure I'll make your deadline (close of business that day). I have several media inquiries in queue with deadlines for today that came in before yours and I'll have to do some research into this.” My question, accompanied by a news clipping about CDRH’s Office of Device Evaluation renewing its lease at 9200 Corporate Blvd. in Shady Grove for five more years, was as follows: “If CDRH has completed its move to White Oak, why is ODE renewing its lease at Shady Grove for another five years?” This is a vivid illustration of the impossible mission that has been assigned to an under-resourced FDA Press Office. News by definition does not wait. Before FDA began channeling all media inquiries to its under-resourced Press Office, reporters were free to do their own research within FDA. Indeed, FDA’s implicit prohibition of such externally directed research and the agency’s insistence that any such news media research be done instead by government employees upon request of a news media reporter is a violation of the First Amendment, which prohibits Congress (and its creations, such as FDA) from “abridging the freedom of the press.” Sometimes the FDA Press Office’s research inside the agency pursuant to an external news media request can be a waste of scarce resources and counterproductive as well. A few months ago, one of my staff asked a Press Office specialist a question, and she eventually got back to him with the results of her searches on FDA’s Web site – information he already had from his own such research on FDA’s Web site! If you read the article The Media and the First Amendment in the Wall Street Journal, of July 13, 2009 9appended below) you were reminded that the press has the same rights as everyone else – no more and no less. Then why does FDA encourage its employees to speak with members of the public and simultaneously then discourage them from speaking with members of the press? Why, when I telephone the public contact person in an FDA Federal Register notice does that person then tell me she cannot speak to me because I am a member of the press, and that I must go to the Press Office? The law professors who wrote that Wall Street Journal article clearly believe that by judicial standards the discrimination between press and non-press that FDA now practices violates the First Amendment. After 35 years of FDA reporting, which began with complete freedom to make and keep my own contacts in an atmosphere of trust and confidence and which now hangs on the goodwill of overworked staff in the Press Office, my earnest prayer is that FDA will end this unconstitutional discrimination. News reporters are members of the public like anyone else and deserve the same candor and help that other members of the public deserve. The notion which I have heard expressed that the Press Office is a privilege or benefit to the news media that puts their inquiries higher in priority than similar inquiries from members of public does not hold water when seen in the light of the Federal Register notice contact person’s answer quoted above. In the Press Office case, the news media must wait in a queue to be served, while in the Federal Register contact person’s case, the answer is instantaneous when that contact is established. To argue that the contact person knows less than the Press Officer and therefore provides inferior or erroneous information would be similarly specious. In either case, the FDA employee is obligated to provide correct information, or to facilitate its provision by others if unable to do so. The only plausible explanation for separating news media inquirers from non-news media inquirers is to control or “spin” the information provided in a special way, or to not provide it all for some policy reason. This is the antithesis of transparency. Government employees are held to a high, public and transparent standard. They do not face keyhole or celebrity journalism of the gossip column variety. They are professionals with a grave public responsibility to convey truthful, honest information. Why does this taxpayer-paid information need to be “spun” in a special way that differs from what a member of the lay public might get if they were motivated to make a call to FDA? We in the news media want our questions answered direct, and now. Not through a policy filter after a six-hour wait. If Janet Woodcock or a consumer safety officer can take a call from industry, why can’t they take one from a reporter? This is a needlessly complicated question. It involves the building of trust and mutual respect, two qualities that have disappeared completely since the Oklahoma City bombing brought metal detectors and scheduled appointments and staff escorts into FDA buildings. The news media are not FDA’s enemy and should not be treated as potential terrorists, as some FDA employees have commented on our Web site. We need to restore a sense of trust and confidence in the new electronic era. We need the old era’s mutual respect, person-to-person relationships, sharing, and mutual accountability. My suggestions: 1. Tell every FDA employee, in a sincere and convincing way, that if they choose to speak to the news media they will not be harassed or punished by their supervisors when they abide by legal rules governing information disclosure. 2. Effectively instruct and counsel all FDA employees on those legal rules governing information disclosure. 3. Encourage every FDA employee to be as helpful as possible, within the legal rules, with every member of the public, including members of the news media, and to not discriminate between different classes of the public. 4. Establish clear guidelines for the Press Office and the various program Centers and subordinate offices, so that all their managers and staff members know that members of the news media are their constituency, to be accommodated as fully as possible according to disclosed deadlines. 5. Establish an agency-wide policy that encourages the fullest possible disclosures within the intent of the questions asked. In other words, do not seek to provide the least information that seems responsive to the question, but the most. 6. Abandon the policy of sending all reporters to the Press Office. It violates the First Amendment, provides for poor responsiveness, increases opportunities for opacity, and leads to poorly informed stories and negative public impressions of FDA. 7. Require the Press Office to comply with the results of media satisfaction surveys to be conducted by an independent party at FDA expense, wherein the news media are asked each year to evaluate the Press Office’s performance, to make suggestions, and to comment on individual staff members’ helpfulness. 8. Institute a Press Office quality-audit process like that used in many public-contact organizations, where all phone calls are answered preliminarily with a recorded message saying that for quality purposes this call may be monitored to ensure quality, and then keep those recordings for use in the eventuality of media complaints. 9. Finally, FDA has enough serious, legal secrets to keep, without adding information that isn’t secret. In the name of transparency, please return the trade media to the email lists of those who receive all-hands memos and personnel change announcements. We used to get them – why were we shut out? The fact that the Press Office disease of information control has infected every government agency and committee of the Congress should not justify its reign over the news media who seek to diligently and fairly report on FDA. Of course, there are rogues in every calling — including among FDA employees — but guarding against them should not shut down the whole system. The news media simply ask for equal treatment under the law. The Media and the First Amendment The Washington Post scandal is really about double standards. By BERT GALL and STEVE SIMPSON Our nation's capital is abuzz over the Washington Post's recent indiscretion. The newspaper planned to host a now-canceled salon at the home of Katharine Weymouth, the Post's publisher. For $25,000, lobbyists and corporate executives would be granted exclusive access to members of the Obama administration, Congress, and Post journalists. Pundits have condemned the Post for acting as an influence peddler. But other news publications routinely host similar events. This shouldn't come as a shock. Media corporations have always had the privilege of influencing politics without the restrictions -- like campaign finance laws -- that other corporations face. So while this episode has been treated as a scandal of journalistic ethics, it is really about double standards. When other business corporations attempt to influence politics -- by running political ads during elections -- editorial boards rush to condemn the corporations for "buying" elections or "unduly" influencing candidates. We should be concerned, the boards say, because those corporations have too much influence over the political debate. The public needs strict campaign finance laws to protect it from that influence. The New York Times recently featured an editorial about the Supreme Court's current major campaign finance case, Citizens United v. Federal Election Commission (2009). The editorial counseled the high court against overturning precedent, referring to Austin v. Michigan Chamber of Commerce (1990). That case allows the government to prevent corporations from spending money on electoral advocacy. According to the Times, eliminating the government's power to ban corporate political speech "would be a disaster for democracy." But if excessive influence is a reason to censor the speech of every other kind of corporation, then it is also a reason to censor the speech of media corporations. After all, the media spend millions of dollars each year on news stories about candidates and editorials endorsing them. This press is worth a lot. For example, the Washington Post's endorsement of Creigh Deeds is widely credited as the biggest factor in his rise from obscurity to victory in Virginia's Democratic gubernatorial primary this year. So where are the editorials calling for limits on the amounts of "money" -- in the form of coverage and editorials -- media companies devote to candidates? Of course, you'll hear no such thing from the nation's newspapers and media outlets. Media companies are exempt from campaign finance laws. Many in the press think that the First Amendment entitles them to special protections that don't apply to anyone else. This is wrong. The Supreme Court has repeatedly made clear that the media's right to free speech is no greater than anyone else's. And in Austin and other campaign finance cases, the Supreme Court noted that the media's exemption from campaign finance laws was discretionary, not mandatory. In short, the press's favored status is only as strong as Congress says it is, at least under current First Amendment jurisprudence. If, in the wake of the Post scandal, the public begins to believe that media companies are as corrupt as the press claims other corporations are, Congress's view on the matter could change. Alternatively, Congress may come up with some other reason to start limiting the freedom of the press. Congress is currently considering a bill that would throw struggling newspapers an economic lifeline by allowing them to operate as nonprofits -- thereby making their advertising and subscription revenue tax-exempt. The catch? Newspapers that take the deal would no longer be able to endorse political candidates. This precarious position -- free speech at Congress's discretion -- is not exactly a recipe for a strong and independent press. It's tempting to think that media companies that have called for limits on everyone else's speech will ultimately get what they deserve when Congress gets around to censoring theirs. But that would be a mistake. The press remains one of the most important bulwarks against tyranny. The solution is to protect free speech on principle, regardless of the identity of the speaker. Banning a corporation from spending its own money for political advocacy is censorship, plain and simple. The sooner the press understands this, the safer its rights -- and ours -- will be. Messrs. Gall and Simpson are senior attorneys at the Institute for Justice.