GRANT TURNER, et al., Plaintiffs, v. U.S. AGENCY FOR GLOBAL MEDIA, et al., Defendants.
Civil Action No. 20-2885 (BAH)
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Filed 11/20/20
MEMORANDUM OPINION
In 1942, the first transmission made by Voice of America (“VOA“), the official, publicly funded news outlet of the U.S. government abroad, promised foreign VOA listeners: “The news may be good or bad; we shall tell you the truth.” VOA News, VOA‘s First Broadcasts: “The News May Be Good or Bad, We Shall Tell You the Truth,” YOUTUBE, at 0:35–0:39 (Mar. 8, 2012), https://youtu.be/-k3bkvDDfgU. Consistent with that promise, VOA, the best-known of several U.S.-funded international broadcasting outlets, has “w[o]n the attention and respect of listeners,”
The United States’ commitment to this cultural export has contributed to the downfall of oppressive regimes around the world, from Nazi Germany to the Soviet Union. Central to the success of this critical foreign policy work, however, is the premise that, in contrast to the state-run propaganda that dominates media in the countries where VOA and its sister networks broadcast, U.S.-funded international broadcasting outlets combat disinformation and deception with facts, told through an American lens of democratic values. Thus, “to transform” these outlets “into house organs for the United States Government” would be “inimical to [their] fundamental mission.” Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1125 (D.C. Cir. 1985). Instead, to provide a model of democratic debate and deliberation informed by the contributions of a free press, VOA and its sister networks must “present the policies of the United States clearly and effectively,” alongside “responsible discussions and opinion on these policies.”
Defendant Michael Pack, the current Chief Executive Office (“CEO“) of the United States Agency for Global Media (“USAGM“), the agency that oversees U.S.-funded international broadcasting, has allegedly taken a series of steps since his June 4, 2020 confirmation that undermine this mission, and thus the networks’ efficacy as a foreign policy tool, at every turn. Together with his five co-defendants, who are individuals with no discernible journalism or broadcasting experience but nonetheless appointed by Pack to senior political leadership positions within USAGM, Pack has sought to interfere in the newsrooms of the USAGM networks, in violation of their eighty-year practice, enshrined in law, of journalistic
autonomy, and has allegedly worked systematically to eliminate those USAGM employees and network journalists who both oppose his interference and produce journalistic content that, in Pack‘s view, does not align with the political interests of President Trump. In pursuit of this goal, Pack allegedly seeks to quash not only coverage that is insufficiently supportive of President Trump, but also any coverage, unless unfavorable, of President Trump‘s political opponents.
As this Court has previously observed, “[w]idespread misgivings about Pack‘s actions raise troubling concerns about the future of these great institutions designed to advance the values and interests of the United States by providing access to accurate news and information and supporting freedom of opinion and expression in parts of the world without a free press.” Open Tech. Fund v. Pack (“OTF“), No. 20-1710 (BAH), 2020 WL 3605935, at *2 (D.D.C. July 2, 2020), appeal filed, No. 20-5195 (D.C. Cir. July 6, 2020). Further steps taken by Pack and his appointees since that observation was made only deepen those misgivings and prompt plaintiffs’ challenge in the instant suit. Plaintiffs, five senior management officials at USAGM and the Program Director for VOA, claim that defendants’ actions violate the First Amendment,
relief plaintiffs seek is foreclosed because plaintiffs lack standing to bring this action, which in any event is precluded by the exclusive remedial scheme of the Civil Service Reform Act of 1978 (“CSRA“),
Upon consideration of the briefing and exhibits submitted by the parties and amici curiae, as supplemented after a hearing on the pending motion for preliminary injunctive relief, the Court concludes that plaintiffs have made the requisite showings, including a likelihood of success on the merits of at least one of their claims, to obtain part of the extraordinary relief they seek. Consequently, as explained in more detail below, their motion is granted in part.
I. BACKGROUND
Review of the procedural background follows discussion of the historical and statutory background of U.S.-funded international broadcasting and a summary of plaintiffs’ factual allegations against defendants.
A. Historical and Statutory Background
Since World War II, the United States has funded and operated broadcast media organizations across the globe to “promote the right of freedom of opinion and expression,”
AND ISSUES FOR REFORM (“CRS INT‘L BROADCASTING REP.“) 1–5 (2016), ECF No. 12-9. These organizations include the iconic VOA, which, “[s]ince its first transmission in Germany in 1942, has served as the official news outlet of the United States government in foreign lands during wars both hot and cold,” Namer v. Broad. Bd. of Governors, 628 F. App‘x 910, 911 (5th Cir. 2015), and its sister networks, RFE/RL, Radio Free Asia, the Office of Cuba Broadcasting, and the Middle East Broadcasting Networks (collectively, the “networks“), Am. Compl. ¶¶ 2, 24, 32.
“For almost as long as these services have been in existence, debates over the effectiveness, strategic direction, and necessity of U.S. international broadcasting have persisted.” CRS INT‘L BROADCASTING REP. 1. Nonetheless, Congress has consistently determined “that institutional arrangements be such that the stations not lose their ‘non-official status‘; to transform [the networks] from independent broadcasters
1. Board for International Broadcasting Act of 1973
The first such statute was the Board for International Broadcasting Act of 1973 (“BIB Act“), Pub. L. No. 93-129, 87 Stat. 456 (1973), which “established a Board for International Broadcasting [(‘BIB‘)],” id. § 3(a), an “independent federal agency created to administer and provide federal funding to” Radio Free Europe (“RFE“) and Radio Liberty (“RL“), CRS INT‘L BROADCASTING REP. 3. BIB was created as a seven-member bipartisan board, BIB Act § 3(b)(1), tasked with funding RFE and RL, id. § 4(a)(1), “review[ing] and evaluat[ing] the
mission and operation of” the networks, and “assess[ing] the quality, effectiveness, and professional integrity of their broadcasting within the context of the broad foreign policy objectives of the United States,” id. § 4(a)(2), among other responsibilities. See also CRS INT‘L BROADCASTING REP. 3. Although BIB was charged with overseeing RFE and RL, Congress intended for the Board to “encourage continuation of the professional integrity and independence of the two radio stations, their chief operating executives, and their staffs.” H.R. Rep. No. 93-510, at 10 (1973). To formalize that vision, the BIB Act explicitly directed the Board, “[i]n carrying out [its] functions,” to “bear in mind the necessity of maintaining the professional independence and integrity of Radio Free Europe and Radio Liberty.” BIB Act § 4(b). This provision, and its subsequent iteration in later laws, became known as the “statutory firewall,” the legal guarantee of the networks’ journalistic independence in the face of government oversight. In accordance with this statutory design, BIB channeled taxpayer funding to RFE and RL, but the two networks remained formally separate from the government and “provid[ed] an example of an independent broadcaster promoting journalistic integrity and democratic principles of a free media.” CRS INT‘L BROADCASTING REP. 3. Over the next twenty years, Congress revisited the BIB Act several times, seeking to refine the balance between Board oversight and independence in the networks’ daily operations and broadcasts.1
2. United States International Broadcasting Act of 1994
Eventually, in 1994, Congress revisited and consolidated its approach to U.S. government-sponsored international broadcasting activities in the United States International Broadcasting Act of 1994 (“IBA“), Pub. L. No. 103-236, tit. III, 180 Stat. 433 (1994) (codified as amended at
The new Board retained all of the powers held by its predecessor, see id. § 305(a), and gained two additional authorities of relevance here: (1) the ability “[t]o direct and supervise” the broadcasting activities under its oversight, id. § 305(a)(1), and (2) the ability “[t]o ensure that
United States international broadcasting is conducted in accordance with the standards and principles” set forth in the IBA, see id. § 305(a)(3).2 Those standards and principles, which continue, with some additions and modifications over the years, to govern VOA and network conduct, set forth substantive requirements for the services’ programming, including, for example, that broadcasts “shall” “be consistent with the broad foreign policy objectives of the United States,” IBA § 303(a)(1);
In an effort to balance the need for oversight and policy uniformity with the independence of the networks, Congress included in the standards and principles requirements that U.S.-funded international broadcasting activities “be conducted
The IBA also preserved the statutory firewall first enacted in the BIB Act. See IBA § 305(c) (“The Director of the United States Information Agency and the Board, in carrying out their functions, shall respect the professional independence and integrity of the International Broadcasting Bureau, its broadcasting services, and grantees.“); CRS INT‘L BROADCASTING REP. 3-4. Indeed, the Senate Committee on Foreign Relations, in endorsing this structure, confidently observed that the new “framework protect[ed] the independence and journalistic integrity of the broadcasting entities.” S. Rep. No. 103-107, at 10 (1993); see also id. at 49 (finding that the firewall provision “secures the professional independence and integrity of the . . . broadcasting services“).4
By 2016, however, bipartisan observers had concluded that the BBG‘s structure resulted in “weak leadership” and “inefficient administrative and personnel management of the agency.” CRS INT‘L BROADCASTING REP. 1; see also id. at 12 (citing testimony of former Secretary of State Hillary Clinton); id. at 17 (noting that proposed reform legislation had co-sponsors from both major political parties). After several unsuccessful efforts at legislative reform, in December 2016, Congress enacted amendments to the IBA, targeted at improving agency management, as part of the thousand-page National Defense Authorization Act for Fiscal Year 2017 (“NDAA“), Pub. L. No. 114-328, tit. XII, subtit. H, § 1288, 130 Stat. 2000, 2548 (2016). The amendments restructured the BBG, most significantly, by creating a presidentially appointed CEO of the BBG,
supervise all broadcasting activities,”
On June 11, 2020, the agency, now known as USAGM, put into effect a new rule, promulgated without notice and comment, interpreting the “statutory firewall.” Firewall and Highest Standards of Professional Journalism, 85 Fed. Reg. 36,150 (June 15, 2020) [hereinafter Firewall
tension with the IBA, and impeded USAGM‘s ability to carry out its mission of promoting American values abroad, see Firewall Rule Rescission at 14–30.
B. Factual Background
Plaintiffs are career civil servants at USAGM and VOA. Am. Compl. ¶¶ 17–23. Grant Turner, Marie Lennon, Shawn Powers, Matthew Walsh, and Hoang Oanh Tran (together, the “original plaintiffs“), are senior management officials at USAGM who have voiced concerns about defendants’ actions at USAGM and the networks in various protected fora. See id. ¶¶ 17–21; Crain Decl., Ex. 57, Whistleblower Reprisal Compls. at 4–16, In re Shawn Powers, U.S. Dep‘t of State & Off. of Inspector Gen. & U.S. Off. of Special Couns. (Sept. 29, 2020) (“Whistleblower Compls.“), ECF No. 12-59. On August 12, 2020, the original plaintiffs were placed on paid administrative leave by defendants, Am. Compl. ¶¶ 17–21, allegedly on the grounds that their security clearances had been improperly investigated, see id. ¶ 64; Decl. of Grant Turner (“Turner Decl.“) ¶ 10, ECF No. 12-61; Decl. of Marie Lennon (“Lennon Decl.“) ¶ 4, ECF No. 12-66; Decl. of Shawn Powers (“Powers Decl.“) ¶ 35, ECF No. 12-70.6 Plaintiff Kelu Chao, who joined this action in plaintiffs’ Amended Complaint, currently serves as VOA‘s Program Director, in which capacity she “oversee[s] [VOA]‘s production and distribution of television, radio, online, and mobile content” and “provides direction and management support to [VOA]‘s News Center and foreign-language services.” Am. Compl. ¶ 23. She previously filed a pseudonymous declaration in support of the instant motion under the name “John Roe.” See Decl. of John Roe (“Roe Decl.“), ECF No. 12-64.
Defendants are USAGM, its CEO Michael Pack, and individuals appointed by Pack to senior political leadership positions within USAGM. See Am. Compl. ¶¶ 25–30. Pack was nominated by President Trump to serve as the first presidentially appointed USAGM CEO in 2018. OTF, 2020 WL 3605935, at *3; see Am. Compl. ¶¶ 17–21. After a two-year delay, on June 4, 2020, the Senate confirmed Pack, and four days later, on June 8, 2020, he was sworn in as CEO of USAGM. OTF, 2020 WL 3605935, at *4. According to plaintiffs, soon after Pack‘s confirmation, he and his co-defendants “commenced a series of events designed to fundamentally
1. Interference with USAGM and Network Personnel
First, according to plaintiffs, defendants systematically removed USAGM and network employees charged with enforcing the firewall. Only a week into his tenure, on June 17, 2020, in a series of events dubbed the “Wednesday night massacre” and not at issue in this litigation, Pack unilaterally removed the operational heads and directors of the networks. OTF, 2020 WL
3605935, at *1. That same day, he reassigned VOA Standards Editor Steve Springer, the person charged with educating USAGM employees on the firewall and upholding journalistic ethics, leaving the position vacant. See, e.g., Am. Compl. ¶¶ 59–63; Turner Decl. ¶¶ 22–23. On August 12, 2020, Pack placed David Kligerman, USAGM‘s General Counsel and the author of the Firewall Rule, on administrative leave. Am. Compl. ¶¶ 58, 64. To plaintiffs, the sidelining of Springer and Kligerman signaled a concerted effort by defendants “to remove individuals at the Agency and the networks who were best positioned to enforce the firewall,” thereby breaching the firewall by deliberately seeking to undermine it. Pls.’ Mem. at 9.
Plaintiffs further allege that defendants took steps to influence, and, at times, to execute, employment decisions related to editorial and journalistic personnel at VOA and the networks, an area previously understood to fall within the networks’ discretion pursuant to the firewall. See Decl. of Amanda Bennett (“Bennett Decl.“) ¶¶ 12, 14, 20, ECF No. 12-60. Defendants allegedly directed Radio Free Asia‘s director to terminate the network‘s Executive Editor, which plaintiffs describe as “a firewall-protected position,” see Am. Compl. ¶¶ 65–67; Turner Decl. ¶¶ 24–27; Lennon Decl. ¶¶ 14–15; Decl. of Matthew Walsh (“Walsh Decl.“) ¶¶ 17–18, ECF No. 12-67; Powers Decl. ¶¶ 27–28, and sought to reassign the journalist hired by VOA as its New York Bureau Chief, Am. Compl. ¶¶ 68–70; Lennon Decl. ¶ 16. Pack also declined to sponsor or renew sponsorship of J-1 visas (non-immigrant cultural exchange visas contingent on employment in the United States) for foreign journalists employed by VOA. Am. Compl. ¶¶ 71–78; Walsh Decl. ¶¶ 20–21; Lennon Decl. ¶¶ 18–19; Turner Decl. ¶¶ 31–35; Roe Decl. ¶¶ 19–22. Pack‘s failure to sign these journalists’ visa paperwork has the effect of both depriving them of visas and preventing VOA from controlling the hiring of foreign journalists. Turner Decl. ¶ 31; Roe Decl. ¶¶ 20–21. Pack allegedly plans to replace the previous system of visa sponsorship,
under which the CEO played a
2. Investigation of and Interference with Journalistic Content
Next, defendants, at Pack‘s direction, have allegedly sought to interfere directly in the newsrooms at VOA and the networks through content control and investigations into purported breaches of journalistic ethics. On June 24, 2020, Pack issued a press release stating that the homepage of VOA‘s website would link to “editorials . . . written by the U.S. government and represent[ing] its views.” Am. Compl. ¶ 101. Plaintiffs complain that VOA leadership was not consulted before this change in policy, which effectively grants USAGM direct control over content published by VOA. Id. Further, according to plaintiffs, defendant Samuel Dewey, a political appointee at USAGM, id. ¶ 26, has asked to participate in news coverage meetings at VOA and requested that VOA leadership report to him which journalists are assigned to every story under development, id. ¶ 91; Turner Decl. ¶ 36; Powers Decl. ¶¶ 25–26; Bennett Decl. ¶¶ 25, 34; Sugawara Decl. ¶¶ 19, 25; Roe Decl. ¶¶ 14–15, 18; Coe Decl. ¶ 12. Plaintiffs believe that, through these efforts, Dewey has “reach[ed] far within the newsroom and bypass[ed] [VOA] leadership and USAGM procedures in an unlawful attempt to influence coverage.” Pls.’ Mem. at 12 (first citing Roe Decl. ¶¶ 14–15, 18; and then citing Crain Decl., Ex. 21, USAGM Procedures for Violations of the Principles, Standards, or Journalistic Code of Ethics, U.S. Agency for Global Media (Mar. 12, 2020) (“USAGM Procedures“), ECF No. 12-23).
Defendants have also initiated investigations into alleged breaches of journalistic ethics and the networks’ statutory standards, which are typically carried out by journalists and editors at the networks, not by USAGM officials. See Turner Decl. ¶¶ 29, 49; Lennon Decl. ¶¶ 25; Decl. of Hoang Oahn Tran (“Tran Decl.“) ¶ 17, ECF No. 12-68; Walsh Decl. ¶ 28; Powers Decl. ¶¶ 20–21; Roe Decl. ¶ 11; Decl. of John Doe (“Doe Decl.“) ¶¶ 10–16, ECF No. 12-63. Plaintiffs allege that these “inappropriate investigations” are a barely-concealed effort “to root out perceived ‘liberal bias,‘” Pls.’ Mem. at 12, a theory substantiated by Pack‘s publicly stated commitment to combating what he describes as USAGM and the networks’ “drift to the left” since the passage of the IBA, Crain Decl., Ex. 22, Federalist Radio Hour, Interview with Michael Pack, The Federalist (“Pack Interview“), at 07:30–07:35 (Aug. 27, 2020), ECF No. 12-24.8
The investigations undertaken by defendants have allegedly focused on coverage they perceive as unduly favorable to President-elect Joe Biden, President Trump‘s opponent in the 2020 presidential election, or biased against President Trump. Am. Compl. ¶¶ 83–88, 92–95. One such investigation, led by Dewey, id. ¶ 86, focused on a video posted by VOA‘s Urdu service, which covered then-candidate Biden‘s remarks “at an event organized by an American-Muslim nonprofit organization” without providing any context, id. ¶ 85; Turner Decl. ¶¶ 29–30; Bennett Decl. ¶¶ 32–33;
defendants did not investigate a similar clip, published by VOA‘s Spanish-language service, of a campaign-style video by President Trump encouraging Latino voters to support his reelection. Am. Compl. ¶¶ 83–84.
As evidence that this investigation had a detrimental chilling effect on VOA journalists, plaintiffs contend that, soon after the investigation concluded, a VOA journalist at the Urdu service removed videos from the service‘s website, including coverage of widespread civil unrest and protests following the death of George Floyd in the summer of 2020, allegedly out of fear that “[d]efendants might view these stories through a particular lens and subject those associated with the stories to punishment.” Am. Compl. ¶ 89. In response, Dewey again reached into the VOA newsroom, this time to require the Chief of the Urdu service to “identify content put out during [the] same time period . . . that presents the other side of these issues, namely that regardless of the merit of the [Black Lives Matter movement] or other causes, mass rioting is not acceptable.” Id. ¶ 90 (emphasis omitted).
A second investigation scrutinized the production and editing of video profiles of First Lady Melania Trump and Dr. Jill Biden, the wife of President-elect Biden. Id. ¶¶ 92–97. The profiles, which were posted on VOA‘s website on July 29, 2020, are of similar length and tone. They describe each woman‘s background, career, and work in support of various causes, and include clips of them speaking at public events on behalf of their spouses’ presidential campaigns. See Crain Decl., Ex. 23, America‘s First Lady—From Immigrant Model to the White House, VOA NEWS (July 29, 2020), ECF No. 12-25; id., Ex. 24, Former Second Lady Vying to Be America‘s First Lady, VOA NEWS (July 29, 2020), ECF No. 12-26.9 Defendants allegedly caused members of USAGM‘s Human Resources Department to contact multiple VOA reporters
and editors and interrogate them about their involvement in the pieces, the identities of colleagues who might have participated in their production, and interviewees’ opinions as to whether the profiles were “balanced.” Am. Compl. ¶¶ 92–97; see also Doe Decl. ¶¶ 8–16; Coe Decl. ¶ 11. The investigation specifically sought to identify the author of language in a separate profile of Mrs. Trump stating that President Trump “has disparaged immigrants and regularly attacks perceived adversaries on Twitter.” Am. Compl. ¶ 97.
Plaintiffs claim that defendants’ investigations violate USAGM policy with respect to potential lapses of journalistic ethics, which requires that the network in question undertake the initial investigation and allows for USAGM involvement only if a widespread pattern of ethics violations is identified. Am. Compl. ¶¶ 98–100; see also USAGM Procedures at 1–2. They further allege that the investigations “have a chilling effect on news coverage,” Am. Compl. ¶ 96, as demonstrated by the fact that
3. Retaliatory Response to VOA Journalists’ Letter and Criticism of Pack‘s Public Statements About VOA
Plaintiffs next allege that defendants’ response to VOA journalists’ expression of concerns related to public statements made by Pack breached the firewall. In an August 27, 2020 public interview on a podcast not affiliated with USAGM, Pack made a series of comments about his role as USAGM CEO and his view of VOA, the networks, and their mission that, to plaintiffs, signal his disregard for the firewall and his careless attitude towards longtime employees of USAGM and the networks. Am. Compl. ¶¶ 123–28; see also Pack Interview. With regard to the firewall, Pack articulated his belief that VOA “is supposed to represent the Administration‘s point of view along with legitimate criticism but in a full and forthright
manner.” Pack Interview at 06:24–06:30. He stated that he only “sort of agree[d] with [the] premise . . . that there needs to be separation between us, the political appointees, and what journalists are reporting,” id. at 10:12–10:22, and described his “job” as “to drain the swamp, root out corruption, and to deal with . . . issues of bias,” id. at 09:55–10:10.
Pack elaborated on “drain[ing] the swamp” concerning USAGM, VOA, and network employees by expressing a wish to “expose [purported perpetrators of bias and wrongdoing at USAGM and the networks] to the media.” Id. at 14:15–14:20. Further, while discussing his decision to withhold J-1 visas for foreign journalists employed by VOA and the networks, Pack remarked that “be[ing] a journalist is a great cover for a spy” and speculated that J-1 visa holders might try to “penetrate[]” USAGM. Id. at 22:15–22:35. He stated, “I can‘t just give these people . . . a J-1 visa . . . or I could be potentially endangering the national security of America.” Id. at 23:00–23:15. Finally, in an exchange described by one declarant as “loathsome public banter,” Coe Decl. ¶ 15, the interviewer asked Pack, during a discussion about reopening VOA‘s Washington, D.C. headquarters in the midst of the COVID-19 pandemic, “Have you considered banning masks and turning off the air conditioning?” Pack laughed and responded, “Well, we‘ll have to look into that one.” Pack Interview at 17:24–17:31.
Several days after the interview, on August 31, 2020, a group of VOA journalists, led and organized by Steve Herman, VOA‘s White House Bureau Chief, sent a letter to VOA‘s Acting Director, Elez Biberaj, expressing their “profound disappointment with the actions and comments of [Pack], which endanger the personal security of Voice of America reporters at home and abroad, as well as threatening to harm U.S. national security objectives.” Crain Decl., Ex. 19, Letter from Aline Barros et al., Journalists, Voice of America, to Elez Biberaj, Acting Director, Voice of America (Aug. 31, 2020) (“VOA Journalists Letter“) at 1, ECF No. 12-21. Of
particular concern to the journalists was “Pack recklessly expressing that being a journalist is a ‘great cover for a spy,‘” a statement that, in their view, could place VOA journalists working in hostile countries in “jeopardy,” and his “bantering with a podcast host about turning off the air conditioning and banning masks inside VOA‘s headquarters” during the COVID-19 pandemic. Id. The letter called for “competent and professional oversight for VOA and [its] sister media organizations,” id. at 2, and expressed “dismay” at Pack‘s dismissal of “USAGM executives . . .
On September 1, 2020, USAGM responded to the journalists’ letter through a series of tweets posted on its spokesperson‘s official account, @USAGMspox, which branded the letter as “improper” and contrary to “procedure” and “prescribed protocols,” and stated that “USAGM and VOA leadership are handling the choice of complaint transmission as an administrative issue.” Crain Decl., Ex. 41, USAGM Spokesperson (@USAGMspox), TWITTER (Sept. 1, 2020, 7:40 AM), ECF No. 12-43. Soon after, defendants Dewey and Frank Wuco, at Pack‘s direction, launched an investigation into Herman, who had organized the journalists. Am. Compl. ¶ 109; Crain Decl., Ex. 51, David Folkenflik, VOA White House Reporter Investigated for Anti-Trump Bias by Political Appointees, NPR (Oct. 4, 2020, 8:10 PM), ECF No. 12-53; Doe Decl. ¶¶ 14–15; Roe Decl. ¶ 16; Coe Decl. ¶¶ 15, 19–20. As part of the investigation, defendants prepared “a 30-page dossier of materials” in an effort, through scrutiny of Herman‘s recent coverage of the
Trump Administration‘s response to the COVID-19 pandemic and social media activity, to construct what plaintiffs characterize as “an erroneous case that Herman violated Voice of America‘s Best Practices Guide or Social-Media Policies.” Am. Compl. ¶ 110; see also Roe Decl. ¶ 16; Coe Decl. ¶¶ 19–20. Defendants forwarded the dossier to Biberaj, VOA‘s Acting Director, and asked him repeatedly to “do something” about Herman—i.e., require Herman to recuse himself from coverage of the White House or remove Herman from his position as White House Bureau Chief. Roe Decl. ¶ 16; see also Am. Compl. ¶¶ 110–11; Powers Decl. ¶ 28; Coe Decl. ¶¶ 19–20. Plaintiffs allege that the investigation into Herman, and defendants’ resulting “attempts to pressure Biberaj to take action against Herman,” were “retaliatory and plainly pretextual.” Am. Compl. ¶ 112.
4. Conflicts-of-Interest Policy
Plaintiffs next challenge a new conflicts-of-interest policy announced by defendants in the wake of the journalists’ letter. Approximately a month after the journalists’ letter was sent, on October 4, 2020, Pack sent a policy memorandum, backdated to October 2, 2020, to all employees of VOA and the networks. Am. Compl. ¶ 105; Coe Decl. ¶ 17; Crain Decl., Ex. 49, Memorandum from Michael Pack, Chief Executive Officer, U.S. Agency for Global Media, to Voice of America et al. (Oct. 2, 2020) (“Conflicts Policy“), ECF No. 12-51. The memorandum claimed to “clarify policies” with respect to conflicts of interests and the potential appearance or creation of conflicts via journalists’ use of social media. Conflicts Policy at 1. Under “applicable policies,” according to the memorandum, “it is a conflict of interest for a journalist to participate personally and substantially in reporting on an issue: (1) in which they have a personal interest or (2) have publically [sic] personally expressed a political opinion.” Id. As examples of potential conflicts under this policy, the memorandum states that “a journalist who
is working in the United States on a J-1 visa must . . . recuse themselves from any story involving J-1 visas“; “a journalist who, in their private capacity, publicly criticizes the U.S. Department of Justice‘s
5. Defendants’ Gross Mismanagement of USAGM
Finally, according to plaintiffs, defendants allegedly sought to undermine VOA and the networks through gross mismanagement of USAGM. On June 17, 2020, Pack revoked all authority delegated to USAGM senior career staff, including the powers to spend funds, hire personnel, and approve contracts. See, e.g., Am. Compl. ¶¶ 50–53; Walsh Decl. ¶¶ 9–10; Powers Decl. ¶ 14. As a result, plaintiffs claim, “[b]asic tasks like ordering toilet paper and contracting for cleaning services . . . languished,” Pls.’ Mem. at 9 (citing Turner Decl. ¶ 41; Compl. ¶ 50, ECF No. 1), “essential contracts lapsed,” id. (citing Compl. ¶ 50; Walsh Decl. ¶ 23; Roe Decl. ¶¶ 23–24), and at least two of the networks nearly missed payroll, id. (citing Compl. ¶ 50). Without funding and essential resources, plaintiffs allege, “journalists cannot cover the stories of their choosing, preventing them from acting with journalistic independence or employing editorial discretion.” Pls.’ Mem. at 33 (citing Turner Decl. ¶¶ 35, 39–41; Walsh Decl. ¶ 23; Roe Decl. ¶¶ 21–24; Compl. ¶ 143).
C. Procedural History
On October 8, 2020, plaintiffs filed the instant suit, claiming that defendants’ alleged breaches of the statutory and regulatory firewalls violate the APA (Count I), the First Amendment (Count II), the IBA (Count III), the Firewall Rule (Count IV), and Pack‘s fiduciary duties to USAGM as its CEO (Count V). Compl. ¶¶ 146–77. Shortly thereafter, on October 13, 2020, they filed the pending motion for preliminary injunctive relief. See Pls.’ Mot.10 In accordance with the scheduling order proposed by the parties and adopted by the Court, see Min. Order (Oct. 16, 2020); Min. Order (Oct. 28, 2020), on October 26, 2020, defendants filed their opposition, see Defs.’ Opp‘n, and on November 2, 2020, plaintiffs submitted their reply, see Pls.’ Reply Mem. P. & A. Supp. Pls.’ Mot. Prelim. Inj. (“Pls.’ Reply“), ECF No. 30.
On November 4, 2020, the day before the hearing on the pending preliminary injunction motion, plaintiffs filed an Amended Complaint, adding a new plaintiff, Kelu Chao, VOA‘s Program Director, Am. Compl. ¶¶ 22–23, and two additional claims against defendants, id. ¶¶ 159–201. In addition to the five claims included in the original Complaint, alleging that defendants’ actions in contravention of the statutory and regulatory firewalls violate the
II. LEGAL STANDARD
A preliminary injunction “is 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 can be held.‘” Sherley v. Sebelius, 689 F.3d 776, 781–82 (D.C. Cir. 2012) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)). To obtain relief, the moving party must establish that (1) they are “likely to succeed on the merits“; (2) they are “likely to suffer irreparable harm in the absence of preliminary relief“; (3) “the balance of equities” is in their “favor“; and (4) “an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008); see also League of Women Voters of the U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016); Pursuing Am.‘s Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016). The first factor is also the “most important factor.” Aamer v. Obama, 742 F.3d 1023, 1038 (D.C. Cir. 2014); see also Munaf v. Geren, 553 U.S. 674, 690 (2008) (“[A] party seeking a preliminary injunction must demonstrate, among other things, ‘a likelihood of success on the merits.‘” (quoting Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418, 428 (2006))).11
A preliminary injunction “is an extraordinary . . . remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion” on each of the four factors. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis omitted) (quoting 11A C. WRIGHT, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 2948, at 129–30 (2d ed. 1995)). When the requested preliminary relief would alter the status quo, the standard the movant must satisfy is especially “demanding.” Archdiocese of Wash. v. Wash. Metro. Area. Transit Auth., 897 F.3d 314, 319 (D.C. Cir. 2018); see also Dorfmann v. Boozer, 414 F.2d 1168, 1173 (D.C. Cir. 1969) (“The power to issue a preliminary injunction, especially a mandatory one, should be ‘sparingly exercised.‘” (quoting 7 J.W. MOORE, FEDERAL PRACTICE ¶ 65.04(1), at 1627 (2d ed. 1968))).
III. DISCUSSION
Defendants’ vigorous challenges to the exercise of subject-matter jurisdiction over plaintiffs’ claims are reviewed first and lead to the conclusion that jurisdiction is likely lacking over plaintiffs’ statutory and regulatory claims, under the APA and IBA. See infra Part III.A.1. These challenges are therefore not likely to succeed on the merits, and plaintiffs’ motion for a preliminary injunction as to these claims is denied. See infra Part III.A.1.b.ii. At the same time, however, the Court does have jurisdiction over plaintiff Kelu Chao‘s constitutional claim in Count III. See infra id. This First Amendment challenge to defendants’ management of USAGM is likely to succeed with respect to certain of defendants’ actions that impinge on the First Amendment rights of Chao and other journalists at VOA and the networks. See infra Part III.A.2. Chao has also shown that allowing defendants to continue violating these important constitutional rights will cause her and her colleagues irreparable harm. See infra Part III.B. The balance of the equities and the public interest further weigh in favor of preliminary relief enjoining defendants from continuing to engage in certain specified actions. See infra Part III.C.
A. Plaintiffs Have Established a Likelihood of Success on the Merits.
As to the first factor, plaintiffs assert that they are likely to prevail on the merits of their claims that defendants’ actions at USAGM violate the IBA, the APA, the First Amendment, and Pack‘s fiduciary duties to USAGM as its CEO. See Pls.’ Mem. at 19–41; Pls.’ Reply at 14–21; Pls.’ Suppl. Mem. at 16–23. Defendants counter, first, that plaintiffs’ suit fails on jurisdictional grounds, see Defs.’ Opp‘n at 6–18; Defs.’ Suppl. Mem. at 1–11, and second, that on the merits, plaintiffs challenge actions by defendants that are entirely consistent with applicable law and therefore have not shown any likelihood of succeeding on their claims, see Defs.’ Opp‘n at 18–35; Defs.’ Suppl. Mem. at 12–22. “Federal courts cannot address the merits of a case until jurisdiction—the power to decide—is established.” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 513 (D.C. Cir. 2016); see also Lovitky v. Trump, 949 F.3d 753, 758 (D.C. Cir. 2020) (“Before proceeding to the merits of a case, the court must confirm that it has Article III jurisdiction.” (citing Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94–95 (1998))). Accordingly, each jurisdictional challenge defendants raise is addressed in turn, followed by consideration of the merits of plaintiffs’ claims.
1. Jurisdiction
Defendants contend that plaintiffs’ suit fails on threshold jurisdictional grounds for two primary reasons. First, they argue plaintiffs cannot establish Article III standing in their own right, Defs.’ Opp‘n at 7–15; Defs.’ Suppl. Mem. at 1–8, 11–12, and consequently cannot assert third-party standing to invoke the rights of journalists employed by USAGM-funded networks, Defs.’ Opp‘n at 16–18. Second, according to defendants, even if plaintiffs had standing, the CSRA, which provides a detailed, exclusive remedial scheme for claims brought by federal employees related to their employment, strips district courts of subject-matter jurisdiction over plaintiffs’ claims. Id. at 11–16; Defs.’ Suppl. Mem. at 8–11. Neither argument poses an impediment to
a. Standing
Standing is an “‘essential and unchanging’ component” of jurisdiction, Hancock, 830 F.3d at 513 (quoting DaimerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)), which is “[t]rained on whether the plaintiff is [a] proper party to bring [a particular lawsuit],” Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020) (en banc) (alterations in original) (quoting Ariz. State Legis. v. Ariz. Indep. Redistricting Comm‘n, 576 U.S. 787, 799 (2015)). The standing inquiry “involves ‘both constitutional limitations on federal-court jurisdiction,‘” under Article III‘s case-or-controversy requirement, and “prudential limitations on its exercise,‘” Kowalski v. Tesmer, 543 U.S. 125, 128 (2004) (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)), one of which is the third-party standing doctrine plaintiffs invoke, see, e.g., LaRoque v. Holder, 650 F.3d 777, 781–82 (D.C. Cir. 2011).12 “Until th[is] jurisdictional threshold is crossed, ‘the court cannot proceed at all in any cause.‘” Hancock, 830 F.3d at 513 (quoting Steel Co., 523 U.S. at 94). Plaintiffs’ Article III standing and third-party standing are thus considered in turn.
i. Article III Standing
Article III requires that plaintiffs establish “the irreducible constitutional minimum of standing,” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992), that they have “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan, 504 U.S. at 560–61); see also Louie v. Dickson, 964 F.3d 50, 54 (D.C. Cir. 2020).13 “The absence of
if ‘taken to be true,’ demonstrate a substantial likelihood of standing.” Id. (omission in original) (quoting Lujan, 504 U.S. at 561).
If standing “can be shown for at least one plaintiff, [a court] need not consider the standing of the other plaintiffs.” Carpenters Indus. Council v. Zinke, 854 F.3d 1, 9 (D.C. Cir. 2017) (quoting Mountain States Legal Found. v. Glickman, 92 F.3d 1228, 1232 (D.C. Cir. 1996)); see also In re Navy Chaplaincy, 697 F.3d 1171, 1176–78 (D.C. Cir. 2012). Plaintiff Kelu Chao, VOA‘s current Program Director, who is responsible for supervising the production of journalistic content and was a last-minute addition to the named plaintiffs, makes out the strongest case for Article III standing of all six plaintiffs.14
follows focuses on her ability to satisfy the three elements of injury in fact, causation, and redressability.
The parties primarily dispute the presence of an injury in fact. An injury in fact requires “invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560–61; see also U.S. Telecom Ass‘n v. FCC, 825 F.3d 674, 739 (D.C. Cir. 2016). With respect to all seven counts in the Amended Complaint, Chao asserts that she has suffered injuries in fact to her First Amendment rights as a result of defendants’ interference in VOA‘s newsroom. Though defendants protest that Chao, as an employee of the federal government, “is not entitled to First Amendment protections” in her job, Defs.’ Suppl. Mem. at 11; see also id. at 18–19; Defs.’ Opp‘n at 27–35, “[w]hen determining whether a plaintiff has Article III standing, the court must assume that the [plaintiff] will prevail on the merits,” Comm. on Judiciary of U.S. House of Representatives v. McGahn, 968 F.3d 755, 762 (D.C. Cir. 2020); see also Estate of Boyland v. Dep‘t of Agric., 913 F.3d 117, 123 (D.C. Cir. 2019). Chao asserts injury in fact as a result of what she views as the unlawful interference by defendants, since June 8, 2020, see supra Part I.B, with her “exercise of editorial control and judgment,” the regulation of which cannot “be exercised consistent with First Amendment guarantees of a free press,” Miami Herald Publ‘g Co. v. Tornillo, 418 U.S. 241, 258 (1974); see also Pls.’ Suppl. Mem. at 3–4. For the purposes of the standing inquiry, the Court must treat this claim as true. See, e.g., LaRoque, 650 F.3d at 785 (“[I]n assessing plaintiffs’ standing, we must assume they will prevail on the merits of their constitutional claims.“); Common Cause v. Biden, 909 F. Supp. 2d 9, 18 (D.D.C. 2012) (“In assessing Plaintiffs’ standing, the Court assumes that Plaintiffs will prevail on the merits of their constitutional claims.” (citing Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1105 (D.C. Cir. 2008))).
Chao claims that the policies adopted by defendants; their management of USAGM, VOA, and the networks; their efforts to force their way into the newsroom through personnel actions, investigations, direct contact with journalists, and input into content; and their rescission of the Firewall Rule render her “unable to fully exercise [the] editorial control and judgment” necessary for her to do her job, in violation of the First Amendment. Pls.’ Suppl. Mem. at 2; see also Second Decl. of Kelu Chao Further Supp. Pls.’ Mot. Prelim. Inj. ¶¶ 10–11 (“Second Chao Decl.“), ECF No. 43-1; supra Part I.B. She further argues that her injuries consist not only of “infringements upon her editorial discretion,” but also of “[d]efendants’ chilling of her right to exercise that discretion,” Pls.’ Suppl. Mem. at 4; see also id. at 2–5, by creating an atmosphere of fear at VOA and the networks, see Roe Decl. ¶¶ 25–26; Second Chao Decl. ¶¶ 10–11. To that end, Chao declares that she, along with her editor and journalist colleagues, “constantly worr[y]” that they could be “terminated for overseeing coverage of a story that [defendants] do not agree with,” Roe Decl. ¶ 25, and is “concerned that overseeing
Defendants contend that Chao has not established any cognizable injury in fact because she “does not allege that she has actually been prevented from engaging in any speech,” “[n]or does she identify any concrete or imminent threat that [d]efendants will act to control her speech.” Defs.’ Suppl. Mem. at 11. Defendants are correct that “allegations of ‘a subjective “chill” are not an adequate substitute for a claim of specific present objective harm or a threat of specific harm.‘” Defs.’ Suppl. Mem. at 12 (quoting Laird v. Tatum, 408 U.S. 1, 13 (1973)). Nonetheless, post-Laird cases plainly establish that a subjective chill of First Amendment rights, paired with a credible threat of imminent, adverse government action against the claimant, may create a cognizable injury. See, e.g., Susan B. Anthony List v. Driehaus (“SBA List“), 573 U.S. 149, 159 (2014); U.S. Telecom Ass‘n, 825 F.3d at 739; Act Now to Stop War & End Racism Coal. v. District of Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009) (“While ‘subjective “chill” alone will not suffice to confer standing on a litigant . . . imminent threats commonly suffice.‘” (quoting Am. Library Ass‘n v. Barr, 956 F.2d 1178, 1194 (D.C. Cir. 1992))); Seegars v. Gonzales, 396 F.3d 1248, 1251–52 (D.C. Cir. 2005) (same).16
Thus, in the context of a pre-enforcement challenge to a law that burdens a plaintiff‘s First Amendment rights, the injury in fact requirement is satisfied by the plaintiff‘s demonstration of an “‘intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by [government policy].‘” U.S. Telecom Ass‘n, 825 F.3d at 740 (quoting SBA List, 573 U.S. at 159); see also Woodhull Freedom Found. v. United States, 948 F.3d 363, 371–72 (D.C. Cir. 2020). The injury is deemed “sufficiently imminent,” SBA List, 573 U.S. at 159, upon “a credible statement by the plaintiff of intent to commit violative acts and a conventional background expectation that the government will enforce the law [or its policies],” U.S. Telecom Ass‘n, 825 F.3d at 739 (quoting Act Now to Stop War & End Racism Coal., 589 F.3d at 435); see also SBA List, 573 U.S. at 159; Atlas Brew Works, LLC v. Barr, 820 F. App‘x 4, 6 (D.C. Cir. 2020) (recognizing the availability of “a pre-enforcement First Amendment challenge to a government policy“).17 Chao‘s theory of injury is closely
to a pre-enforcement challenge, and so she may establish a cognizable, non-speculative injury in fact by demonstrating her intent to exercise editorial and journalistic discretion and independence of the sort defendants have made a habit of penalizing, see supra Part I.B, and a reasonable expectation that defendants will continue to restrict and penalize acts of editorial and journalistic independence which they perceive to be insufficiently supportive of only President Trump. See, e.g., supra Part I.B.3 (describing defendants’ investigations of journalists responsible for video profiles that included coverage of Dr. Jill Biden and of VOA‘s Urdu service for coverage of then-candidate Biden‘s remarks at an event).
As VOA‘s Program Director, Chao occupies a position similar to a Managing Editor at other news organizations and is responsible for “planning, directing, and coordinating all of [VOA‘s] broadcasting services . . . and its programming activities on digital, radio, television, and the web.” Second Chao Decl. ¶ 2; see also id. ¶¶ 3–10; id., Ex. A, Position Description for Program Director, Voice of America (“Position Description“) at 1–3, ECF No. 43-2. She is specifically charged with “[e]stablish[ing] and assur[ing] adherence to production and journalism standards,” “[e]xercis[ing] news and editorial judgment,” Position Description at 1, and “[e]nsur[ing] that material used in programs meets the requirements of the VOA Charter, including the requirement to provide consistently reliable and authoritative news that is accurate, objective, balanced and comprehensive,” id. at 2; see also Second Chao Decl. ¶¶ 3, 11.
Chao‘s intended conduct of continuing to carry out these duties is “‘arguably affected with a constitutional interest’ because [it] involves speech.” Woodhull Freedom Found., 948 F.3d at 372 (internal citation omitted) (quoting SBA List, 573 U.S. at 161). Chao contends that her planned conduct could well violate the Firewall Rule Rescission, the conflicts-of-interest policy, and defendants’ unwritten rules that editors and journalists should produce only coverage amenable to defendants’ political views and defer to defendants’ allegedly unconstitutional interference in VOA‘s newsroom. Pls.’ Suppl. Mem. at 2–5; Second Chao Decl. ¶¶ 10–11. To the extent that Chao‘s full exercise of her First Amendment rights as an editor and a journalist in fact comes into conflict with defendants’ vision for the USAGM networks, as the record in this case reveals, see supra Part I.B, Chao indeed faces a credible threat of adverse action. Defendants’ extensive pattern of penalizing those USAGM and network employees whom defendants regard as insufficiently supportive of President Trump has resulted in the termination, discipline, and investigation of multiple employees and journalists. See id.. This pattern of conduct, bolstered by Pack‘s blunt public
The remaining two elements of standing causation and redressability—“typically ‘overlap as two sides of a causation coin,‘” because “if a government action causes an injury, enjoining the action usually will redress that injury.” Carpenters Indus. Council, 854 F.3d at 6 n.1 (quoting Dynatlantic Corp. v. Dep‘t of Def., 115 F.3d 1012, 1017 (D.C. Cir. 1997)). Such is the case here. Chao‘s First Amendment injuries are “fairly traceable” to defendants’ actions; indeed, defendants are the sole cause of her injuries. Likewise, an order enjoining defendants from further interference with Chao‘s First Amendment rights would restore her editorial discretion and eliminate any chilling effects. Chao has thus established Article III standing in her own right with respect to all seven claims in the Amended Complaint.
ii. Third-Party Standing
Chao also has third-party standing to raise claims on behalf of VOA and the networks’ journalists. Third-party standing is available to plaintiffs who, in addition to their own Article III standing, can successfully demonstrate a “close relationship” with the third parties whose rights they assert and some “hindrance” to the third parties pursuing their own rights. Kowalski, 543 U.S. at 130; see also Powers v. Ohio, 499 U.S. 400, 411 (1991); Am. Immigr. Laws. Ass‘n v. Reno, 199 F.3d 1352, 1361–62 (D.C. Cir. 2000); Lepelletier v. FDIC, 164 F.3d 37, 42–43 (D.C. Cir. 1999). These limitations are intended to “avoid ‘the adjudication of rights which those not before the Court may not wish to assert’ and to ensure ‘that the most effective advocate of the rights at issue is present to champion them.‘” LaRoque, 650 F.3d at 781–82 (quoting Duke Power Co. v. Carolina Env‘t Study Grp., Inc., 438 U.S. 59, 80 (1978)).
As to the first factor, Chao has a sufficiently “close relationship” with both the journalists she oversees at VOA and journalists at the other USAGM networks. Such a relationship exists when there is “an identity of interests between the parties such that the plaintiff will act as an effective advocate of the third party‘s interests.” Lepelletier, 164 F.3d at 44. Though confidential or contractual relationships, for example, those between doctors and patients, attorneys and clients, and vendors and vendees, have most often been found to support third-party standing, see Defs.’ Opp‘n at 16–17 (collecting cases), neither the Supreme Court nor the D.C. Circuit has ever “required” such a relationship, see, e.g., Lepelletier, 164 F.3d at 44 (recognizing a “close relationship” between an independent money finder and his prospective customers). In her role as VOA‘s Program Director, Chao directly supervises almost 1,300 journalists, full-time employees of VOA as well as contractors, and 200 technical employees. Second Chao Decl. ¶ 3. She is charged with ensuring that each of these individuals “adhere[s] to production and journalism standards” and “provide[s] consistently reliable and authoritative news that is accurate, objective, balanced and comprehensive.” Position Description at 1–2. Although Chao does not supervise journalists at the other USAGM networks, they, too, operate under the IBA and therefore are subject to
As to the second factor, the journalists Chao supervises at VOA and their network colleagues are hindered in protecting their own rights. To satisfy the hindrance requirement, a plaintiff need only show that “there is some impediment to the real party in interest‘s ability to assert his own legal rights.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 31 (D.D.C. 2010) (citing Singleton v. Wulff, 428 U.S. 106, 118 (1976)). Even that lenient standard may be further “relax[ed]” when a plaintiff asserts “First Amendment claims.” Reese Brothers, Inc. v. U.S. Postal Serv., 531 F. Supp. 2d 64, 69 (D.D.C. 2008) (first citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); and then citing Sec‘y of State v. Joseph H. Munson Co., 467 U.S. 947, 956 (1984)). Pseudonymous journalists have asserted that they believe, were they to sue in their own names, they would face “employment retaliation,” Coe Decl. ¶ 23; see also Doe Decl. ¶ 20, their “career[s] and professional li[ves] would be at serious risk,” Coe Decl. ¶ 27; see also Doe Decl. ¶¶ 23, 25, and any J-1 visa holders among them would “risk losing their homes or livelihoods concretely,” Coe Decl. ¶ 27; see generally id. ¶¶ 22–27; Doe Decl. ¶¶ 20–25. These impediments are enough to demonstrate a hindrance to the journalists’ assertion of their own rights. See, e.g., Camacho v. Brandon, 317 F.3d 153, 160 (2d Cir. 2003) (finding sufficient hindrance where third party faced potential of retaliation by employer); Reese Brothers, Inc., 531 F. Supp. 2d at 70 (granting third-party standing on the basis of “merely a danger of chilled speech“).
Chao therefore has standing in her own right and on behalf of journalists at VOA and the networks. The next question is whether she survives the second jurisdictional hurdle defendants raise: namely, that of the Civil Service Reform Act.
b. Civil Service Reform Act
Federal courts are courts of limited jurisdiction. Accordingly, “[w]ithin constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Bowles v. Russell, 551 U.S. 205, 212 (2007)). If Congress creates “a special statutory review scheme,” courts presume “that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” Id. (quoting City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)); see also Mapes v. Reed, Civ. No. 20-223 (JEB), 2020 WL 5545397, at *2 (D.D.C. Sept. 16, 2020).
Defendants argue first, that the CSRA is such a scheme, and second, that Chao‘s claims fall squarely within its purview. See Defs.’ Opp‘n at 11–16; Defs.’ Suppl. Mem. at 8–11.
i. CSRA Structure and Principles
The CSRA “establishes a framework for evaluating personnel actions taken against federal employees” through a series of graduated administrative procedures, “depending on an action‘s severity.” Kloeckner v. Solis, 568 U.S. 41, 44 (2012). Under the CSRA‘s “comprehensive and exclusive” remedial scheme, Grosdidier v. Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009), cert. denied, 558 U.S. 989 (2009), an employee may appeal a major adverse employment action, for example, termination or demotion, see
Most relevant here, “personnel actions” that fall within OSC‘s purview include “any . . . significant change[s] in duties, responsibilities, or working conditions.”
The CSRA “sets out the method for covered employees to obtain review of adverse employment actions” in such “painstaking detail” that, as the Supreme Court has explained, “it is fairly discernible that Congress intended to deny [covered] employees an additional avenue of review in district court.” Elgin v. Dep‘t of Treasury, 567 U.S. 1, 11–12 (2012). This Circuit has likewise concluded, even before Elgin, that the CSRA‘s remedial scheme is “exclusive” and “constitutes the remedial regime for federal employment and personnel complaints.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009) (collecting cases); see also Fornaro v. James, 416 F.3d 63, 66 (D.C. Cir. 2005) (finding that the CSRA‘s “remedial provisions are exclusive, and may not be supplemented by the recognition of additional rights to judicial review having their sources outside the CSRA“). Accordingly, “covered employees appealing covered agency actions” must “proceed exclusively through the statutory review scheme, even in cases in which the employees raise constitutional challenges to federal statutes.” Elgin, 567 U.S. at 10; see also Steadman v. Gov., U.S. Soldiers & Airmen‘s Home, 918 F.2d 963, 967 (D.C. Cir. 1990) (“[F]ederal employees may not circumvent [the CSRA‘s] structure even if their claim is based as well on the Constitution.“).
The CSRA thus generally deprives district courts of subject-matter jurisdiction over claims within its ambit, that is, claims brought by covered employees challenging covered employment actions. See, e.g., Lacson v. U.S. Dep‘t of Homeland Sec., 726 F.3d 170, 174–75 (D.C. Cir. 2013); Mahoney v. Donovan, 721 F.3d 633, 635–36 (D.C. Cir. 2013); Weaver, 87 F.3d at 1434. This preclusive effect is extensive. As to covered employees, the Supreme Court has determined that the CSRA “entirely foreclose[s] judicial review to employees to whom the CSRA denies statutory review” and “similarly indicates that extrastatutory review is not available to those employees to whom the CSRA grants administrative and judicial review.” Elgin, 567 U.S. at 11 (citing United States v. Fausto, 484 U.S. 439, 443 (1988)). As to covered actions, beyond restricting judicial review of covered constitutional claims, the CSRA prevents district courts from deciding the merits of APA claims challenging an agency‘s “‘systemwide’ . . . policy interpreting a statute,” its “implementation of such a policy in a particular case,” Nyunt, 589 F.3d at 449 (quoting Fornaro, 416 F.3d at 67–69), or its decision to engage in “‘a type of personnel action’ the [CSRA] does not cover,” Mahoney, 721 F.3d at 635–36 (emphasis in original) (quoting Filebark v. U.S. Dep‘t of Transp., 555 F.3d 1009, 1013 (D.C. Cir. 2009)); see generally Grosdidier, 560 F.3d at 497 (holding that federal employees “may not circumvent the [CSRA‘s] requirements and limitations by resorting to the catchall APA to challenge agency employment actions“). The CSRA even reaches so far as to preclude statutory claims concerning adverse employment actions that it does not cover, for which recourse to “the CSRA scheme ultimately would provide no relief.” Nyunt, 589 F.3d at 449. As the D.C. Circuit has put it bluntly: “what you get under the CSRA is what you get,” even if what you get is nothing at all. Fornaro, 416 F.3d at 67.
The CSRA‘s preclusive orbit is vast, but not all-encompassing in at least
D.C. Circuit has similarly consistently determined that federal employees have “a right to federal court review of their constitutional claims,” Weaver, 87 F.3d at 1433. For employees challenging major employment actions and employees challenging prohibited personnel practices whose complaints are the subject of OSC petitions to the MSPB to resolve, the
For employees challenging prohibited personnel practices that OSC declines to bring before the MSPB, the
A narrow exception to this exhaustion rule for employees otherwise covered by the
ii. Application to Chao
Plaintiffs concede that Chao has not filed a complaint with OSC or otherwise sought to avail herself of the
As explained above, the
Jurisdiction, then, turns on whether Chao‘s constitutional claim (Count III) is likely exempt from the
The
Viewed through this lens, Chao‘s constitutional claim does not relate to “working conditions.” She challenges defendants’ alleged transformation, in a matter of months, of VOA and the networks from media outlets committed to editorial and journalistic independence and integrity into “organ[s] of state media” that actively suppress the First Amendment rights of their employees. Hr‘g Tr. at 24:19. Chao thus does not allege a change in the conventionally understood circumstances of her employment, like a change in schedule or chain of command. She alleges instead major shifts to the background assumptions behind doing journalism at VOA and the networks. VOA and the networks’ “autonomy and . . . commitment to providing objective news coverage” have long been their calling card to audiences abroad. OTF, 2020 WL 3605935, at *1. “[C]redibility and independence are [their] most essential assets,” Second Chao Decl. ¶ 10, and the firewall provisions of the
Indeed, VOA‘s Best Practices Guide makes clear that preservation of the firewall and the concomitant “credibility of reporting by U.S. international broadcasters” presents a “legal issue” to be handled between VOA management and USAGM officials. Crain Decl., Ex. 18, Best Practices Guide, Voice of America (2020) (“Best Practices Guide“) at 100, ECF No. 12-20. Thus, “directive[s] from outside the newsroom,
Chao‘s constitutional claim is thus sufficiently distinct from any
The Supreme Court‘s subsequent statement in Elgin that the
Finally, plaintiffs argue that, because Chao has third-party standing to raise the rights of contract journalists at VOA and the networks, see supra Part III.A.1.a.ii, who are not subject to the
The Supreme Court has cautioned, however, that “the absence of provision for [certain] employees to obtain judicial review is not an uninformative consequence of the limited scope of the [
2. First Amendment Claim
Count III of the Amended Complaint, Chao‘s only claim that likely survives the preclusive effect of the
a. Cause of Action
At the outset, defendants contend that Count III fails because there is no “cause of action against the federal government under the First Amendment itself.” Defs.’ Opp‘n at 19 (citing Am. Road & Transp. Builders Ass‘n v. EPA, 865 F. Supp. 2d 72, 83 (D.D.C. 2012), aff‘d, No. 12-5244, 2013 WL 599474 (D.C. Cir. Jan. 28, 2013); Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-26 (9th Cir. 1989)). The Supreme Court, however, has “long held that federal courts may in some circumstances grant injunctive relief against” federal officials who act in “violation[] of federal law” or the Constitution. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326-27 (2015); see also Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 74 (2001) (“[I]njunctive relief has long been recognized as the proper means for preventing entities from acting unconstitutionally.“). Despite this tradition of keeping the courthouse doors open to constitutional claimants, defendants argue that
Yet, where cognizable constitutional claims are at stake, Chao must be able to proceed in an Article III forum under some cause of action. Cf. Sierra Club v. Trump, 929 F.3d 670, 697 (9th Cir. 2019) (“It cannot be that simply by pointing to any statute, governmental defendants can foreclose a constitutional claim.“). Further, neither the Supreme Court nor this Circuit has identified in the
b. Legal Standard
Next, the parties dispute the level of First Amendment protection to which plaintiffs, as government employees, are entitled. Defendants argue that Chao and the VOA and network journalists for whom she stands as a representative are “civil servant[s],” Defs.’ Opp‘n at 27 (alteration in original) (quoting Roe Decl. ¶ 28), with “no First Amendment protection for speech taken pursuant to their official duties,” id.; see also id. at 27-35. Plaintiffs and amici, in contrast, contend that, despite their status as government employees, VOA and network employees are entitled to the full panoply of First Amendment protections owed to the press because of their special status as journalists. Relying on the premise that “‘the notion of the “press” should be given a broad meaning,‘” Pls.’ Mem. at 29 (quoting Tripp v. Dep‘t of Def., 284 F. Supp. 2d 50, 55 (D.D.C. 2003)), they suggest that “the mere fact that a journalistic outlet is funded (or even owned) by the government does not strip that organization of its First Amendment protection,” id.; see also Pls.’ Reply at 21-23; Reporters’ Comm. Br. at 11-16. This position is bolstered, they claim, by the
The question of which First Amendment standard controls disputes between journalists at U.S.-funded international broadcasting outlets and their managers in the Executive branch with regard to the application of the firewall and the journalists’ performance of their core editorial and journalistic functions is, as amici note, a question of first impression. See Reporters’ Comm. Br. at 12; cf. Tripp, 284 F. Supp. 2d at 55 (noting that the D.C. Circuit has not “provided any guidance as to what characteristics should bring a publication within the scope of the First Amendment“). To begin, this Circuit has consistently treated VOA and network employees and contractors as government employees, subject to employee-speech restrictions, when reaching the merits of their First Amendment claims. See, e.g., Navab-Safavi, 637 F.3d at 315-18; Weaver, 87 F.3d at 1440-43; Jangjoo v. Broad. Bd. of Governors, 244 F. Supp. 3d 160, 170-72 (D.D.C. 2017); Suzal v. Kopp, No. 91-0957-LFO, 1991 WL 126030, at *2-4 (D.D.C. June 28, 1991), aff‘d sub nom. Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574 (D.C. Cir. 1994).25 Thus, defendants
The Supreme Court in Garcetti held that “when public employees make statements pursuant to their official duties, the employees are not speaking as [private] citizens for First Amendment purposes,” id. at 421, and thus have “no First Amendment cause of action based on his or her employer‘s reaction to the speech,” id. at 418; see also Mpoy v. Rhee, 758 F.3d 285, 290-91 (D.C. Cir. 2014) (holding that public employee speech made “pursuant to . . . official duties” is not protected even when the speech falls outside the employee‘s job description). The decision refined the employee-speech rule of Pickering v. Bd. of Educ., 391 U.S. 563 (1968); see also Connick v. Myers, 461 U.S. 138, 146-49 (1983), which set forth a “public concern” analysis and balancing test to determine when public employees’ speech is protected, see Pickering, 391 U.S. at 568. Post-Garcetti, government employees generally have no First Amendment protection with respect to speech made “pursuant to their official duties,” Garcetti, 547 U.S. at 421, and enjoy limited protection under Pickering for speech undertaken “as a citizen on a matter of public concern,” id. at 418; see also Lane v. Franks, 573 U.S. 228, 237 (2014); Baumann v. District of Columbia, 795 F.3d 209, 215-16 (D.C. Cir. 2015).
Perhaps recognizing that Garcetti‘s near-elimination of First Amendment rights poses a particular threat to those uniquely situated public employees whose official duties necessarily entail free speech, the Supreme Court noted in that decision that First Amendment expression “related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by . . . employee-speech jurisprudence.” Garcetti, 547 U.S. at 425; see also id. at 438 (Souter, J., dissenting) (cautioning against extension of the employee-speech doctrine “to imperil First Amendment protection of academic freedom in public colleges and universities, whose teachers necessarily speak and write ‘pursuant to . . . official duties‘” (omission in original)). This potential limitation on Garcetti‘s reach acknowledges the special status of teachers and academics in the First Amendment tradition. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 329 (2003) (“We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special
Following in that tradition, at least two circuits have found that Garcetti does not apply to the teaching and writing activities, undertaken “pursuant to their official duties,” of faculty members at public universities. See Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014) (“[I]f applied to teaching and academic writing, Garcetti would directly conflict with the important First Amendment values previously articulated by the Supreme Court.“); Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d 550, 562 (4th Cir. 2011) (“We are . . . persuaded that Garcetti would not apply in the academic context of a public university[.]“). These circuits have chosen to apply the greater protections of Pickering to public university professors’ core functions of teaching and writing because of their special status under the First Amendment, while recognizing that Garcetti controls speech related to activities undertaken “pursuant to official duties” outside that heartland. See Demers, 746 F.3d at 413 (suggesting that “mere squabbles over jobs, turf, or ego” would be governed by Garcetti); Adams, 640 F.3d at 563 (“There may be instances in which a public university faculty member‘s assigned duties include a specific role in declaring or administering university policy, as opposed to scholarship or teaching. In that circumstance, Garcetti may apply to the specific instances of the faculty member‘s speech carrying out that duty.“).
Freedom of the press holds an equally exalted place in the First Amendment firmament. See, e.g., Neb. Press Ass‘n v. Stuart, 427 U.S. 539, 548 (1976) (“‘Our liberty depends on the freedom of the press, and that cannot be limited without being lost . . . .‘” (omission in original) (quoting 9 PAPERS OF THOMAS JEFFERSON 239 (J. Boyd ed., 1954))); N.Y. Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J., concurring) (“In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors.“); Time, Inc. v. Hill, 385 U.S. 374, 389 (1967) (“A broadly defined freedom of the press assures the maintenance of our political system and an open society.“); De Jonge v. Oregon, 299 U.S. 353, 365 (1937) (“[I]mperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion . . . . Therein lies the security of the Republic, the very foundation of constitutional government.“); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713 (1931) (“‘The liberty of the press is indeed essential to the nature of the free state [and] consists in laying no previous restraints upon publications[.]‘” (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *151, *152)). Thus, like the speech of government-employed academics, the speech of government-employed editors and journalists “implicates additional constitutional interests” not fully accounted for by Garcetti and suggests another potential limitation on the reach of Garcetti‘s restrictive employee-speech doctrine. 547 U.S. at 425.
The first step of the Pickering analysis—determining whether speech involves a matter of public concern—is an “analysis” that “must take into account ‘the content, form, and context’ of the employee‘s speech, ‘as revealed by the whole record.‘” LeFande v. District of Columbia (“LeFande I“), 613 F.3d 1155, 1159 (D.C. Cir. 2010) (quoting Connick, 461 U.S. at 147-48). Generally, “‘speech relates to a matter of public concern’ if it is ‘of political, social, or other concern to the community,‘” id. (quoting Hall v. Ford, 856 F.2d 255, 259 (D.C. Cir. 1988)), with particular consideration given to “speech that concerns issues about which information is needed or appropriate to enable members of society to make informed decisions about the operation of their government,” id. (internal quotations omitted); see also Demers, 746 F.3d at 415 (adopting a “liberal construction of what an issue of public concern is under the First Amendment” (internal quotations omitted)).
At the second step, in balancing the employee‘s interest in protected speech against the government‘s interest in promoting efficiency, courts consider “‘whether the [speech] impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker‘s duties or interferes with the regular operation of the enterprise,‘” LeFande v. District of Columbia (“LeFande II“), 841 F.3d 485, 494 (D.C. Cir. 2016) (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)), in addition to “the content, manner, time and place of the speech,” O‘Donnell v. Barry, 148 F.3d 1126, 1135 (D.C. Cir. 1998) (citing Connick, 461 U.S. at 152-53). The D.C. Circuit has applied a sliding-scale approach at this stage, under which “a ‘stronger showing’ of interference with the employer‘s operation ‘may be necessary if the employee‘s speech more substantially involve[s] matters of public concerns.‘” LeFande II, 841 F.3d at 494 (quoting Connick, 461 U.S. at 152).
When an employee brings a pre-enforcement or other challenge to an employer‘s “generally applicable” statute, regulation, policy, or practice, “as opposed to a particularized disciplinary action,” additional considerations inform the second step of the Pickering analysis. Weaver, 87 F.3d at 1439. For example, the court should weigh the relevant First Amendment interests of “present and future employees,” as well as the interest of “potential audiences” in having access to a diverse array of expression. United States v. Nat‘l Treasury Emps. Union (“NTEU“), 513 U.S. 454, 468 (1995). In addition, the court should evaluate the potential negative impacts of prior restraints on speech. Weaver, 87 F.3d at 1439-40. These include any chilling of speech, see, e.g., NTEU, 513 U.S. at 468-69, grants to the employer of limitless discretion to approve or disapprove of speech that invite the potential for viewpoint discrimination, see, e.g., Sanjour v. EPA, 56 F.3d 85, 96-97 (D.C. Cir. 1995) (en banc), and the risk of self-censorship by employees, see, e.g., Harman v. City of New York, 140 F.3d 111, 120 (2d Cir. 1998); see also Am. Fed‘n of Gov‘t Emps. v. District of Columbia, No. 05-0472 (JDB), 2005 WL 1017877, at *7-8 (D.D.C. May 2, 2005). Finally, with respect to pre-enforcement challenges, the D.C. Circuit has established the proper balance between the employee‘s and the employer‘s respective interests: to pass constitutional muster, the challenged rule must be no more restrictive than “‘reasonably necessary to protect’ various government interests.” Weaver, 87 F.3d at 1436 (quoting NTEU, 513 U.S. at 474); see also Latino Officers Ass‘n v. Safir, 170 F.3d 167, 171-72 (2d Cir. 1999) (same); Am. Fed‘n of Gov‘t Emps., 2005 WL 1017877, at *7-8.
c. Application to Chao‘s First Amendment Claim
Whether Chao has a likelihood of success on the merits of her First Amendment claim turns on whether the balance reached under the refined version of the Pickering analysis, described above, tilts in her favor as to the particular actions of defendants she challenges. Each step of the test is considered in turn.
i. Speech on “Matters of Public Concern”
All of the present and prospective speech Chao seeks to protect satisfies the first Pickering requirement, that employee speech must address “matters of public concern.” Pickering, 391 U.S. at 568. Her allegations regarding the creation and content of news coverage at VOA and the networks seek to protect speech that centers on current events and is therefore by definition “of political, social, or other concern to the community.” LeFande I, 613 F.3d at 1159 (internal quotations omitted). Likewise, her allegations related to potential retaliation against
employees for raising concerns about defendants’ management of USAGM, VOA, and the networks relate to speech “about the operation of . . . government.” Id. (internal quotations omitted).
ii. Balancing
At the second step in the Pickering analysis, because Chao challenges “generally applicable” policies and practices of
The IBA implements a carefully constructed balance between CEO authorities, intended to streamline agency management and promote efficiency, see
(I) Interference with USAGM and Network Personnel
First, Chao alleges that defendants’ (1) removal of USAGM General Counsel and author of the Firewall Rule David Kligerman; (2) refusal to sponsor or renew sponsorship of J-1 visas for VOA foreign journalists; and (3) reassignment of VOA Standards Editor Steve Springer and interference with Radio Free Asia‘s Executive Editor and VOA‘s New York Bureau Chief, see supra Part I.B.1, violate the First Amendment as acts of “governmental influence on a [media outlet‘s] staffing decisions,” Pls.’ Mem. at 30. The First Amendment protects private media outlets’ “choice of writers” because personnel decisions “affect[] the expressive content” of publications. McDermott v. Ampersand Publ‘g, LLC, 593 F.3d 950, 962 (9th Cir. 2010) (citing Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 572–73 (1995)). In the Pickering context, however, the impact of defendants’ efforts to exert control over VOA and the networks’ choice of journalistic personnel must be weighed against USAGM‘s interests in fulfilling
First, as to Kligerman, Chao argues that his placement on administrative leave “reflects [d]efendants’ true goal: to exert control over journalistic content without facing pushback.” Pls.’ Mem. at 32. Though that motive may well underlie defendants’ removal of Kligerman, the IBA vests the CEO with specific authority “[t]o appoint such personnel for the [CEO] as the [CEO] may determine to be necessary.”
Second, with respect to J-1 visa applications, plaintiffs contend that Pack‘s refusal to follow USAGM‘s longstanding practice of ministerial approval of the applications limits VOA‘s “ability to determine the content of [its] coverage,” in violation of journalists’ First Amendment rights. Pls.’ Mem. at 32. The BBG and Pack‘s immediate predecessor may well have had a practice of “ministerially” approving visa applications, as plaintiffs contend, id. at 11; see also id. at 10–11, which gave VOA greater control over hiring of foreign journalists, see id. at 32. Nonetheless, USAGM and its affiliated networks are authorized by statute to employ foreign nationals only “when suitably qualified United States citizens are not available,”
Pack‘s abandonment of the practice of rubber-stamping J-1 visas at VOA‘s request has undoubtedly had a chilling effect on foreign journalists employed by VOA, who are “incentiviz[ed] . . . to curry his favor” through their stories in order to preserve their visas. Pls.’ Mem. at 12. In assessing the constitutionality of an employer‘s prior restraint on speech, however, the degree of “interfer[ence] with the regular operation of the enterprise” posed by removal of the restraint must be considered, and the employer is owed “a wide degree of deference” as to its judgment in this regard. LeFande II, 841 F.3d at 494 (internal quotations omitted). The express statutory restriction on the hiring of foreign journalists, in combination with Pack‘s supervisory responsibilities, indicates that at least some active CEO involvement in the J-1 visa process is reasonably necessary for USAGM to operate in compliance with its statutory mandate. Pack‘s decision to review such applications on a case-by-case basis is therefore not “unwarranted” or unduly “burdensome” on VOA and the networks’ ability to retain
Third, in contrast to Pack‘s scrutiny of J-1 visas prior to authorizing, Pack‘s interference with individual editors and journalists at VOA and the networks falls outside the powers granted to him by the IBA and beyond USAGM‘s evaluative role. Except where other statutory provisions compel a different conclusion, the CEO‘s direct personnel authority is limited to the power “[t]o appoint such personnel for the [CEO] as the [CEO] may determine to be necessary” — in other words, to the appointment of USAGM, not VOA or network, personnel.
On the other side of the scales, Chao alleges that defendants’ actions concerning Springer, Radio Free Asia‘s Executive Editor, and VOA‘s New York Bureau Chief “hamper[]” the First Amendment right of VOA and network editors and journalists to control the content they produce by removing certain voices from the newsroom altogether. Pls.’ Mem. at 32. In particular, the removal and non-replacement of Springer, VOA‘s Standards Editor, poses an impediment to journalists’ First Amendment right to produce content “of the highest quality,” Pls.’ Mem. at 22, in furtherance of VOA‘s interest in maintaining “the highest journalistic credibility,” Navab-Safavi, 637 F.3d at 316; see also, e.g., Turner Decl. ¶¶ 22–23; Lennon Decl. ¶ 15; Walsh Decl. ¶¶ 17–18; Powers Decl. ¶ 27; Bennett Decl. ¶¶ 22–24; Doe Decl. ¶ 18; Roe Decl. ¶¶ 7–9. Without any showing of reasonable necessity, let alone a compelling one, to weigh against the First Amendment interests that defendants’ personnel actions against individual editors and journalists at VOA and the networks threaten, the personnel actions taken directly against such personnel are likely to be found unconstitutional.
(II) Investigation of and Interference with Journalistic Content
Next, Chao alleges that defendants’ efforts to interfere in the newsrooms at VOA and the networks through content control and investigations into supposed breaches of journalistic ethics are unconstitutional. See supra Part I.B.2. As to content control, she claims that defendants’ (1) decision to post U.S. government editorials on VOA‘s website, (2) requests to participate in news coverage meetings, and (3) efforts to oversee journalists’ assignments constitute unlawful attempts to influence content and chill speech. See supra Part I.B.2.
First, regarding the VOA editorials, the IBA specifically requires that U.S. international broadcasting “shall include” “editorials, broadcast by the Voice of America, which present the views of the United States Government.”
Second, defendants’ requests to participate in news coverage meetings and efforts to directly oversee journalists’ assignments constitute direct communications with network journalists that run the risk of impermissibly influencing content and chilling speech. Government action rises to the level of chilling speech “when it is likely to deter a person of ordinary firmness from the exercise of First Amendment rights.” Cooksey v. Futrell, 721 F.3d 226, 236 (4th Cir. 2013) (quoting Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011)). In response to the knowledge that defendants are monitoring VOA and network coverage and reaching out to individual journalists directly with questions about coverage, journalists and editors have already refrained from engaging in certain speech and are likely to continue doing so. They are less willing to take on controversial but important stories and exercise greater caution in making statements that may offend defendants, who have already made clear that speech insufficiently supportive of President Trump may prompt critical and adverse actions. See Doe Decl. ¶¶ 17–19; Roe Decl. ¶¶ 25–26.
Chao points to defendants’ investigations of VOA‘s Urdu service and VOA‘s video profiles of Mrs. Trump and Dr. Biden as paradigmatic examples of the unconstitutional pattern at work. In both cases, the VOA coverage, though not even critical of or otherwise unfavorable to President Trump, highlighted activities of President Trump‘s political opponent and his spouse, prompting defendants to seek out the individual employees behind the coverage, to interrogate their colleagues, and to impose penalties up to and including termination. See supra Part I.B.2. Not only were VOA employees thus penalized for their speech, as a result of the Urdu service investigation, other employees actually removed content perceived to be objectionable to defendants from VOA‘s website and defendant Dewey demanded that the Chief of the Urdu service identify content put out by the service that expressed viewpoints in opposition to the Black Lives Matter movement. See id.; see also Roe Decl. ¶ 13 (“As a senior newsroom manager wrote to Voice of America‘s leadership, ‘[w]e have reached a point where we, in the News Center, are at least as worried about self-censorship as we are about bias and think we need to be equally vigilant against both.‘” (alteration in original)). In addition to their chilling effects, these intrusions into the newsroom appear to be one-sided. While content perceived as “anti-Trump” or “pro-Biden” came under defendants’ scrutiny, similar coverage of President Trump by VOA‘s Spanish-language service was not investigated at all. See supra Part I.B.2. The investigations, then, not only penalize and chill speech, they appear to do so on the basis of perceived viewpoint. These considerations, which have sweeping implications for the current and prospective speech of present and future employees, weigh heavily against defendants in the Pickering analysis. See, e.g., NTEU, 513 U.S. at 468; Weaver, 87 F.3d at 1439; Sanjour, 56 F.3d at 96-97.
Defendants argue that these investigations and defendants’ other efforts to monitor
(III) Retaliatory Response to VOA Journalists’ Letter and Criticism of Pack‘s Federalist Radio Hour Interview
Chao further challenges defendants’ response to the VOA journalists’ letter, which, she claims, led to a series of threatening tweets posted on the USAGM spokesperson‘s official Twitter account and the retaliatory investigation of VOA‘s White House Bureau Chief, Steve Herman, who had organized the journalists. See supra Part I.B.3. The letter itself was an internal communication, made by VOA journalists, concerning defendants’ management of USAGM and its impact on their ability to perform their duties. See VOA Journalists Letter. As speech related to defendants’ management of USAGM and its impact on VOA journalists’ performance of their editorial or journalistic functions, not actually made as part of but rather to protect the performance of those duties, the letter may not be exempt from Garcetti under the framework articulated above. See supra Part III.A.2.b; Jangjoo, 244 F. Supp. 3d at 170 (treating a VOA employee‘s internal letter “air[ing] grievances” against his supervisors and alleging “mismanagement and other abuses of their authority” as speech made “in his official capacity“); cf. Adams, 640 F.3d at 563 (raising the possibility that public university professors’ speech about “university policy” might fall under Garcetti). If, upon a fuller examination of the merits, Garcetti were found to apply, the letter would likely be entitled to no First Amendment protection because, as a letter reporting alleged misconduct by USAGM management that interferes with VOA journalists’ ability to do their jobs, it was undertaken “pursuant to official duties.” See, e.g., Mpoy, 758 F.3d at 290–91 (“In our cases applying Garcetti, we have consistently held that a public employee speaks without First Amendment
Although the investigation into Herman was allegedly undertaken as an act of retaliation, see, e.g., Pls.’ Mem. at 35, as described above, it focused particularly on Herman‘s coverage of the Trump Administration and his politically oriented activities on social media, see supra Part I.B.3. The Herman investigation therefore posed the same risks of chilling speech and engaging in impermissible viewpoint discrimination introduced by defendants’ other investigations into individual stories or journalists. As in those cases, defendants had a less intrusive means of pursuing their concerns, through the investigative process set forth in USAGM‘s policy on potential ethics violations, at their disposal. See USAGM Procedures at 1–2. Therefore, while the organization and drafting of the journalists’ letter may not be protected under the First Amendment, defendants’ investigation of Herman 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, unlikely to survive Pickering.
(IV) Conflicts-of-Interest Policy
Chao‘s fourth set of allegations concerns the conflicts-of-interest policy announced by defendants, which she characterizes as unconstitutionally vague and overbroad. See supra Part I.B.4. The new policy in fact appears to be consistent with, or in some ways, more lenient than, standard journalistic practices with respect to conflicts of interest at credible news organizations.27 Plaintiffs target the policy largely because of the discretion allegedly conferred on defendants to identify conflicts and restrict speech on that basis, but in fact, the example conflicts the policy provides, described in detail above, see id.; Conflicts Policy at 3–4, outline the contours of its restrictions with sufficient clarity: journalists may not cover stories in which they have a personalized stake and may not report on political issues or figures
evenhandedly, it does not pose an undue burden on journalists’ speech beyond the restraint that compliance with any news organization‘s journalistic ethics policies would typically require.
Further, Pack, as CEO, is charged with “ensur[ing] that United States international broadcasting is conducted in accordance with the standards and principles contained” in
(V) Defendants’ Gross Mismanagement of USAGM
Finally, Chao contends that defendants’ “gross mismanagement” of USAGM, including budget freezes and revocation of delegated authorities allowing USAGM senior staff to spend money, hire, and enter contracts for essential supplies and services, see supra Part I.B.5, “prevent[s] [editors and journalists] from acting with journalistic independence or employing editorial discretion in violation of their First Amendment rights,” Pls.’ Mem. at 33. Plaintiffs do not make entirely clear how budget cuts and similar practical issues of agency management implicate their First Amendment rights. It cannot be that government employees, even those government employees carrying out editorial and journalistic functions, have a protected First Amendment right to the provision of funding and supplies to their agency at optimal levels. Obviously, even private sector journalists are subject to practical constraints on their First Amendment rights imposed by financial realities.
Plaintiffs’ real objection is to what they perceive as defendants’ “severely hamstringing [USAGM‘s] ability to fulfill its mandate.” Pls.’ Mem. at 15. Whether defendants’ management of USAGM represents good policy or effective agency oversight is, however, a separate — and nonjusticiable — issue from the First Amendment rights at issue in this litigation. Moreover, the IBA specifically grants the CEO authority “[t]o make and supervise grants and cooperative agreements for broadcasting and related activities,”
In sum, Chao has demonstrated a likelihood of success on the merits of her First Amendment claim insofar as she alleges that defendants have violated her and her colleagues’ First Amendment rights by taking or influencing personnel actions against individual journalists or editors, attempting directly to monitor VOA and network content through communications with individual editors or journalists, and undertaking their own investigations of alleged discrete breaches of journalistic ethics.
B. Absent Preliminary Relief, Chao and VOA Journalists Will Suffer Immediate, Irreparable Harm.
Chao and the VOA and network employees for whom she stands as representative will suffer immediate irreparable harm in the absence of an injunction. The D.C. Circuit has explained that “‘a prospective violation of a constitutional right constitutes irreparable injury for . . . purposes’ of ‘seeking equitable relief.‘” Karem v. Trump, 960 F.3d 656, 667 (D.C. Cir. 2020) (omission in original) (quoting Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)). Thus, “[t]he loss of First Amendment ‘freedoms, ‘for even minimal periods of time, unquestionably constitutes irreparable injury.‘“” Pursuing Am.‘s Greatness, 831 F.3d at 511 (quoting Mills v. District of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009)); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (same). As explained above, Chao and her colleagues are likely to succeed in showing that defendants’ actions have already violated and continue to violate their First Amendment rights because, among other unconstitutional effects, they result in self-censorship and the chilling of First Amendment expression. These current and anticipated harms are sufficient to demonstrate irreparable harm. See Archdiocese of Wash., 897 F.3d at 334 (“[T]he deprivation of constitutional rights constitutes irreparable injury . . . to the extent such deprivation is shown to be likely.“).29
C. The Balance of Equities and the Public Interest Favor Injunctive Relief.
Turning to the final factors, plaintiffs must demonstrate that the balance of the equities and the public interest weigh in favor of preliminary relief. That burden is met. The parties appear to agree, see Pls.’ Mem. at 16; Defs.’ Opp‘n at 39–43, that because the government is the non-movant, “the balance of equities and public interest[] factors . . . ‘merge,‘” Karem, 960 F.3d at 668 (quoting Nken v. Holder, 556 U.S. 418, 435 (2009)), and “generally call for weighing the benefits to the private party from obtaining an injunction against the harms to the government and the public from being enjoined,” Doe v. Mattis, 928 F.3d 1, 23 (D.C. Cir. 2019) (citing Pursuing Am.‘s Greatness, 831 F.3d at 511). That this factor favors plaintiffs is self-evident. ““[T]he Constitution is the ultimate expression of the public interest,” Gordon, 721 F.3d at 653 (quoting Llewelyn v. Oakland Cnty. Prosecutor‘s Off., 402 F. Supp. 1379, 1393 (E.D. Mich. 1975)), and consequently, government actions in contravention of the Constitution are “always contrary to the public interest,” id.
In the context of assessing plaintiffs’ request for relief from constitutional violations, defendants’ argument that the balance of equites and public interest “tip sharply in favor of the government” because injunctive relief would prevent Pack “from exercising effective control over an important tool of foreign policy,” Defs.’ Opp‘n at 39; see also id. at 39–41, is unavailing. Put simply, “[t]he Constitution does not permit [the government] to prioritize any policy goal over” constitutional rights. Gordon, 721 F.3d at 653. This maxim rings especially true here, where respect for First Amendment rights in fact aligns with, rather than frustrates, the foreign policy goal, set forth by Congress in the IBA, of “promot[ing] the right of freedom of opinion and expression, including the freedom ‘to seek, receive, and impart information and ideas through any media and regardless of frontiers.‘” IBA § 302(1);
IV. CONCLUSION
For the reasons explained, plaintiffs’ motion for a preliminary injunction is denied as to defendants’ alleged violations of the IBA, the APA, and Pack‘s fiduciary duties to USAGM and their alleged activities in excess of Pack‘s statutory authority. Plaintiffs’ motion is granted as to defendants’ alleged violations of the First Amendment, insofar as those violations relate to defendants’ taking or influencing personnel actions against individual journalists or editors, attempting to influence content through communications with individual journalists or editors, and investigating purported breaches of journalistic ethics. Defendants will be preliminarily enjoined from continuing these activities.
An Order consistent with this Memorandum Opinion will be entered contemporaneously.
Date: November 20, 2020
BERYL A. HOWELL
Chief Judge
Notes
The reputational harm advanced by all six plaintiffs is also suspect in meeting the requisite injury in fact for jurisdictional purposes. While courts, including the Supreme Court and the D.C. Circuit, have recognized reputational harm as an injury in fact, see, e.g., Pls.’ Reply at 3-5 (collecting cases), reputational harm, like any other alleged injury, must be “concrete and particularized” to establish a cognizable injury in fact. Plaintiffs claim that they suffer concrete, particularized reputational harm “from [USAGM] serving as an organ of state media, as opposed to an independent journalist[ic] outlet,” Hr‘g Tr. at 24:19-20, and from “no longer being associated with a responsible media organization” as a result of defendants’ actions, id. at 25:3-4; see also Pls.’ Reply at 6 (alleging reputational harm “from being members of an organization that no longer supports journalistic independence“). This argument does not identify a particularized harm to plaintiffs’ reputations distinct from harm to the agency‘s reputation. Under plaintiffs’ theory, any employee of USAGM or its funded networks, and any employee of any other agency who disagrees with the incumbent Administration‘s policy or management decisions, could bring suit due to reputational harm being associated with controversial policies allegedly harming the reputation of the agency that spills over to taint the reputations of its employees. To avoid this consequence, plaintiffs argue that USAGM “is unlike any other federal agency,” Pls.’ Suppl. Mem. at 9, because, as a journalistic organization, USAGM‘s reputation for independence and integrity directly impacts the professional reputations of the journalists and other professionals it employs, see id.; Hr‘g Tr. at 24:19–25:4. While creative, this argument does not alleviate this concern. Further, the question remains whether plaintiffs’ alleged reputational harms, which manifest, if at all, as the result of third parties’ alleged negative reactions to defendants’ management of USAGM, see Pls.’ Reply at 3-6; Second Decl. of Shawn Powers ¶¶ 19-21, ECF No. 30-11, are “fairly traceable” to defendants’ actions, see Defs.’ Suppl. Mem. at 1-2, 4 (citing Cierco v. Mnuchin, 857 F.3d 407, 418 (D.C. Cir. 2017)). As Chao has Article III standing to bring plaintiffs’ claims, however, the issue of whether the plaintiffs’ reputational harm confers standing need not be resolved here.