Trump Appointee Unconstitutionally Interfered With VOA, Judge Rules

By David Folkenflik

Published November 21, 2020 at 8:31 AM PST

Chief U.S. District Judge for the District of Columbia Beryl Howell issued a preliminary injunction against Michael Pack and the U.S. Agency for Global Media from influencing any editorial decisions or personnel.

Updated at 3:09 p.m. ET

The chief executive over the Voice of America and its sister networks has acted unconstitutionally in investigating what he claimed was a deep-seated bias against President Trump by his own journalists, a federal judge has ruled.

Citing the journalists' First Amendment protections, U.S. Judge Beryl Howell on Friday evening ordered U.S. Agency for Global Media CEO Michael Pack to stop interfering in the news service's news coverage and editorial personnel matters. She struck a deep blow at Pack's authority to continue to force the news agency to cover the president more sympathetically.

Actions by Pack and his aides have likely "violated and continue to violate [journalists'] First Amendment rights because, among other unconstitutional effects, they result in self-censorship and the chilling of First Amendment expression," Howell wrote in her opinion. "These current and unanticipated harms are sufficient to demonstrate irreparable harm."

Trump nominated Pack to be chief executive of the U.S. Agency for Global Media more than two years ago, and the U.S. Senate finally confirmed him in June. Pack has since turned the agency upside down, firing and suspending top executives, reassigning Voice of America's top standards executive and initiating investigations of journalists for individual stories about the political campaign between Trump and Joe Biden, now the president-elect. Several contractors were dismissed; an editor was suspended.

Attention swung to various arms of VOA, including the French-to-Africa and Urdu language services, and its New York bureau chief. Senior aides to Pack — both political appointees with no experience in journalism — also urged the sidelining of Voice of America's White House bureau chief, Steve Herman, perhaps its most prominent journalist. They claimed, among other things, that Herman's tweets of people relaying criticism of the president betrays bias. Herman remains on the job.

Pack had announced in late October that he was scrapping a so-called "firewall" — protections for the newsroom from political interference. The regulation was written just before he took over by concerned agency officials to codify longstanding traditions that were also invoked by earlier federal laws.

On Friday, Howell pointed to those laws in ruling Pack's actions were unconstitutional.

USAGM has not responded to repeated requests for comment about the decision, but the director of VOA did.

"Editorial independence and journalistic integrity free of political interference are the core elements that sustain VOA and make us America's voice," Acting VOA Director Elez Biberaj said in a statement Saturday in response to the judge's ruling.

"A steady 83% of VOA's audience finds our journalism trustworthy. There are few, if any, media organizations that can claim such trust. I am proud of our journalists who continue to uphold VOA's traditions of providing our audience with accurate, objective and comprehensive reporting."

VOA and its sister networks — which include Radio Free Europe/Radio Liberty, Radio Free Asia, the Middle East Broadcasting Networks and the Office of Cuba Broadcasting — reach more than 350 million people overseas each week. Their aim is to present rigorous news coverage in countries that do not have robust news organizations or that crack down on a free press. They are also supposed to embody American values by modeling what a free press looks like, through fair coverage of U.S. society and political debate.

Former diplomats, USAGM officials and VOA journalists have told NPR that by calling its journalists biased and launching investigations, Pack had undermined its reporters abroad, giving despots license to dismiss or repress its reporting.

"The Court confirmed that the First Amendment forbids Mr. Pack and his team from attempting to take control of these journalistic outlets, from investigating their journalists for purported 'bias,' and from attempting to influence or control their reporting content," Lee Crain, a lead attorney for the executives who sued Pack, said in a written statement. "We are deeply grateful for Chief Judge Howell's opinion, which ensures that the journalists at Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, and their sister networks can rest assured that the First Amendment protects them from government efforts to control editorial and journalistic content."

In several instances, those investigations were conducted by two political appointees at USAGM: Frank Wuco, who circulated conspiracy theories as a conservative radio talk show host before becoming a Homeland Security official under Trump, and Samuel Dewey, an investigative attorney who previously worked for Republicans on Capitol Hill and has a strong pro-Trump Twitter feed. Dewey also made specific demands over coverage of fraught political issues, including the Black Lives Matter movement, according to materials in the legal challenge.

Kelu Chao, who functions as Voice of America's managing editor and is the news service's top nonpolitical executive, joined the lawsuit against Pack and the agency filed by several suspended USAGM executives. And she said in a sworn court document that journalists at VOA "have been have been excessively cautious, slow to produce stories, and afraid to run down important stories and leads — particularly about politically sensitive topics, no matter how important."

Attorneys from the U.S. Justice Department last week argued that the free speech protections of the First Amendment don't apply to employees of Voice of America, despite its mission, as they work for the government.

"Voice of America is a government agency; its speech, even in a journalistic capacity, is government speech," a team of federal attorneys led by acting U.S. Assistant Attorney General Jeffrey Clark wrote. "In sum, it is consistent with the Constitution for the CEO to control the content of the networks' broadcasts. The networks are not protected by the First Amendment, and Congress has not extended those protections to the networks by statute."

Howell, the chief U.S. District Court judge for the District of Columbia, rejected that reasoning and issued a preliminary injunction against Pack and USAGM from taking or influencing any editorial decisions or personnel. A half-dozen current employees at the agency and at Voice of America have told NPR they are concerned about what actions he might take before the Trump administration ends. They spoke on condition they not be named, pointing to the firings and suspensions under Pack.

In June, the Biden campaign told Vox that it intended to fire Pack; its ability to do so was cemented in part by a Supreme Court ruling won by the Trump administration to dismiss the head of the Consumer Financial Protection Bureau, even though it is an independent agency.

Disclosure: This story was reported by NPR media correspondent David Folkenflik and edited by NPR business desk editor Avie Schneider. Because of NPR CEO John Lansing's prior role as CEO of the U.S. Agency for Global Media, no senior news executive or corporate executive at NPR reviewed this story before it was published.