A federal district court in Washington on Friday granted a preliminary injunction prohibiting officials from the U.S. Agency for Global Media, including its head, Michael Pack, from interfering with the editorial independence and First Amendment rights of the journalists at Voice of America and the other networks it oversees.
The ruling, issued by Chief Judge Beryl Howell of the U.S. District Court for the District of Columbia, ordered that a request for preliminary injunction by the plaintiffs be partially granted. The order was a stopgap measure to prevent further actions laid out in a complaint until a trial can be held.
The ruling relates to a complaint filed by five USAGM officials placed on administrative leave in August and VOA Program Director Kelu Chao, who argued actions taken by the new head of the USAGM were unlawful and violated the First Amendment and the statutory firewall set up to prevent outside interference.
Howell's ruling marked a major setback for Pack, a former conservative documentary producer tapped by President Donald Trump to head the newly reconstituted USAGM. Since Pack was confirmed by the Senate in late June, the top leaders at VOA and other networks resigned or were removed, hiring and spending were frozen and Pack stopped approving visa renewals for the agency's foreign journalists.
Moreover, Pack's political appointees conducted internal investigations of reporters and editors suspected of producing news stories unfavorable to Trump and the administration that had a chilling effect on the work of editors and reporters, according to the complaint.
Under the order, USAGM officials including Pack are prohibited from "making or interfering with personnel decisions" related to individual editorial staff at VOA and its sister networks; directly communicating with editors and journalists, with the exception of the heads of those networks, or unless they have a director's consent; and conducting investigations into content, journalists and alleged breaches of ethics at the networks.
The court denied requests for a preliminary injunction involving alleged violations of the International Broadcasting Act, Administrative Procedure Act and Pack's fiduciary duties as head of USAGM and alleged activities in excess of his authority.
USAGM did not respond to VOA's email requesting comment.
"Editorial independence and journalistic integrity free of political interference are the core elements that sustain VOA and make us America's voice," VOA acting director Elez Biberaj said.
"A steady 83% of VOA's audience finds our journalism trustworthy. There are few, if any, media organizations that can claim such trust," Biberaj added.
Attorneys for the Department of Justice argued in a filing last week that the free speech protections of the First Amendment do not apply to VOA journalists because they are federal government employees, but Howell strongly disagreed.
She said the plaintiffs were likely to succeed in proving Pack and his aides "violated and continue to violate" the First Amendment rights of VOA journalists "because, among other unconstitutional effects of their actions, they result in self-censorship and the chilling of First Amendment expression."
Howell cited an investigation into VOA's White House correspondent Steve Herman, saying it "imposes an unconstitutional prior restraint not just on Herman's speech, but also on the speech of Chao and other editors and journalists at VOA and the networks."
The court will rule later on the full complaint filed against USAGM.
Lee Crain, the counsel for the plaintiffs, said, "The court confirmed that the First Amendment forbids Mr. Pack and his team from attempting to take control of these journalistic outlets, from investigating their journalists for purported 'bias,' and from attempting to influence or control their reporting content."
In a statement Friday, Crain said the opinion ensured journalists at VOA and the other networks "can rest assured that the First Amendment protects them from government efforts to control editorial and journalistic content. They are free to do exactly what Congress intended: export independent, First Amendment-style journalism to the world."
VOA and its sister networks have a vast global reach and have seen a surge in readership and viewership in the past year amid the coronavirus pandemic and the contested 2020 U.S. presidential campaign. In fiscal 2020, news and information programming of USAGM's five networks together reached a worldwide weekly audience of 354 million people in 62 languages, an increase of 4 million from last year's record audience, according to USAGM figures.
In a 76-page "memorandum opinion" Howell said VOA and the other networks export "the cardinal American values of free speech, freedom of the press and open debate to the dark corners of the world where independent, objective coverage of current events is otherwise unavailable."
"These outlets are not intended to promote uncritically the political views and aspirations of a single U.S. official, even if that official is the U.S. president," Howell said.
Pack has "allegedly taken a series of steps since his June 4, 2020, confirmation that undermine this mission."
Lawyers representing USAGM at the hearing on November 5 argued that Pack was using expanded powers granted to the CEO by Congress in legislation intended to improve the agency's management and efficiency.
The preliminary injunction found that the statutory firewall "reflects that Congress determined this interest to be of greater public importance than the general government interest in efficiency." It added that the court recognized the networks have an interest in maintaining an appearance of "the highest journalistic credibility."
Ann Cooper, professor emeritus of professional practice and international journalism at the Columbia School of Journalism in New York, said VOA's role as an independent network is crucial to its audiences.
Regulations to protect VOA's editorial independence are "hugely important," said Cooper, who as a veteran foreign correspondent has worked and traveled to some of the world's most repressive countries.
"If you remove that safeguard and allow a leadership that begins to dictate the coverage, of course you are going to lose credibility. VOA is serving countries where people already see what it means to have a government mouthpiece as media. That's not what they are turning to VOA for," Cooper said.
J-1 visa exemption
The court order prohibited interference in editorial staffing decisions, with the exception of J-1 visas - permits for international journalists with exceptional skill.
In June, Pack announced a "case by case" review of the J-1 visas, citing national security concerns and referring to findings of an Office of Personnel Management report that criticized yearslong lapses in background checks for some staff.
Since June, VOA is aware of only one decision being made in a J-1 case. Pack's office last month signed a memo rejecting a VOA Indonesian Service journalist's request for a visa renewal and green card sponsorship.
The other visas have expired with no decision supporting or denying the renewal request.
In the memo, the judge said Pack's decision to give greater scrutiny to J-1 visa applications fell within USAGM's "evaluative and review responsibilities," and cited the defense argument that foreign staff are employed only if suitably qualified U.S. candidates are not available.
VOA journalists have said previously that J-1 colleagues bring valuable insight and skills beyond simple fluency in a language that help the network broaden its reach and engage with audiences.
J-1 visa holders whose visas expired told VOA the action felt discriminatory and they doubted that the reviews took place.
One of those, Serdar Cebe, an anchor who hosted two shows, including the Turkish division's flagship, "Studio VOA," was due to fly to Istanbul on Sunday after his grace period ended without a visa renewal.
Cebe was aware other colleagues at VOA had lost their J-1 visas but said he did not become worried until the end of August, when his service chief suggested the journalist prepare for bad news.
"I was shocked as I did not see that coming. I thought that the U.S. was the champion of the world for the freedom of press and that I would never find myself in a situation where a journalist could be expelled from the VOA due to a visa issue," Cebe said in an email exchange.
Journalist sees bias
Grace Oyenubi, a Nigerian journalist who worked for VOA's Hausa Service, also said the lack of visa renewals seemed biased.
"I just feel it's discrimination. It's discriminatory," she said, adding that she passed "vigorous" security checks before being hired by VOA.
The loss of her visa has repercussions for Oyenubi's family. Her husband, whose visa is tied to Oyenubi's, had to leave his job and they could be forced to uproot their 7-year-old son, who has been to schools only in the U.S.
Senator Jeff Merkley, a Democrat from Oregon, in September proposed a bill to grant a temporary extension to journalists affected by the J-1 delays.
A spokesperson for Merkley told VOA the senator "is continuing to push his Republican colleagues to stand up and support free, fair and independent journalism at USAGM."
The spokesperson added, "Senator Merkley is hopeful that January will mark the beginning of a new chapter for USAGM, for the journalists wronged by USAGM, and for press freedom around the world, and he will continue to do all that he can to support those efforts from the Senate."