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APPEAL,JURY,TYPE-D

U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-02885-BAH

TURNER et al v. U.S. AGENCY FOR GLOBAL MEDIA et al Assigned to: Chief Judge Beryl A. Howell Case: 1:20-cv-01710-BAH
Case in other court: USCA, 20-05374 Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 10/08/2020 Jury Demand: Plaintiff Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff GRANT TURNER

represented by Joshua S. Lipshutz GIBSON, DUNN & CRUTCHER, LLP 1050 Connecticut Ave, NW 9th Floor Washington, DC 20036 (202) 955-8217 Email: jlipshutz@gibsondunn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexandra Grossbaum GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-4000 Email: agrossbaum@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED

Lauren Kole GIBSON, DUNN & CRUTCHER, LLP 1801 California Street Denver, CO 80202 303-298-5751

Email: lkole@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Ross Crain GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue 47th Floor New York City, NY 10166-0193 212-351-2454 Email: lcrain@gibsondunn.com ATTORNEY TO BE NOTICED
Mylan L. Denerstein GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue Ste 47th Floor New York, NY 10166 212-351-4000 Fax: 212-351-4035 Email: mdenerstein@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Zainab Naeem Ahmad GIBSON, DUNN & CRUTCHER, LLP 200 Park Avenue New York, NY 10166 212-351-2609 Fax: 212-817-9500 Email: zahmad@gibsondunn.com ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7804 Fax: (213) 229-6804 Email: tboutrous@gibsondunn.com ATTORNEY TO BE NOTICED

Plaintiff MARIE LENNON
Plaintiff SHAWN POWERS

represented by Joshua S. Lipshutz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Grossbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Kole (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Ross Crain (See above for address) ATTORNEY TO BE NOTICED
Mylan L. Denerstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zainab Naeem Ahmad (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Lipshutz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Grossbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Kole

Plaintiff MATTHEW WALSH

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Ross Crain (See above for address) ATTORNEY TO BE NOTICED
Mylan L. Denerstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zainab Naeem Ahmad (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Lipshutz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Grossbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Kole (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Ross Crain (See above for address) ATTORNEY TO BE NOTICED
Mylan L. Denerstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff HOANG OANH TRAN
Plaintiff KELU CHAO TERMINATED: 01/22/2021

Zainab Naeem Ahmad (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Lipshutz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Grossbaum (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lauren Kole (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Lee Ross Crain (See above for address) ATTORNEY TO BE NOTICED
Mylan L. Denerstein (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Zainab Naeem Ahmad (See above for address) ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Theodore J. Boutrous , Jr. (See above for address) ATTORNEY TO BE NOTICED

V. Defendant U.S. AGENCY FOR GLOBAL MEDIA
Defendant MICHAEL PACK
Defendant SAMUEL E. DEWEY

represented by Christopher M. Lynch U.S. DEPARTMENT OF JUSTICE Federal Programs Branch 1100 L St., NW Washington, DC 20005 (202) 353-4537 Fax: (202) 616-8470 Email: christopher.m.lynch@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp U.S. DEPARTMENT OF JUSTICE 1100 L Street NW Washington, DC 20005 (202) 514-2071 Fax: (202) 616-8470 Email: michael.f.knapp@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address)

Defendant DIANE CULLO
Defendant EMILY NEWMAN
Defendant MORVARED NAMDARKHAN also known as MORA NAMDAR
Defendant FRANK WUCO

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher M. Lynch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Fraser Knapp (See above for address)

Amicus REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS
Amicus ELIOT ENGEL

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bruce D. Brown REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St, NW Suite 1020 Washington, DC 20005 (202) 795-9301 Fax: (202) 795-9310 Email: bbrown@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
KatieLynn Boyd Townsend REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St, NW Suite 1020 Washington, DC 20005 (202) 795-9300 Fax: (202) 795-9310 Email: ktownsend@rcfp.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel Rottman REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th St. NW Ste 1020 Washington, DC 20005 202-795-9316 Email: grottman@rcfp.org ATTORNEY TO BE NOTICED
represented by Joshua Adam Matz KAPLAN HECKER & FINK LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 (212) 763-0883

Email: JMATZ@KAPLANHECKER.COM TERMINATED: 01/15/2021
Matthew J. Craig KAPLAN HECKER & FINK LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0883 Fax: 212-564-0883 Email: mcraig@kaplanhecker.com PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Hecker KAPLAN HECKER & FINK LLP 350 Fifth Avenue Suite 7110 New York, NY 10118 212-763-0883 Fax: 212-564-0883 Email: shecker@kaplanhecker.com PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 10/08/2020
10/08/2020

# Docket Text

COMPLAINT against DIANE CULLO, SAMUEL E. DEWEY,

1

MORVARED NAMDARKHAN, EMILY NEWMAN,

MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA,

FRANK WUCO with Jury Demand ( Filing fee $ 400 receipt

number ADCDC-7692377) filed by SHAWN POWERS, MARIE

LENNON, GRANT TURNER, MATTHEW WALSH, HOANG

OANH TRAN. (Attachments: # 1 Civil Cover Sheet,

# 2 Summons - U.S. Agency for Global Media, # 3 Summons -

Michael Pack, # 4 Summons - Samuel E. Dewey, # 5 Summons -

Diane Cullo, # 6 Summons - Emily Newman, # 7 Summons -

Morvared Namdarkhan a/k/a Mora Namdar, # 8 Summons -

Frank Wuco)(Boutrous, Theodore) (Entered: 10/08/2020)

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NOTICE of Appearance by Theodore J. Boutrous, Jr on behalf of

MARIE LENNON, SHAWN POWERS, HOANG OANH

TRAN, GRANT TURNER, MATTHEW WALSH (Boutrous,

Theodore) (Entered: 10/08/2020)

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NOTICE of Appearance by Lee Ross Crain on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Crain, Lee) (Entered: 10/08/2020)
NOTICE of Appearance by Joshua S. Lipshutz on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Lipshutz, Joshua) (Entered: 10/08/2020)
NOTICE OF RELATED CASE by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH. Case related to Case No. 20-cv-1710. (Boutrous, Theodore) (Entered: 10/08/2020)
Ex Parte MOTION for Leave to File Complaint Using Counsel's Address in Violation of LCVR 5.1(e) by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Declaration of Lee R. Crain, # 2 Text of Proposed Order)(Crain, Lee) (Entered: 10/08/2020)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameMylan L. Denerstein, Filing fee $ 100, receipt number ADCDC7693018. Fee Status: Fee Paid. by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Exhibit A- Declaration of Mylan L. Denerstein, # 2 Text of Proposed Order)(Crain, Lee) (Entered: 10/08/2020)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameLauren M. Kole, Filing fee $ 100, receipt number ADCDC7693035. Fee Status: Fee Paid. by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Exhibit A- Declaration of Lauren M. Kole, # 2 Text of Proposed Order)(Crain, Lee) (Entered: 10/08/2020)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameAlexandra L. Grossbaum, Filing fee $ 100, receipt number ADCDC-7693117. Fee Status: Fee Paid. by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Exhibit ADeclaration of Alexandra L. Grossbaum, # 2 Text of Proposed Order)(Crain, Lee) (Entered: 10/08/2020)

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Case Assigned to Chief Judge Beryl A. Howell. (adh, ) (Entered: 10/09/2020)
SUMMONS (7) Issued Electronically as to DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO. (Attachment: # 1 Notice and Consent)(adh, ) (Entered: 10/09/2020)
STANDING ORDER. Signed by Chief Judge Beryl A. Howell on October 10, 2020. (lcbah2) (Entered: 10/13/2020)
MOTION for Preliminary Injunction by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1
Memorandum in Support, # 2 Declaration of Lee R. Crain, # 3 Exhibit 1 to Crain Declaration, # 4 Exhibit 2 to Crain Declaration, # 5 Exhibit 3 to Crain Declaration, # 6 Exhibit 4 to Crain Declaration, # 7 Exhibit 5 to Crain Declaration, # 8 Exhibit 6 to Crain Declaration, # 9 Exhibit 7 to Crain Declaration, # 10 Exhibit 8 to Crain Declaration, # 11 Exhibit 9 to Crain Declaration, # 12 Exhibit 10 to Crain Declaration, # 13 Exhibit 11 to Crain Declaration, # 14 Exhibit 12 to Crain Declaration, # 15 Exhibit 13 to Crain Declaration, # 16 Exhibit 14 to Crain Declaration, # 17 Exhibit 15 to Crain Declaration, # 18 Exhibit 16 to Crain Declaration, # 19 Exhibit 17 to Crain Declaration, # 20 Exhibit 18 to Crain Declaration, # 21 Exhibit 19 to Crain Declaration, # 22 Exhibit 20 to Crain Declaration, # 23 Exhibit 21 to Crain Declaration, # 24 Exhibit 22 to Crain Declaration, # 25 Exhibit 23 to Crain Declaration, # 26 Exhibit 24 to Crain Declaration, # 27 Exhibit 25 to Crain Declaration, # 28 Exhibit 26 to Crain Declaration, # 29 Exhibit 27 to Crain Declaration, # 30 Exhibit 28 to Crain Declaration, # 31 Exhibit 29 to Crain Declaration, # 32 Exhibit 30 to Crain Declaration, # 33 Exhibit 31 to Crain Declaration, # 34 Exhibit 32 to Crain Declaration, # 35 Exhibit 33 to Crain Declaration, # 36 Exhibit 34 to Crain Declaration, # 37 Exhibit 35 to Crain Declaration, # 38 Exhibit 36 to Crain Declaration, # 39 Exhibit 37 to Crain Declaration, # 40 Exhibit 38 to Crain Declaration, # 41 Exhibit 39 to Crain Declaration, # 42 Exhibit 40 to Crain Declaration, # 43 Exhibit 41 to Crain Declaration, # 44 Exhibit 42 to Crain Declaration, # 45 Exhibit 43 to Crain Declaration, # 46 Exhibit 44 to Crain Declaration, # 47 Exhibit 45 to Crain Declaration, # 48 Exhibit 46 to Crain Declaration, # 49 Exhibit 47 to Crain Declaration, # 50 Exhibit 48 to Crain Declaration, # 51 Exhibit 49 to Crain

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Declaration, # 52 Exhibit 50 to Crain Declaration, # 53 Exhibit 51 to Crain Declaration, # 54 Exhibit 52 to Crain Declaration, # 55 Exhibit 53 to Crain Declaration, # 56 Exhibit 54 to Crain Declaration, # 57 Exhibit 55 to Crain Declaration, # 58 Exhibit 56 to Crain Declaration, # 59 Exhibit 57 to Crain Declaration, # 60 Declaration of Amanda Bennett, # 61 Declaration of Grant Turner, # 62 Declaration of John Coe, # 63 Declaration of John Doe, # 64 Declaration of John Roe, # 65 Declaration of Kathleen Carroll, # 66 Declaration of Marie Lennon, # 67 Declaration of Matthew Walsh, # 68 Declaration of Oanh Tran, # 69 Declaration of Sandy Sugawara, # 70 Declaration of Shawn Powers, # 71 Declaration of Steve Capus, # 72 Text of Proposed Order)(Boutrous, Theodore) (Entered: 10/13/2020)
MINUTE ORDER (paperless) DIRECTING the parties to confer and jointly submit to the Court, by 10:00 AM on October 16, 2020, a proposed schedule for briefing and a hearing on plaintiffs' 12 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on October 14, 2020. (lcbah3) (Entered: 10/14/2020)
MINUTE ORDER (paperless) GRANTING plaintiffs' 6 Ex Parte Motion for Leave to File Complaint Using Counsel's Address in Violation of Local Civil Rule 5.1(e). It is hereby ORDERED that plaintiffs' complaint is accepted and deemed filed, and plaintiffs may proceed using their counsel's address in all submissions connected to this action until such time as this Court orders, or the parties stipulate, otherwise. Signed by Chief Judge Beryl A. Howell on October 14, 2020. (lcbah3) (Entered: 10/14/2020)
MINUTE ORDER (paperless) GRANTING plaintiffs' 7 Motion for Admission Pro Hac Vice. Ms. Denerstein may enter an appearance pro hac vice for the purpose of representing plaintiffs in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on October 14, 2020. (lcbah3) (Entered: 10/14/2020)
MINUTE ORDER (paperless) GRANTING plaintiffs' 8 Motion for Admission Pro Hac Vice. Ms. Kole may enter an appearance pro hac vice for the purpose of representing plaintiffs in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on October 14, 2020. (lcbah3) (Entered: 10/14/2020)

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MINUTE ORDER (paperless) GRANTING plaintiffs' 9 Motion for Admission Pro Hac Vice. Ms. Grossbaum may enter an appearance pro hac vice for the purpose of representing plaintiffs in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on October 14, 2020. (lcbah3) (Entered: 10/14/2020)
Set/Reset Deadlines: Joint response to Order of the Court due by 10:00 AM on 10/16/2020. (ztg) (Entered: 10/15/2020)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameZainab N. Ahmad, Filing fee $ 100, receipt number ADCDC7717314. Fee Status: Fee Paid. by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Exhibit A- Declaration of Zainab N. Ahmad, # 2 Text of Proposed Order)(Crain, Lee) (Entered: 10/15/2020)
MINUTE ORDER (paperless) GRANTING plaintiffs' 13 Motion for Admission Pro Hac Vice. Ms. Ahmad may enter an appearance pro hac vice for the purpose of representing plaintiffs in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on October 15, 2020. (lcbah3) (Entered: 10/15/2020)
NOTICE of Appearance by Mylan L. Denerstein on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Denerstein, Mylan) (Entered: 10/15/2020)
NOTICE of Appearance by Michael Fraser Knapp on behalf of All Defendants (Knapp, Michael) (Entered: 10/16/2020)
NOTICE \ JOINT NOTICE IN RESPONSE TO COURT'S MINUTE ORDER DATED OCTOBER 14, 2020 by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH re Order, (Boutrous, Theodore) (Entered: 10/16/2020)
MINUTE ORDER (paperless), upon consideration of the
parties' 16 Joint Notice in Response to Court's Minute Order Dated October 14, 2020, (1) ISSUING the following SCHEDULING ORDER: (a) by October 26, 2020, defendants shall file their opposition to plaintiffs' 12 Motion for Preliminary

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Injunction and (b) by October 30, 2020, plaintiffs shall file their reply in support of their 12 Motion for Preliminary Injunction; and (2) DIRECTING the parties to appear at 10:00 AM on November 5, 2020 for a hearing before Chief Judge Beryl A. Howell via videoconference. Videoconference connection details will be provided to counsel by the deputy clerk. Signed by Chief Judge Beryl A. Howell on October 16, 2020. (lcbah3) (Entered: 10/16/2020)
Set/Reset Deadlines/Hearings: Defendants' opposition to plaintiffs' Motion for Preliminary Injunction due by 10/26/2020; plaintiffs' reply due by 10/30/2020; Motion Hearing scheduled for 11/5/2020, at 10:00 AM before Chief Judge Beryl A. Howell. (ztg) (Entered: 10/16/2020)
NOTICE of Appearance by Alexandra Grossbaum on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Grossbaum, Alexandra) (Entered: 10/20/2020)
NOTICE of Appearance by Lauren Kole on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Kole, Lauren) (Entered: 10/20/2020)
RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/16/2020., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/16/2020. ( Answer due for ALL FEDERAL DEFENDANTS by 12/15/2020.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. SAMUEL E. DEWEY served on 10/15/2020; MORVARED NAMDARKHAN served on 10/15/2020; EMILY NEWMAN served on 10/15/2020; MICHAEL PACK served on 10/15/2020; U.S. AGENCY FOR GLOBAL MEDIA served on 10/15/2020; FRANK WUCO served on 10/15/2020 (Crain, Lee) (Entered: 10/21/2020)
CERTIFICATE OF SERVICE by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH re 12 MOTION for Preliminary Injunction . (Crain, Lee) (Entered: 10/21/2020)
CERTIFICATE OF SERVICE by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER,

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MATTHEW WALSH re 12 MOTION for Preliminary Injunction . (Crain, Lee) (Entered: 10/21/2020)
Consent MOTION for Leave to File Brief as Amici Curiae Supporting Plaintiffs' Motion for a Preliminary Injunction by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Attachments: # 1 Brief of Amici Curiae)(Rottman, Gabriel) (Entered: 10/22/2020)
NOTICE of Appearance by Gabriel Rottman on behalf of REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Rottman, Gabriel) (Entered: 10/22/2020)
NOTICE of Appearance by KatieLynn Boyd Townsend on behalf of REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Townsend, KatieLynn) (Entered: 10/22/2020)
MINUTE ORDER (paperless) GRANTING proposed amici
curiae's 22 Consent Motion for Leave to File Brief of the Reporters Committee for Freedom of the Press and 16 Media Organizations as Amici Curiae Supporting Plaintiffs' Motion for a Preliminary Injunction and DIRECTING the Clerk of Court to docket the Brief of the Reporters Committee for Freedom of the Press and 16 Media Organizations as Amici Curiae Supporting Plaintiffs' Motion for a Preliminary Injunction, ECF No. 22-1. Signed by Chief Judge Beryl A. Howell on October 23, 2020. (lcbah3) (Entered: 10/23/2020)
NOTICE of Appearance by Bruce D. Brown on behalf of REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (Brown, Bruce) (Entered: 10/23/2020)
AMICUS BRIEF by REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS. (zrdj) (Entered: 10/26/2020)
Memorandum in opposition to re 12 MOTION for Preliminary Injunction filed by DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA,
FRANK WUCO. (Attachments: # 1 Declaration of Michael
Knapp, # 2 Exhibit 1 to Knapp Decl. (USAGM Final Rule),
# 3 Declaration of Michael Pack, # 4 Exhibit 1 to Pack Decl. (2016 VOA Report), # 5 Exhibit 2 to Pack Decl. (Aug 5, 2020

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STA Transcript), # 6 Text of Proposed Order)(Knapp, Michael) (Entered: 10/26/2020)
NOTICE of Appearance by Christopher M. Lynch on behalf of All Defendants (Lynch, Christopher) (Entered: 10/27/2020)
Consent MOTION for Extension of Time to File Response/Reply as to 12 MOTION for Preliminary Injunction by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Attachments: # 1 Text of Proposed Order)(Boutrous, Theodore) (Entered: 10/28/2020)
MINUTE ORDER (paperless) GRANTING plaintiffs' 29 Consent Motion for Extension of Time to File Response/Reply and MODIFYING the Scheduling Order previously issued in this case, see Min. Order (Oct. 16, 2020), as follows: by 2:00 PM on November 2, 2020, plaintiffs shall file their reply in support of their 12 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on October 28, 2020. (lcbah3) (Entered: 10/28/2020)
Set/Reset Deadlines: Reply in support of 12 Motion for Preliminary Injunction due by 2:00 PM on 11/2/2020. (ztg) (Entered: 10/29/2020)
REPLY to opposition to motion re 12 MOTION for Preliminary Injunction filed by MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH. (Attachments: # 1 Declaration of Lee Crain, # 2 Exhibit 1 of Crain Declaration - Background, # 3 Exhibit 2 of Crain Declaration - Statement, # 4 Exhibit 3 of Crain Declaration Statement, # 5 Exhibit 4 of Crain Declaration - Statement, # 6 Exhibit 5 of Crain Declaration - Statement, # 7 Exhibit 6 of Crain Declaration - Article, # 8 Declaration of Nicholas J. Cull, # 9 Exhibit A of Cull Declaration - Resume, # 10 Declaration of Grant Turner, # 11 Declaration of Shawn Powers)(Boutrous, Theodore) (Entered: 11/02/2020)
NOTICE of Appearance by Joshua Adam Matz on behalf of Eliot Engel (Matz, Joshua) (Entered: 11/03/2020)
MOTION for Leave to Appear Pro Hac Vice :Attorney NameSean Hecker, Filing fee $ 100, receipt number ADCDC-7793789. Fee Status: Fee Paid. by Eliot Engel (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Matz, Joshua) (Entered: 11/03/2020)

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MOTION for Leave to Appear Pro Hac Vice :Attorney NameMatthew J. Craig, Filing fee $ 100, receipt number ADCDC7793862. Fee Status: Fee Paid. by Eliot Engel (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Matz, Joshua) (Entered: 11/03/2020)
MOTION for Leave to File Brief of Congressman Eliot Engel as Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction by Eliot Engel (Attachments: # 1 Exhibit A - Proposed Brief, # 2 Text of Proposed Order)(Matz, Joshua) (Entered: 11/03/2020)
MINUTE ORDER (paperless) proposed amicus curiae's 32 Motion for Admission Pro Hac Vice. Mr. Hecker may enter an appearance pro hac vice for the purpose of representing proposed amicus curiae in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on November 3, 2020. (lcbah3) (Entered: 11/03/2020)
MINUTE ORDER (paperless) GRANTING proposed amicus curiae's 33 Motion for Admission Pro Hac Vice. Mr. Craig may enter an appearance pro hac vice for the purpose of representing proposed amicus curiae in this action. Counsel should register for e-filing via PACER and file a notice of appearance pursuant to LCvR 83.6(a). Click for instructions. Signed by Chief Judge Beryl A. Howell on November 3, 2020. (lcbah 3) (Entered: 11/03/2020)
MINUTE ORDER (paperless) GRANTING proposed amicus curiae's 34 Motion for Leave to File Brief of Congressman Eliot Engel as Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction and DIRECTING the Clerk of Court to docket the Brief of Congressman Eliot Engel as Amicus Curiae in Support of Plaintiffs' Motion for a Preliminary Injunction, ECF No. 34-1. Signed by Chief Judge Beryl A. Howell on November 3, 2020. (lcbah3) (Entered: 11/03/2020)
AMICUS BRIEF by ELIOT ENGEL. (zrdj) (Entered: 11/04/2020)
NOTICE of Appearance by Zainab Naeem Ahmad on behalf of MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH (Ahmad, Zainab) (Entered: 11/04/2020)

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AMENDED COMPLAINT against DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO with Jury Demand filed by SHAWN POWERS, MARIE LENNON, GRANT TURNER, MATTHEW WALSH, HOANG OANH TRAN, KELU CHAO. (Attachments: # 1 Exhibit 1 - Redline version of the Amended Complaint)(Boutrous, Theodore) (Entered: 11/04/2020)
NOTICE OF JOINDER OF PLAINTIFF KELU CHAO IN PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION by KELU CHAO, MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH re 12 MOTION for Preliminary Injunction (Boutrous, Theodore) (Entered: 11/04/2020)
Minute Entry for proceedings held before Chief Judge Beryl A. Howell: Motion Hearing held on 11/5/2020 re 12 MOTION for Preliminary Injunction filed by MARIE LENNON, SHAWN POWERS, GRANT TURNER, HOANG OANH TRAN, MATTHEW WALSH. Supplementary briefing by the government due by 5:00 PM on November 10, 2020; plaintiffs' response to the government's supplementary briefing due by 5:00 PM on November 12, 2020. (Court Reporter Elizabeth SaintLoth.) (ztg) (Entered: 11/05/2020)
TRANSCRIPT OF PROCEEDINGS, before Chief Judge Beryl A. Howell, held on 11-05-2020. Page Numbers: 1 - 85. Date of Issuance: 11-07-2020. Court Reporter: Elizabeth SaintLoth; Telephone number: 202-354-3242. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multipage, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

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Redaction Request due 11/28/2020. Redacted Transcript Deadline set for 12/8/2020. Release of Transcript Restriction set for 2/5/2021.(Saint-Loth, Elizabeth) (Entered: 11/07/2020)
NOTICE of Appearance by Sean Hecker on behalf of ELIOT ENGEL (Hecker, Sean) (Entered: 11/09/2020)
NOTICE of Appearance by Matthew J. Craig on behalf of ELIOT ENGEL (Craig, Matthew) (Entered: 11/09/2020)
SUPPLEMENTAL MEMORANDUM to re 12 MOTION for Preliminary Injunction filed by DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO. (Knapp, Michael) (Entered: 11/10/2020)
SUPPLEMENTAL MEMORANDUM to re 12 MOTION for Preliminary Injunction filed by KELU CHAO, MARIE LENNON, SHAWN POWERS, HOANG OANH TRAN, GRANT TURNER, MATTHEW WALSH. (Attachments: # 1 Second Declaration of Kelu Chao, # 2 Exhibit A to Chao Declaration, # 3 Text of Proposed Order)(Boutrous, Theodore) (Entered: 11/12/2020)
ORDER GRANTING IN PART and DENYING IN PART plaintiffs' 12 Motion for Preliminary Injunction. See Order for further details. Signed by Chief Judge Beryl A. Howell on November 20, 2020. (lcbah3) (Entered: 11/20/2020)
MEMORANDUM OPINION regarding plaintiffs' 12 Motion for Preliminary Injunction. Signed by Chief Judge Beryl A. Howell on November 20, 2020. (lcbah3) (Entered: 11/20/2020)
NOTICE OF APPEAL TO DC CIRCUIT COURT as to 44
Order on Motion for Preliminary Injunction by U.S. AGENCY FOR GLOBAL MEDIA, MORVARED NAMDARKHAN, MICHAEL PACK, DIANE CULLO, SAMUEL E. DEWEY, EMILY NEWMAN, FRANK WUCO. Fee Status: No Fee Paid. Parties have been notified. (Knapp, Michael) (Entered: 12/17/2020)
Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 46 Notice of Appeal to DC Circuit Court,. (eg) (Entered: 12/18/2020)

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USCA Case Number 20-5374 for 46 Notice of Appeal to DC Circuit Court, filed by EMILY NEWMAN, DIANE CULLO, MICHAEL PACK, MORVARED NAMDARKHAN, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO, SAMUEL E. DEWEY. (zjf) (Entered: 12/20/2020)
Joint MOTION to Stay Proceedings Pending Appeal by DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO (Attachments: # 1 Text of Proposed Order)(Knapp, Michael) (Entered: 12/21/2020)
MINUTE ORDER (paperless) GRANTING the parties' 48
Joint Motion to Stay Proceedings Pending Appeal. The parties shall, within thirty (30) days of the D.C. Circuit's resolution of this appeal, file a joint status report proposing a schedule to govern further proceedings in this matter. Signed by Chief Judge Beryl A. Howell on December 21, 2020. (lcbah3) (Entered: 12/21/2020)
NOTICE Pursuant to D.C. Circuit Rule 47.2(a) by DIANE CULLO, SAMUEL E. DEWEY, MORVARED NAMDARKHAN, EMILY NEWMAN, MICHAEL PACK, U.S. AGENCY FOR GLOBAL MEDIA, FRANK WUCO
(Attachments: # 1 Exhibit Letter to Clerk of Court)(Knapp, Michael) (Entered: 12/29/2020)
NOTICE OF WITHDRAWAL OF APPEARANCE as to ELIOT ENGEL. Attorney Joshua Adam Matz terminated. (Matz, Joshua) (Entered: 01/15/2021)
NOTICE of Voluntary Dismissal by KELU CHAO (Boutrous, Theodore) (Entered: 01/20/2021)
MINUTE ORDER (paperless) DIRECTING the Clerk to
terminate plaintiff Kelu Chao, in light of her 51 Notice of Voluntary Dismissal Without Prejudice. Federal Rule of Civil Procedure 41(a)(1)(A)(i) permits a plaintiff to voluntarily dismiss a civil suit without a court order by filing "a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Accordingly, plaintiff Kelu Chao is dismissed without prejudice. Signed by Chief Judge Beryl A. Howell on January 21, 2021. (lcbah3) (Entered: 01/21/2021)

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 Case 1:20-cv-02885-BAH Document 1 Filed 10/08/20 Page 1 of 84

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRANT TURNER c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
MARIE LENNON c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
SHAWN POWERS c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
MATTHEW WALSH c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
HOANG OANH TRAN c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
Plaintiffs,
v.
U.S. AGENCY FOR GLOBAL MEDIA Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
MICHAEL PACK Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
SAMUEL E. DEWEY, Wilbur J. Cohen Federal Building 330 Independence Avenue SW

Case No. 20-cv-2885 COMPLAINT

Case 1:20-cv-02885-BAH Document 1 Filed 10/08/20 Page 2 of 84
Washington, DC 20407;
DIANE CULLO Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
EMILY NEWMAN Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
MORVARED NAMDARKHAN (aka MORA NAMDAR) Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
FRANK WUCO Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407; Defendants.
INTRODUCTION 1. This case is about the insidious politicization of journalism that threatens not only
our nation’s publicly funded, independent media but also our nation’s reputation for modeling
and defending a free press around the world. In the United States, publicly funded journalism is
protected from government interference by a firewall much like privately funded journalism is
protected from corporate interference by similar mechanisms. As a former Director of Voice of
America recently explained to the House Foreign Affairs Committee, “a firewall of sorts . . .
exists in virtually every news organization . . . to allow journalists to operate independently
without reference to any kind of pressure.”1 Unlike in the private sector, the firewall protecting
1 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Amanda Bennett).
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publicly funded journalism is enshrined in law: it stands between government officials on one side, and reporters on the other, protecting against even the perception that iconic outlets like Voice of America, Radio Free Europe, and Radio Free Asia, are mere mouthpieces for the U.S. government. The firewall protects the credibility of these networks, which is crucial to completing their mission of spreading free speech and independent media to audiences living under oppressive regimes across the globe.
2. Defendants are the recently installed leaders of the United States Agency for Global Media (“USAGM”), which supports Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and other independent news networks. USAGM networks have a weekly audience of over 350 million people, many of whom live in countries like Iran and China where the notion of a free press, and of credible, reliable journalism, is entirely foreign.
3. The USAGM networks export America’s greatest products: free speech and freedom of the press. The networks serve the vital national goal of combatting disinformation worldwide—fighting propaganda and deception with truth and shoe-leather journalism. It was Radio Free Asia, for instance, that broke the story of how China had underreported COVID-19 deaths in Wuhan, simply by calling funeral parlors and adding up the numbers. And it was Voice of America and Radio Free Europe/Radio Liberty that created a 24/7 Russian-language global digital network to counter Russian propaganda worldwide.
4. As Defendants seek to tear down the integrity and credibility of the USAGM networks, the vacuum will be filled by propagandists whose messages will monopolize global airwaves without Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle East Broadcasting Networks, and Radio y Television Martì as credible voices to the contrary.
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5. The USAGM networks’ ability to maintain credibility amongst their worldwide

audience depends significantly on their ability to demonstrate their independence from the U.S.

government. The firewall is so important to USAGM’s model, in fact, that it has been codified

into law: Section 6204(b) of Title 22 of the United States Code provides that the Chief Executive

Officer of USAGM “shall respect the professional independence and integrity of” Voice of

America and the other USAGM networks. And Section 531.3(c) of Title 22 of the Code of

Federal Regulations provides that the required “firewall” prohibits “any person within the

Executive Branch or a Network, but outside the newsroom” from even “attempt[ing] to direct,

pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the

USAGM networks . . . in the performance of their journalistic and broadcasting duties and

activities.” (emphasis added). The firewall signifies that even though the networks are state

funded, they are affirmatively not state-run. They are free, independent journalistic outlets

designed to function like the most credible and reputable private news organizations in the

world. The primary currency of the USAGM networks is their credibility, which turns largely on

their political independence as guaranteed by the firewall. Indeed, the firewall that exists to

separate USAGM-funded journalism from any political considerations is more robust even than

those firewalls that exist within private news organizations.

6.

Federal law requires that the USAGM networks operate under ethical standards

as credible and reputable news organizations. Specifically, the International Broadcasting Act

provides that USAGM networks must “conduct” themselves “in accordance with the highest

professional standards of broadcast journalism.” 22 U.S.C. § 6202(a)(5). One such professional

standard—a practice built into the fabric of every great media organization—requires a firewall

between the newsroom and the publishers, codified in 22 U.S.C. §§ 6202, 6204(b), and 22 C.F.R.

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§ 531, et seq. Simply put, the highest standards of professional journalism require journalism to be free of interference from an organization’s business team. Journalists must be free to write, report, publish, and broadcast stories about their outlet’s sponsors, advertisers, and even publishers because the credibility of a news organization is its business model. Without offering news people can trust, journalism cannot survive.
7. Defendants have chosen to disregard that principle entirely. They include the newly installed CEO of USAGM, Michael Pack, his team of political appointees, and others—all of whom have engaged in a campaign of unconstitutional and unlawful conduct to try to accomplish exactly what the firewall prohibits: “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks . . . in the performance of their journalistic and broadcasting duties and activities.” 22 U.S.C. § 2204(b) (emphasis added).
8. First and foremost, Defendants’ systematic dismantlement of the firewall began with the removal of those who sought to protect it. They removed, for instance, David Kligerman—the General Counsel of USAGM who wrote the agency-promulgated regulation articulating the contours of the firewall, codified at 22 C.F.R. § 531, et seq. (the “Firewall Regulation”), and knows the exact limit of USAGM’s authority. They also removed Steve Springer, the Standards Editor of Voice of America—a journalist with over 40 years of experience in journalistic ethics and best practices—for the purpose of sidelining Voice of America’s strongest and best internal institutional knowledge of how the firewall works. Defendants have also fired journalists like Executive Editor of Radio Free Asia Bay Fang, attempted to reassign journalists like Voice of America’s New York Bureau Chief, and refused to allow Voice of America to hire and retain foreign journalists critical to running its dozens and
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dozens of foreign language services—employment actions that breach the firewall and have had the cumulative effect of suppressing and chilling journalistic expression. Pack also regularly and recklessly disparages network journalists, claiming that being a journalist at one of the networks is “a great cover for a spy,”2 and that those same journalists are “not reporting the news . . . in an objective balanced manner.”3
9. Secondly, Defendants have engaged in an improper and aggressive course of investigatory conduct designed to effectuate control over and chill journalistic activity. Defendants have conducted investigations on behalf of USAGM into the conduct of network journalists on the other side of the statutory firewall. The investigations appear to be driven primarily by the content and perceived viewpoint of the pieces at play. And regardless of the merit of any particular investigation, the firewall clearly mandates that investigations into journalistic conduct should be done by the networks themselves to avoid unlawfully influencing content or pressuring journalists into a particular perspective in their coverage.
10. The investigations Defendants have launched are transparently partisan. For example, Defendants investigated a video posted on Voice of America’s Urdu service on the basis that it appeared to favor former Vice President Joe Biden in the 2020 presidential election. Similarly, Defendants have interrogated numerous reporters and copy editors about a single line in a profile of First Lady Melania Trump that stated that President Trump “has disparaged immigrants and regularly attacks perceived adversaries on Twitter”4 Over the course of these
2 Tristan Justice, NPR Manipulates Federalist Interview with VOA on Behalf of Government Opposing Reform, The Federalist, (Sept. 3, 2020), https://thefederalist.com/2020/09/03/npr-manipulates-federalist-interview-withvoa-executive-on-behalf-of-government-employees-opposing-reform/.
3 Sara Carter Show: Michael Pack reveals stunning foreign influence in federal media agencies, Radio America (Sept. 10, 2020), https://podcasts.apple.com/us/podcast/the-ricochet-audio-network-superfeed/id960814054.
4 But see, e.g., Eugene Scott, Trump’s most insulting—and violent—language is often reserved for immigrants, Wash. Post, (Oct. 2, 2019, 3:21 PM EDT), https://www.washingtonpost.com/politics/2019/10/02/trumps-most-
(Cont’d on next page)
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illegal investigations, Defendants—who are not journalists and have no experience with journalistic ethics whatsoever—have ordered the termination of journalists, interrogated witnesses, inquired of reporters as to whether stories are “balanced” where stories appear to misalign with Defendants’ political perspectives, and demanded that journalists name names to identify others to interrogate.
11. These actions are unconstitutional and unlawful; they must cease immediately. Defendants have retaliated against Plaintiffs as well as against Voice of America journalists who have engaged in protected expressive conduct, and have engaged in discrimination based on perceived viewpoint—all in clear contravention of the First Amendment. Defendants have also violated the statutory and regulatory firewall that exists to prohibit the very type of misguided political interference in which they engage.
12. Defendants’ misdeeds—which show no signs of abatement—have caused Plaintiffs and others unquestionable irreparable harm. Plaintiffs are the former leaders of USAGM whom Defendants have purged from their positions. Plaintiffs have collectively spent the majority of their professional careers helping to build USAGM and its networks into a credible media force with global audiences in the hundreds of millions. They are dedicated public servants of the utmost integrity whom Defendants have maligned without basis as incompetent and, even worse, potential spies. Defendants’ conduct threatens the credibility of Plaintiffs, the USAGM networks and all who are employed there, harming the networks’ ability to recruit and hire high-caliber journalists and to engage in uncensored journalistic and expressive activity. Defendants must be stopped.
insulting-violent-language-is-often-reserved-immigrants/; Donald Trump’s 10 Most Offensive Tweets, Forbes, https://www.forbes.com/pictures/flji45elmm/donald-trumps-10-most-of/#45008b9570df.
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13. If Voice of America and the other USAGM networks are to survive Defendants’ insidious stewardship, this Court must act. It must enforce the firewall in the way Congress wrote it and the agency’s own regulation construes it, providing that the firewall is “violated when any person within the Executive Branch or a Network, but outside the newsroom, attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence . . . the performance of [the USAGM networks’] journalistic and broadcasting duties.” 22 C.F.R. § 531.3(c). Federal law plainly provides that: “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network[s] make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by the highest standards of professional journalism.” Id. § 531.3(d) (emphasis added). This Court must enforce the firewall and must ensure the First Amendment rights of USAGM journalists and those who support them are preserved, protected, and defended.
JURISDICTION AND VENUE 14. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 15. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and (e)(1). A substantial part of the events giving rise to this claim occurred in this District, and Defendants are officers of the United States sued in their official capacities.
PARTIES 16. Plaintiff Grant Turner has been a public servant for nearly two decades. An expert in federal budgeting and financial management, Turner has served the United States during both Democratic and Republican administrations in the Government Accountability Office, the Office of Management and Budget, the Centers for Disease Control and Prevention, and USAGM. Turner served as the Chief Financial Officer of USAGM between 2017 and 2019, when he was named interim CEO and Director of USAGM. When Defendant Pack was
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confirmed to his position as CEO, Turner reverted to his position as CFO of USAGM until August 12, 2020, when, after making protected disclosures relating to Defendants’ misconduct, he was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Turner remains an employee of USAGM, is vigorously contesting the charges levied against him relating to his security clearance, and fully expects to be restored to his position as CFO.
17. Plaintiff Marie Lennon has served the United States for nearly half a century, i.e., her entire professional life. After serving in various capacities in the Department of Defense and the Environmental Protection Agency, Lennon joined Voice of America in 1982, during the Reagan Administration. In 2003, she became Chief of Staff to Voice of America Director David Jackson. In 2015, Lennon became USAGM’s predecessor organization’s Director of Management Services. As the Director of Management Services, Lennon oversees human resources, contracts, security, civil rights, administration, and workforce support and development. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Lennon was placed on administrative leave purportedly on the ground that her security clearance had been improperly adjudicated. Lennon remains an employee of USAGM, is vigorously contesting the charges levied against her relating to her security clearance, and fully expects to be restored to her position as Director of Management Services at USAGM.
18. Plaintiff Shawn Powers was a tenured professor of comparative media law and policy prior to entering public service. Before joining USAGM, Powers served as the Executive Director of the U.S. Advisory Commission on Public Diplomacy, a body authorized by Congress to oversee and promote government activities designed to inform and influence foreign publics.
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In July 2018, Powers joined the Broadcasting Board, serving as a Senior Advisor focused on strategic planning, innovation, research and evaluation, and policy coordination. In November 2019, Powers was promoted to serve as USAGM’s Chief Strategy Officer, leading the agency’s interagency engagement, strategic planning, strategic initiatives, and partnerships with key international stakeholders. As CSO, Powers oversees the agency’s Office of Policy and Research, Office of Internet Freedom, and its Office of Policy. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Powers was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Powers remains an employee of USAGM, is vigorously contesting the charges levied against him relating to his security clearance, and fully expects to be restored to his position as Chief Strategy Officer.
19. Plaintiff Matthew Walsh has served the United States for more than a decade as a career civil servant. Walsh worked for almost nine years in the United States Department of State, under four different Secretaries of State, before joining USAGM as Chief of Staff to thenCEO and Director John Lansing in 2017. In February 2019, Walsh became the Deputy Director for Operations, responsible for overseeing the international operations of USAGM, managing most of its employees including executives such as the Director of Management Services, the Chief Information Officer, the Director of Technology, Services and Innovations, the Chief Risk Officer, and approximately 250 other staff members. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Walsh was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Walsh remains an employee of USAGM, is vigorously contesting the charges
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levied against him relating to his security clearance, and fully expects to be restored to his position as Deputy Director for Operations.
20. Plaintiff Hoang Oanh Tran has served the United States and worked at USAGM (and its predecessor agency) for nearly three decades. She joined the agency in 1992 as a Human Resources Specialist and joined the staff of the Broadcasting Board in 1999. Tran has been steadily promoted through the agency’s ranks, serving as Special Projects Officer, Director of Board Operations and Managing Director; since 2019, she has been the Executive Director of USAGM. Tran is responsible for personnel-related issues, including resource planning and performance management of the senior staff who report to the CEO. She facilitates and supports agency decision-making, policy, and communications from the CEO, including by facilitating the transition of USAGM’s prior Board of Governors leadership model to the current presidentially-appointed, Senate-confirmed CEO structure. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Tran was placed on administrative leave purportedly on the ground that her security clearance had been improperly adjudicated. Tran remains an employee of USAGM, is vigorously contesting the charges levied against her relating to her security clearance, and fully expects to be restored to her position as Executive Director of USAGM.
21. Defendant the United States Agency for Global Media is an independent agency that supports federally funded broadcast networks, including Voice of America, the Office of Cuba Broadcasting, Radio Free Asia, Radio Free Europe/Radio Liberty, and the Middle East Broadcasting Networks. USAGM networks broadcast in 62 languages and reach a cumulative weekly audience of 350 million people in more than 100 countries. They produce more than
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3,000 hours of original programming each week. The agency’s annual budget is over $800 million for the current fiscal year.
22. Defendant Michael Pack is the CEO of USAGM. President Trump nominated Pack to serve as the USAGM CEO in 2018. Pack’s nomination languished in the Senate for two years, given bipartisan concerns about his competence, vision, and ethics, including questions raised by high-profile investigations into a non-profit organization he ran. Nonetheless, on June 4, 2020, the Senate confirmed Pack in a 53-38 vote. As CEO, Pack has explained that his “job really is to drain the swamp and to deal with [] issues of bias.”5
23. Defendant Emily Newman is the Chief of Staff to the CEO of USAGM, and was hired into that role by Defendant Pack. Newman served as an advisor in the Department of Homeland Security in 2017 before transferring to the Department of Health and Human Services’ (“HHS”) Indian Health Service and later to a position in the White House as a liaison to HHS. Previously, Newman worked as counsel for the Chairman of the U.S. Senate Committee on Indian Affairs, Senator John Barrasso, MD (R-WY) and practiced law in the private sector. To Plaintiffs’ knowledge, Newman neither is nor has ever been a journalist or a news publisher.
24. Defendant Diane Cullo is Deputy Chief of Staff to the CEO of USAGM. Cullo was appointed by Defendant Pack, after having served as Pack’s White House-assigned “sherpa” during his lengthy nomination process. It has been publicly reported that Senate aides had the impression that during the nomination Cullo had no knowledge of either how USAGM operated or its mission. Prior to her current position, Cullo was an advisor at the Department of
5 Alex Ward, Voice of America reporters: Trump-backed CEO “is failing” the US, Vox, (Aug. 31, 2020, 1:30 PM EDT), https://www.vox.com/2020/8/31/21408467/voice-of-america-letter-michael-pack-trump.
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Agriculture in the Office of Tribal Relations. To Plaintiffs’ knowledge, Cullo neither is nor has ever been a journalist or a news publisher.
25. Defendant Samuel E. Dewey is an attorney and political appointee at USAGM hired by Pack. Prior to joining USAGM earlier this year, Dewey worked as an attorney in the private sector and served as counsel in both Houses of Congress, where he conducted investigations for Republican members of Congress. Dewey is active on Twitter, regularly tweeting politically controversial, pro-Trump, and anti-press sentiments.6 To Plaintiffs’ knowledge, Dewey neither is nor has ever been a journalist or a news publisher.
26. Defendant Morvared Namdarkhan, professionally known as Mora Namdar, is an attorney, and the Acting Vice President for Legal, Compliance, and Risk Management at USAGM. Prior to joining USAGM, Namdarkhan worked in governmental affairs for Occidental Petroleum, and then served as a Special Assistant at the State Department for the Director of Policy Planning, focusing on policy at Voice of America. To Plaintiffs’ knowledge, Namdarkhan neither is nor has ever been a journalist or a news publisher.
27. Defendant Frank Wuco is an advisor to Pack at USAGM. Prior to joining USAGM, Wuco was a senior advisor in the Bureau of Arms Control, Verification and Compliance at the Department of State, and before that was a senior White House advisor to the United States Department of Homeland Security. To Plaintiffs’ knowledge, Wuco neither is nor has ever been a journalist or a news publisher.
6 See, e.g., Samuel Dewey (@samueledewey), Twitter (Jul. 4, 2020) (retweeting “This is why the media is hated so much, and rightfully so.”).
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FACTUAL ALLEGATIONS American Broadcasting Has Long Been Insulated From Political And Government
Interference To Ensure Its Integrity And Journalistic Independence. 28. Government-funded journalism, reporting, and broadcasting have been a central component of the United States’ efforts to combat disinformation and propaganda abroad since World War II. Initially, U.S. government-funded international broadcasting provided news to German audiences as a counterpoint to Nazi propaganda. From there, coverage expanded to Eastern Europe and the Soviet Union during the Cold War, and later to Cuba, Asia, and the Middle East. For the past eight decades, U.S. government-funded international broadcasting has served millions of people around the world, especially in countries where governments prohibit access to a free press and freedom of information. Today, some of American broadcasting’s biggest audiences are in Iran and China, where millions of people seek credible, impartial news uninfluenced by government agenda or politics. American government-funded broadcasting services have played key roles in foreign policy by providing truthful information about local and world events where such information would otherwise be suppressed or censored.7 The
7 As Chief Judge Howell explained recently, Notably, VOA Mandarin’s service has extensive reach. Its “audience has continued to grow, particularly for its YouTube programs, which have reached roughly 100 million viewers. During the past year, VOA Mandarin reported on numerous topics that are sensitive to the [People’s Republic of China (‘PRC’) ] government and generally banned, including Chinese dissident views, the mass detention of Uyghurs, political protests in Hong Kong, politics in Taiwan, and PRC ‘misinformation’ efforts. VOA also published articles in English and Chinese questioning China’s COVID-19 numbers and timeline of events. VOA Mandarin’s website received over 68 million visits from April 2019 to April 2020, including 4.5 million article views related to COVID-19 coverage.” 2020 CRS Report at 2.
Open Technology Fund v. Pack, __ F. Supp. 3d ___, 2020 WL 3605935, at *3 n.3 (D.D.C. July 2, 2020).
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global public’s trust in the accuracy of reporting from these organizations is paramount to the success of their mission.
29. America’s government-funded journalism is housed under USAGM, an independent agency whose mission is “to inform, engage, and connect people around the world in support of freedom and democracy.”8 USAGM oversees multiple broadcasting networks including Voice of America, the Office of Cuba Broadcasting, and four USAGM-funded organizations generally called the “grantees”—the Open Technology Fund, Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks. The four grantees are private 501(c)(3) entities; their grant agreements are codified into law and the organizations are fully funded by government grants disbursed by USAGM.
30. Voice of America was the first of America’s government-funded international broadcasters. The network transmitted its first radio program to Europe in 1942, less than two months after the U.S. first entered World War II. Its first broadcaster, writer and journalist, William Harlan Hale, inaugurated federally funded international broadcasting with the principle that has guided Voice of America—and Voice of America’s sister networks—throughout its history: “We bring you voices from America. Today, and daily from now on, we shall speak to you about America and the war. The news may be good for us. The news may be bad. But we shall tell you the truth.”
31. Voice of America was founded to provide consistent and reliable news coverage to combat Nazi disinformation campaigns. See Cong. Research Serv., RL. 435221, U.S. International Broadcasting: Background and Issues for Reform 1 (2016). In 1948, President Harry S Truman signed the Smith-Mundt Act, authorizing Voice of America’s post-war
8 U.S. Agency for Global Media, Who We Are, https://www.usagm.gov/who-we-are/, (last visited Oct. 2, 2020).
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international broadcasting. In 1976, President Ford signed into law the Voice of America Charter, setting forth three principles governing Voice of America broadcasting. Pub. L. 94-350. The Charter provided that Voice of America would: (1) “serve as a consistently reliable and authoritative source of news. VOA news will be accurate, objective, and comprehensive”; (2) “will represent America, not any single segment of American society, and will therefore present a balanced and comprehensive projection of significant American thought and institutions”; and (3) “present the policies of the United States clearly and effectively, and will also present responsible discussions and opinion on these policies.” Id. The statute provided that Voice of America serves “[t]he long-range interests of the United States” and noted that “[t]o be effective, the Voice of America must win the attention and respect of listeners.” 22 U.S.C. § 6202(c) (emphasis added).
32. The federal government began to financially support other networks in the ensuing decades. America launched Radio Free Europe and Radio Liberty in the early 1950s, which ultimately merged into one network in 1976. Radio Free Europe began broadcasting to Central and Eastern Europe, and Radio Liberty to the Soviet Union, during the Cold War. In 1973, Congress formalized its support of these broadcasting efforts, passing the International Broadcasting Act of 1973, which created the Board of International Broadcasting (“BIB”). The BIB was an independent government agency, led by a bipartisan board, which oversaw and funded Radio Free Europe and Radio Liberty from 1973 until 1994.
33. In 1983, American broadcasting expanded into Cuba with the enactment of the Radio Broadcasting to Cuba Act. That Act created a Cuba service within Voice of America. The Cuba service was moved to the Office of Cuba Broadcasting, an independent government agency. The Office of Cuba Broadcasting had originally been created to oversee the operations
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of the federally funded Radio and TV Martí. Radio and TV Martí—named after a renowned Cuban writer who fought Spain to gain Cuba’s independence—provide news and entertainment programs to Cuba in Spanish.
34. A decade later, Congress passed the International Broadcasting Act of 1994, (the “IBA”), Pub. L. 103-236, which repealed its 1973 predecessor and established the new Broadcasting Board, which later became USAGM. The IBA articulated American policy as promoting “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,’ in accordance with Article 19 of the Universal Declaration of Human Rights.” IBA § 302(1).
35. The IBA created the Broadcasting Board specifically to establish a firewall between the U.S. government and the government-funded broadcasting services that make journalistic and editorial decisions. The Broadcasting Board had nine bipartisan members who were statutorily required to enforce and protect the firewall that existed between the government and the journalists. See IBA § 305(c) (articulating the existence of a firewall between anyone involved with any aspect of journalism (e.g., the creation, editing, reporting, distributing, etc. of content) and everyone else in the government). The firewall followed the tenor of regulations BIB had promulgated in 1985, “ensur[ing] that broadcasters would operate ‘as independent broadcast media with professional independence.’” Open Technology Fund v. Pack, __ F. Supp. 3d ___, 2020 WL 3605935, at *2 (D.D.C. July 2, 2020) (quoting 22 C.F.R. § 1300.1(b) (1985)). As a Senate report explained, the statutory firewall was meant to “secure[] the professional independence and integrity of [the Agency’s] broadcasting services” and serve as an “‘asbestos firewall’ between the Executive branch and the daily operation of the radios.” S. Rep. 103-107 (1993); see also H.R. Conf. Rep. 105-432 (to accompany H.R. 1757) at 127, March 10, 1998
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(“The news gathering and reporting functions of the broadcasters must continue to be independent and objective.”). Over and over again, Congress recognized that “[a]lthough VOA correspondents are on the federal payroll, they are unique in that they are working journalists. Accordingly, their independent decisions on when and where to cover the news should not be governed by other considerations.” H.R. Conference Report 107–671 (to accompany H.R. 1646), Sept 22, 2002 (emphasis added). To support and reinforce the journalistic integrity and independence of United States international broadcasting, Section 303 of the IBA promulgated specific standards and principles that would govern that broadcasting. Specifically, the act provided that the networks governed by the act must “conduct” themselves “in accordance with the highest professional standards of broadcast journalism.” IBA § 303(a); 22 U.S.C. § 6202(a)(5). The statute also adopted the language of the Voice of America charter and applied it to the other federally funded networks, providing that such broadcasting “shall include”: (1) “news which is consistently reliable and authoritative, accurate, objective, and comprehensive”; (2) “a balanced and comprehensive projection of United States thought and institutions, reflecting the diversity of United States culture and society”; and (3) “clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies.” 22 U.S.C. § 6202(b)(1)-(3); see also id. § 6202(c) (adopting nearidentical language specific to Voice of America).
36. In addition to codifying the firewall and establishing the core principles and standards of United States international broadcasting, the IBA also established Radio Free Asia. Radio Free Asia’s statutory mission is to “provide accurate and timely information, news, and commentary about events in the respective countries of Asia and elsewhere” and “to be a forum
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for a variety of opinions and voices from within Asian nations whose people do not fully enjoy freedom of speech.” See IBA § 309(b); 22 U.S.C. § 6208(b).
37. In 2017, the National Defense Authorization Act (“2017 NDAA”) reorganized the structure of American international broadcasting once more, providing that at its helm would be a presidentially appointed and Senate-confirmed Chief Executive Officer. The 2017 NDAA explicitly reaffirmed that the decades-old statutory firewall exists between the USAGM networks and applies to the CEO. Specifically, the statute provided that “[t]he Secretary of State and the Chief Executive Officer, in carrying out their functions, shall respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the board.” 22 U.S.C. § 6204(b); accord Open Technology Fund, 2020 WL 3605935, at *2. In his signing statement, President Obama made clear that the statute “‘retain[ed] the longstanding statutory firewall, protecting against interference with and maintaining the professional independence of the agency’s journalists and broadcasters and thus their credibility as sources of independent news and information.’” Open Technology Fund, 2020 WL 3605935, at *2 (quoting President Obama’s Statement on Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 DAILY COMP. PRES. Doc. 863, at 3 (Dec. 23, 2016)).
38. On June 15, 2020, USAGM promulgated a regulation entitled Firewall and Highest Standards of Professional Journalism, also known as the Firewall Regulation. The Firewall Regulation was passed unanimously by the Broadcasting Board and took effect on June 11, 2020. See 85 Fed. Register 115,36151 (codified at 22 C.F.R. § 531). As articulated in the Federal Register, the regulation would “codify a common-sense definition of the firewall, consistent with the law, the highest standards of professional journalism, and longstanding practice.” Id. at 36150-51.
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39. The Firewall Regulation makes clear that “USAGM networks necessarily enjoy full editorial independence in order to maintain their ‘professional independence and integrity,’ . . . insulating their editorial decisions from interference from those outside of the network, or from impermissible considerations, as set forth herein.” 22 C.F.R. § 531.1(b). The regulation also articulates that USAGM is permitted to “conduct[]” “oversight . . . in a manner consistent with that conducted by other media organizations which operate editorially independent news divisions that adhere to the highest standards of journalism.” Id. And it provides that the “networks each enjoy full editorial independence.” Id. § 531.2(a) (emphasis added).
40. The firewall “exists around USAGM-funded networks, their products, and staff in order to protect their professional independence and integrity.” 22 C.F.R. § 531.3(a). The firewall is like that applied “[w]ithin any credible news organization”—it separates “anybody involved in any aspect of journalism (e.g., the creation, editing, reporting, distributing, etc., of content) and everyone else in the organization.” Id. § 531.3(b). “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network[s] make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by the highest standards of professional journalism.” Id. § 531.3(d) (emphasis added).
41. The Firewall Regulation places strict limits on the interactions government officials—including those at USAGM—can have with members of the networks:
This “firewall” is understood to be violated when any person within the Executive Branch or a Network, but outside the newsroom, attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties
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and activities. It is also violated when someone inside the newsroom acts in furtherance of or pursuant to such impermissible influence. Such impermissible influence would undermine the journalistic and editorial independence, and thus the credibility, of that USAGM network, and their reporters, editors, or other journalists. 22 C.F.R. § 531.3(c).
President Trump Attacks the Agencies and Nominates Michael Pack, a Far-Right Documentarian With No Broadcast Journalism Leadership Experience, As USAGM CEO
42. In June 2018, the White House announced that President Trump intended to
nominate Michael Pack as the CEO of USAGM. The backlash was immediate. Numerous
media outlets expressed concern over the nomination. The Guardian wrote that “[i]f Pack does
become head of the [the Agency], critics fear that he will turn Voice of America and the other
[Agency] networks into a megaphone for Trump.”9 There was broad concern that Pack’s
mission would be to subvert the credibility of the journalism thousands of people had spent
decades building, and convert USAGM networks into Trump TV or another form of state-run
propaganda. 43. Pack’s confirmation process quickly became bogged down. Numerous
Senators—from both major political parties—had concerns that Pack’s experience as a
documentary filmmaker would not provide the skill set necessary to lead an organization
dedicated to broadcast journalism. USAGM is an agency with a current annual budget of over
$800 million, overseeing more than 3,000 employees. On information and belief, Pack has never
managed a budget or staff of that size.10
9 Arwa Mahdawi, Michael Pack: the Bannon ally critics fear will become Trump's global propagandist, The Guardian (June 6, 2018), https://www.theguardian.com/media/2018/jun/06/michael-pack-steve-bannon-allybroadcasting-board-of-governors.
10 See Senate Committee on Foreign Relations, Testimony of Michael Pack, Sept. 19, 2019, https://www.foreign.senate.gov/imo/media/doc/091919_Pack_Testimony.pdf (describing past experience as
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44. As Pack’s nomination languished, President Trump and the White House began
pressuring the Senate to confirm Pack. In April 2020, the President called Voice of America
“the Voice of the Soviet Union”11 and claimed that Voice of America was saying “disgusting
[things] toward our country,”12 and was “parroting Chinese talking points during its coronavirus
coverage.”13 The White House later issued a statement that “VOA too often speaks for
America’s adversaries—not its citizens . . . . Journalists should report the facts, but VOA has
instead amplified Beijing’s propaganda.”14 The President accused Voice of America of
“spend[ing America’s] money to promote foreign propaganda” “amid a pandemic.”15 He called
the broadcaster a “DISGRACE” and accused it of peddling Chinese and Iranian “propaganda.”16
45. Pack was confirmed on June 4, 2020 and sworn in as CEO of the agency four
days later. The President tweeted:
running a “small business” “with 50 to 75 associates” at Manifold Productions, as well as running the Claremont Institute). The Claremont Institute currently has a staff of 28. Claremont Institute, Leadership, https://www.claremont.org/leadership/ (last visited Oct. 2, 2020). 11 Alex Ward, Trump and Steve Bannon want to turn a US-funded global media network into Breitbart 2.0, Vox, (June 18, 2020, 6:00 PM EDT) https://www.vox.com/2020/6/18/21295549/trump-bannon-pack-global-mediachina-wednesday-massacre. 12 Sarah Ellison, How Trump’s Obsessions with Media and Loyalty Coalesced in a Battle for Voice of America, Wash. Post (June 19, 2020, 4:52 PM EDT), https://www.washingtonpost.com/lifestyle/media/how-trumpsobsessions-with-media-and-loyalty-coalesced-in-a-battle-for-voice-of-america/2020/06/19/f57dcfe0-b1b1-11ea8758-bfd1d045525a_story.html. 13 Ward, supra note 11. 14 David Folkenflik, White House Attacks Voice of America Over China Coronavirus Coverage, NPR, (Aug. 10, 2020, 6:14 PM ET), https://www.npr.org/2020/04/10/831988148/white-house-attacks-voice-of-america-overchina-coronavirus-coverage. 15 The White House, Amid a Pandemic, Voice of America Spends Your Money to Promote Foreign Propaganda, (Apr. 10, 2020), https://www.whitehouse.gov/articles/amid-a-pandemic-voice-of-america-spends-your-moneyto-promote-foreign-propaganda/. 16 Paul Farhi, With their visas in limbo, journalists at Voice of America worry that they’ll be thrown out of America, Wash. Post, (Aug. 2, 2020, 2:57 PM EDT), https://www.washingtonpost.com/lifestyle/media/withtheir-visas-in-limbo-journalists-at-voice-of-america-worry-that-theyll-be-thrown-out-ofamerica/2020/08/02/e9882c8a-d33f-11ea-8d32-1ebf4e9d8e0d_story.html.
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He specifically referenced a “big battle in Congress” that had been ongoing for 25 years. The IBA was signed into law approximately 25 years before Pack’s confirmation; that statute codified the statutory firewall as it exists today.
46. On or about June 17, 2020 Pack held his first meeting with the senior staff of USAGM, including Plaintiffs Shawn Powers, Hoang Oanh Tran, Marie Lennon, Grant Turner and Matthew Walsh. On information and belief, Pack had planned to fire Plaintiffs at that meeting. The night before, however, Representative Eliot Engel, Chairman of the House Foreign Relations Committee, issued a public statement warning against this course of action:
I have learned that Michael Pack, the new CEO of the U.S. Agency for Global Media, intends to force out a number of the agency’s career senior leadership tomorrow morning. My fear is that USAGM’s role as an unbiased news organization is in jeopardy under his leadership. USAGM’s mission is ‘to inform, engage, and connect people around the world in support of freedom and democracy’—not to be a mouthpiece for the President in the run up to an election. . . . Mr. Pack should immediately reverse course and allow the nonpartisan public servants who run USAGM to keep doing their jobs. And Mr. Pack needs to understand that USAGM is not the Ministry of Information. The law requires that our international broadcasting be independent, unbiased, and targeted toward audiences around the world. USAGM broadcasters are credible only if audiences believe what they’re seeing and hearing is the
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straight, unvarnished truth. I will use every tool at the Foreign Affairs Committee’s disposal to make sure career employees are protected, the law is followed, and USAGM’s credibility remains intact.”17 On information and belief, prior to the meeting, Pack was informed that he lacked legal authority to fire Plaintiffs—career civil servants with unblemished employment histories—absent valid rationales. 47. Pack’s planned purge of USAGM senior staff would thus have to wait. The meeting lasted approximately 10 minutes. Pack read from a script which thanked everyone for their service and then laid out his immediate plans. 48. Pack implemented an immediate freeze of many of USAGM’s core activities: (1) personnel actions (other than retirement); (2) contracting actions; and (3) technical migrations (IT projects). After the meeting, Pack’s Chief of Staff, Defendant Emily Newman, told the staff in an email that they were prohibited from communicating with external parties, severely hampering many of Plaintiffs’ ability to do their jobs and keep the agency running. The freezes also precluded certain Plaintiffs from approving any administrative action and barred them from spending any funds, including previously approved expenditures. Each of these limitations prohibited Plaintiffs’ from undertaking actions that were essential to the functioning of the agency. 49. Shortly after the meeting, Defendant Newman sent an email to all senior staff officially revoking all delegated authorities. This included, for example, the delegated authorities which allowed senior staff to spend funds, hire staff, and approve contracts.
17 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Raises the Alarm on Impending Firing Spree at USAGM (Jun. 16, 2020), https://foreignaffairs.house.gov/2020/6/engel-raises-thealarm-on-impending-firing-spree-at-usagm.
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50. These actions had immediate effect on USAGM and its thousands of employees. Basic tasks like ordering toilet paper and contracting for cleaning services—essential during a pandemic—languished. Numerous essential contracts lapsed. At least two of the agency’s news organizations—Radio Free Asia and Radio Free Europe/Radio Liberty—were brought to the brink of not being able to pay their employees. On information and belief, the goal of Defendant Pack’s actions was to strangle the news networks and remind them who was in control, thus ensuring that all the networks would take direction from USAGM without question in the future—i.e., to have a chilling effect on the networks’ freedoms of speech and press.
51. On June 17, 2020, Pack unilaterally removed the Boards of each of the grantee networks and replaced them with largely unqualified members of the administration as well as an employee of Liberty Counsel Action, a conservative advocacy organization.18 Pack also removed the Presidents of each of the grantee networks, leaving their leadership teams weakened and diminishing their capacity to effectively manage themselves.
52. The organizational heads dismissed the night of Wednesday, June 17, 2020 included Bay Fang, then President of Radio Free Asia. Fang returned to her prior position as Executive Editor at Radio Free Asia—a journalistic position within the statutory and regulatory firewall. Although the head of Voice of America, former Director Amanda Bennett, had resigned prior to Pack’s purge of the network leaders, Voice of America was not spared. The same day, Pack directed that Voice of America’s Standards Editor, Steve Springer, be reassigned from that position, which has not since been filled.
18 See Open Technology Fund, 2020 WL 3605935, at *3–4.
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53. Pack’s purge was quickly labeled the “Wednesday night massacre.” A bipartisan group of Senators condemned the purge immediately and pledged to review the agency’s funding as a consequence:
As the United States faces global challenges in the information space, it cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees’ independence so they can act as a bulwark against disinformation through credible journalism.19
Defendants Breach The Firewall Over And Over Again 54. In the ensuing weeks, Defendants started to aggressively change things at USAGM. Their goal was to fundamentally remake USAGM into state-sponsored media. To accomplish this, they needed to aggressively breach the statutory and regulatory firewall, cow the journalists into submission, and chill any expressive conduct that they deemed out of lockstep with the administration. 55. Sidelining The Guardians Of The Firewall. A wall is only as good as the guardians who protect it. Guardians of the USAGM firewall included agency stalwarts like David Kligerman, who wrote the very regulation that articulated the firewall’s requirements. Kligerman spent much of his career advising government officials about the firewall, what it required, and what it prohibited. He, along with Plaintiffs Turner, Lennon, Powers, Walsh, and Tran, were an essential bulwark against political interference with the agency’s journalistic mission: they ensured that the firewall between USAGM and the newsrooms of the agency’s
19 Press Release, Sen. Marco Rubio, Rubio and Colleagues Send Letter to USAGM CEO Expressing Concern Following Recent Termination of Employees (July 1, 2020), https://www.rubio.senate.gov/public/index.cfm/2020/7/rubio-and-colleagues-send-letter-to-usagm-ceoexpressing-concern-following-recent-termination-of-employees.
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news networks was maintained. Thus, Defendants have drummed up sham justifications to remove these USAGM employees—public servants who took the firewall seriously and who would have served as impediments to Pack’s unlawful mission to take control over the agency networks’ journalistic content. Other guardians of the firewall have been sidelined and purged by Defendants as well, including Steve Springer, the former Standards Editor of VOA, and Bay Fang, the former Executive Editor of Radio Free Asia.
56. One of the central means by which Defendants have been able to exert undue and unlawful political influence over Voice of America’s newsroom was removing Steve Springer, Voice of America’s longtime Standards Editor, from his role and not permitting any replacement Standards Editor to be named. The position of Standards Editor is a journalistic function ensuring the independence, integrity, and credibility of top-flight journalism. Standards Editors are essential to the functioning of a newsroom. They are the guardians of journalistic best practices and ethics—what they say in that regard goes. Their judgment and experience ensures that a news organization’s reporting remains at the highest quality of journalistic independence.
57. Steve Springer joined Voice of America after a storied career in journalism at CNN and other organizations. Springer served as the editor to whom all Voice of America journalists could go to for firewall and other journalistic best practices and ethics questions. Springer trained all new employees throughout USAGM and the networks on the obligations imposed by the firewall to ensure that everyone understood and respected it.
58. Springer was removed from his position on Pack’s first day in office, hours before the famed Wednesday night massacre. Springer was detailed to the role of a special assistant to Andre Mendes, CEO Pack’s Chief Operating Officer, but was given no duties whatsoever; he had literally nothing to do. Yet as of the date of this filing, Voice of America still lacks a
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Standards Editor. Voice of America leadership has communicated multiple times to USAGM officials that Voice of America wants Springer to return and that his position is critical to Voice of America’s mission of pursuing the highest professional standards of journalism. To no avail.
59. The removal of Steve Springer as the Standards Editor of Voice of America was done by or directed by Defendants in direct breach of the firewall. No CEO of any reputable private news organization would have interfered with the Standards Editor position—or any position in the newsroom—or removed a Standards Editor, let alone one as experienced, professional, and capable as Steve Springer. Cf. See Open Technology Fund, 2020 WL 3605935, at *11 n.19 (noting the “‘equivalen[cy]’ standard” that governs the minimal “direction and oversight” in which the CEO can engage). The sidelining of Steve Springer was meant to coerce, threaten, interfere with, or otherwise impermissibly influence Voice of America personnel in the performance of their journalistic and broadcasting duties and activities, and indeed has had those effects on the network and its journalists.
60. Springer’s removal has had an immediate and deleterious effect on Voice of America, its journalists, and its content. A senior editor writing to Voice of America leadership in mid-August 2020 perhaps put it best: “[T]hat we still have no agency-wide standards editor [for this] sustained period—but especially during peak US election time—is frankly journalistic malpractice.” The editor further explained, “[t]he standards editor during US election season plays an even more influential role, helping communicate the agency’s editorial practices so that all journalists can apply a consistent standard in all languages. Leaving this position empty damages our journalism. It’s as simple as that. The longer the position remains empty, the more likely we will make errors that undermine our credibility.”
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61. Pack’s efforts to remove the firewall’s guardians did not stop with Springer. On August 12, 2020, Pack placed Kligerman and Plaintiffs Powers, Tran, Lennon, Turner and Walsh, who possess over a century of experience—including experience understanding and protecting the firewall—on administrative leave, under the pretext that the USAGM’s Office of Security lacked the proper authority to investigate background checks, an allegation that if true would apply to over 1,500 agency employees. Plaintiffs are vigorously challenging these meritless charges in administrative proceedings. Because potentially every USAGM employee is subject to a similar charge relating to their security clearances, Defendants’ selective enforcement against Plaintiffs is clear indication of Defendants’ desire to breach and interfere with the functioning of the statutory firewall by sidelining Plaintiffs.
62. Terminating Radio Free Asia’s Executive Editor. Defendants have blatantly interfered with personnel decisions in violation of the firewall. Simply put, which reporters to hire, fire, where to place them, and other such decisions are day-to-day newsroom decisions with which the firewall prohibits USAGM from interfering. But Defendants have actively meddled in these processes, attempting to control these essential journalistic functions. The ultimate goal of this meddling is to limit and change journalistic coverage and to fundamentally remake the USAGM networks.
63. Following the improper removals of Plaintiffs and Steve Springer, Defendants’ next improper personnel decision was terminating Bay Fang as Executive Editor of Radio Free Asia. At the time Pack assumed his position, Fang was serving as the President of Radio Free Asia, but when Pack took power he immediately terminated all the heads of the grantee networks, including Fang. Pursuant to the terms of her contract, Fang returned to serve in her prior role of Executive Editor. Subsequent to her demotion, during the week of June 22,
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USAGM staff—including Pack—had asked why Fang, even though terminated as President, was “still there.” A couple of weeks later, Pack demanded that the acting President of Radio Free Asia fire Fang, and he did so.
64. An Executive Editor has a core journalistic function—she oversees editorial content of a publication, including by directing coverage decisions. The Executive Editor was a firewall-protected position, reporting to the President of Radio Free Asia and to no one else. Forcing Fang’s termination was a clear-cut violation of the firewall, just as demanding the termination of any journalist is a blatant violation of the firewall. No CEO of any reputable private news organization would have personally directed the firing of an Executive Editor, particularly not one so experienced, professional, and capable as Bay Fang. The termination of Fang was meant to coerce, threaten, interfere with, or otherwise impermissibly influence network personnel in the performance of their journalistic and broadcasting duties and activities.
65. Attempting to Reassign the New York Bureau Chief. Several months ago, Voice of America hired a new Bureau Chief for New York. A Bureau Chief is an essential journalistic function. Bureau Chiefs manage the bureau and are responsible for coverage decisions, management of bureau personnel and editorial oversight. Originally, when that job was listed, no New York Bureau employees applied for the position. Consequently, Voice of America hired a qualified member of its Russian service for the role.
66. Before that person could relocate for their new position, but after they had started in the job remotely, Defendant Cullo called Plaintiff Lennon and demanded a reassignment of the person who had been selected. Though the job had been advertised months ago, the position filled, and the individual actively doing the job without issue, Cullo demanded that the position be re-advertised and that Lennon work on reassigning the person who had been hired as Bureau
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Chief. Cullo asked Lennon to “give me some ideas” about where they could “park” the wouldbe Bureau Chief. Cullo did not provide Lennon with any legitimate reason for the reassignment. Her stated rationales were that Voice of America had not advertised the position, that Voice of America should have promoted someone from within the New York Bureau, and that she did not think they should pay relocation fees when there were qualified applicants already located in New York. Those rationales were false. First, the position had been advertised and filled prior to Cullo’s joining the agency. Second, no one within the New York Bureau had applied to be Chief. Third, the hired Bureau Chief had not sought relocation reimbursement.
67. Cullo’s interference with journalistic hiring was a blatant breach of the firewall. The decision plainly interfered with or at least attempted to interfere with Voice of America’s exercise of its journalistic duties. See 22 C.F.R. § 531.3(c). The originally hired New York Bureau Chief remains in his position only because senior managers at Voice of America and others refused to comply with Cullo’s orders in adherence to the firewall.
68. Constructive Discharge of Foreign Journalists. Many of Voice of America’s journalists are not American citizens. They are extremely experienced, high-ranking journalists in foreign countries that Voice of America expends significant effort and resources to recruit because those individuals are often the only people qualified to serve as journalists on one of the dozens of foreign language services Voice of America operates. Many of these foreign journalists take great personal risks in working for Voice of America. They often hail from countries where practicing independent journalism itself is risky and working for an American outlet even riskier. Particularly because of the need to have credible, professional journalists with language skills, several of Voice of America’s foreign journalists are the only journalists
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who are working for certain VOA language services. Without these foreign journalists, those journalistic outlets would have to close wholesale.
69. USAGM is not an immigration authority but rather, like any employer, can sponsor its employees for certain types of visas. One such visa is the J-1 visa, a non-immigrant cultural exchange visa. Applications for J-1 visas undergo an extensive vetting process by the State Department and the Department of Homeland Security. That visa can only be provided for aliens with actual positions—i.e., if a position ceases to exist or is defunded, the alien can no longer work or live in the United States. Although Voice of America always looks to hire American citizens, when qualified citizens are unavailable, Voice of America recruits the best foreign journalists through vigorous vetting and recruitment.
70. When Voice of America decides to hire a foreign journalist, it prepares the requisite sponsorship papers, and the CEO of USAGM engages in the ministerial act of signing those sponsorship papers. Neither of USAGM’s two prior CEOs—John Lansing and Plaintiff Turner—ever hesitated or refused to sign the requisite sponsorship papers. They knew that their failure to do so would be a gross breach of the firewall because it would constitute an interference with journalistic operations and personnel decisions. Even, for instance, the perception that the CEO was evaluating a visa applicant’s journalistic content and experience before signing sponsorship papers would result in a firewall breach by suggesting that the CEO was using the ministerial visa sponsorship process to interfere with journalistic content. No reputable news organization would let its business-side leadership control hiring of line reporters in this manner.
71. Since taking office, Pack has refused to adhere to this model: he has stated that he will personally review and decide whether to renew J-1 visa applications on a case-by-case basis.
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Pack has further refused to fund the contracts of multiple foreign journalists who already have J1 visas. Pack has articulated no standard that he will use to evaluate visa requests. Pack’s decision to arbitrarily subject J-1 visa holders to increased scrutiny is part of his larger objective to reduce the independence and effectiveness of Voice of America’s journalistic reporting by exerting greater control over foreign journalists. He is effectively controlling hiring and firing of foreign journalists, in violation of the firewall, under the pretense of reviewing visa determinations.
72. Pack’s refusal to complete his ministerial function of signing J-1 sponsorship papers is having a crippling effect on the journalistic operations of Voice of America and on its long-term reputation. Multiple Voice of America foreign-language news services are struggling to produce the volume and quality of content both Congress and their audiences expect; numerous services are so understaffed that they have been forced to abandon 24/7 monitoring of the news, and significantly reduced the amount of new content being produced and broadcast. These problems will only worsen if Pack does not change course. At least five journalists thus far have been forced to leave the U.S. because their visas expired in light of Defendant Pack’s refusal to sign the requested renewals.20
73. Voice of America’s mission to combat disinformation requires the work of these dedicated foreign-language trained journalists to make the news accessible for its global audience. And the effort Voice of America has made to demonstrate to foreign journalists it seeks to recruit—many of whom face great peril in choosing to work for an Americangovernment funded news organization—that it is a credible place to work for professional
20 Jessica Jerreat, Members of Congress Call on USAGM to Explain J-1 Visa Denials, Voice of America (Sept. 16, 2020), https://www.voanews.com/usa/members-congress-call-usagm-explain-j-1-visa-denials.
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journalists (rather than a prop of the U.S. government) are being squandered. Highly skilled and sought-after journalists, who might ordinarily seek employment or be recruited by Voice of America, are unlikely to join Voice of America upon learning the truth about America’s disturbing pattern of promising journalistic employment, asking journalists to uproot their lives to come here and help export American free media, and subsequently reneging on every promise made. A Chinese government editorial put it best: “Those who still have the illusion that the U.S. government will protect them if they sell out their country and work for the U.S. will only be repeatedly humiliated by (President Donald) Trump.”21
74. Pack’s refusals to sponsor or renew these J-1 visas or to fund foreign-language journalist positions that had already been filled exerts a chilling effect on all journalists who hold visas, because their ability to stay employed in the United States becomes inextricably intertwined with Pack’s standardless, arbitrary and capricious discretion. Pack’s statement that he would only renew J-1 visas on a case-by-case basis effectively tells these foreign journalists to tailor the content of their reporting in a manner that will keep Pack satisfied, lest he decline to renew their visa and send them back to their home countries. A group of House and Senate members wrote in a letter to Pack on September 14, 2020, by “fail[ing] to expeditiously extend these visas . . . [Pack is] potentially putting the lives of these journalists in danger by forcing them to return to countries where political leaders may target them for their work on behalf of an American media outlet[.]”22 “Failing to renew these visas constitutes more than callous
21 Jessica Jerreat, VOA Journalists Fly Home After USAGM Fails to Renew J-1 Visas, Voice of America (Aug. 25, 2020), https://www.voanews.com/usa/voa-journalists-fly-home-after-usagm-fails-renew-j-1-visas.
22 Letter from Sen. Robert Menendez, United States Senator, et al., to Michael Pack, Chief Executive Officer of USAGM (Sept. 14, 2020), https://www.foreign.senate.gov/imo/media/doc/09-1420%20Letter%20to%20Pack%20on%20Visa%20ExtensionsFINAL1.pdf.
(Cont’d on next page)
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treatment of a class of employees and contractors who have put their unique skills and insights to use in service of the USAGM’s mission.”23 Indeed, it is reckless disregard for the safety of journalists.
75. No leader of a reputable news organization in Pack’s position would exert authority in such a callous and indifferent manner. Indeed, no private-sector CEO would interfere in journalistic hiring and firing in the way Pack’s J-1 visa practices have, and particularly not when such an arbitrary practice clearly seeks to control the journalistic content produced and so cripples the very organization and reputation he runs. The refusal to exercise the ministerial, pro forma duty of signing J-1 visa sponsorship papers like any other private sector employer does is a blatant violation of the firewall and must be remedied.
76. Illegal Interference with Journalistic Content. At Defendant Pack’s direction and with his encouragement, USAGM lawyer Defendant Sam Dewey has undertaken a course of unlawful interference with a host of journalistic processes, particularly at Voice of America. USAGM is prohibited from taking action to “coerce, threaten, interfere with, or otherwise impermissibly influence . . . the performance of [] journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). Dewey’s actions are thus illegal.
77. Dewey has aggressively worked to insert himself into the newsroom, in direct violation of the firewall. Dewey has asked to participate in news coverage meetings regarding election reporting and raised concerns about the political content and perceived viewpoint of Voice of America stories. He has also ignored the journalistic chain of command—reaching far within the newsroom to speak directly with journalists, bypassing Voice of America’s Director and even its senior journalistic leaders to raise concerns about content and seek action from
23 Id.
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lower-level journalistic employees. No credible news organization would ever permit a manager outside the firewall to attend such meetings or voice such concerns to journalists within the firewall. Merely requesting to attend news coverage meetings sends a striking message that USAGM is watching and that coverage must toe the party line. That Dewey is a sophisticated attorney capable of parsing statutes and regulations suggests that his breaches of the firewall were knowing and intentionally designed to intimidate and influence coverage of the election.
78. Interference through Threats, Coercion, and Investigations. At the direction of Defendant Pack, Defendant Sam Dewey and other USAGM officials, have and are continuing to investigate and scrutinize journalistic activity in an unlawful attempt to “coerce, threaten . . . [and] impermissibly influence . . . the performance of [] journalistic and broadcasting duties[.]” 22 C.F.R. § 531.3(c). Whether a story should be published, was improperly published, or should be taken down is a day-to-day journalistic decision. Where lapses of journalistic practices occur, journalistic practice and USAGM policy dictates that the investigation of any alleged issues be undertaken by other journalists at the networks—not by politically motivated actors on the other side of the firewall.
79. In fact, throughout USAGM’s recent history, Voice of America leadership itself has been the one to investigate apparent issues with journalistic best practices within Voice of America. In cases where the lapse is potentially significant, Voice of America leadership has brought in outside auditors, including professors of journalistic ethics, to opine on the nature of the alleged error and any potential penalty. For example, in 2017 concerns were raised within the Voice of America about the way the Mandarin Service handled a live broadcast of an interview with a Chinese exile. Both an outside law firm as well as an expert in broadcast
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journalism were retained to conduct an investigation—this structure was purposely designed to avoid any appearance of political partiality.
80. To the contrary, Defendants have launched a series of USAGM-led investigations into alleged journalistic lapses within the news networks on the other side of the firewall. In recent weeks, two incidents occurred in two of Voice of America’s language services—its Urdu service and one of its Spanish services, VOA Noticias. The contrast between how USAGM handled each potential lapse in journalistic standards is instructive on USAGM’s political motives and its own conflicts of interest.
81. Specifically, VOA Noticias posted a video from a Trump campaign official advising Latinos to vote against Joe Biden. The story provided no context or response from the Biden campaign—it was effectively raw campaign footage. Once Voice of America leadership became aware of the story—which did not meet the Voice of America requirements for balance and objectivity under its charter, see 22 U.S.C. § 6202(c)(2)—they removed it from VOA Noticias’s Twitter feed and investigated the incident. USAGM, while aware of the incident, did not take any action with respect to this apparent journalistic lapse.
82. But when a video appeared on Voice of America’s Urdu service relating to Democratic presidential nominee Joe Biden, USAGM itself conducted a detailed journalistic standards investigation within VOA, in clear violation of the firewall. That video featured clips of Biden speaking at an event organized by an American-Muslim nonprofit organization; it included a two-minute clip of Biden speaking and provided no context or response from the Trump campaign.
83. Shortly after learning about the Biden video, Voice of America leadership started to investigate but were immediately rebuffed by USAGM and Defendants—in stark contrast to
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how the VOA Noticias incident was handled. Voice of America leadership was advised by USAGM leadership that only Defendant Dewey—a political appointee at USAGM—would be conducting the investigation into whether the Urdu service journalists abided by journalistic standards. Defendant Pack himself personally assigned Dewey to conduct this investigation, bypassing journalistic leadership. In conducting the investigation, Dewey interviewed the reporters about an editorial decision in the newsroom—a blatant violation of the firewall.
84. Defendants Dewey, Cullo, and Newman participated in this investigation. On July 28, 2020, for instance, Defendants Newman and Cullo asked the Voice of America Acting Director for lists of “all people” involved “directly or indirectly, or who should have been involved” in producing and airing the Biden video. She further requested that Voice of America send her all of their contracts. Defendant Dewey inquired further on July 29, 2020, seeking additional documents, access to any “materials gathered as part of [Voice of America’s] review” into the video, and for an assessment of what employees at Voice of America “should have been involved in the process”—an assessment that he believed “can be resolved independent of any analysis of the actual situation at hand.” Mr. Dewey sought information relating to the journalistic “policy and procedure” relating to the Biden video.
85. Once Defendant Dewey’s investigation concluded, the punishment was swift: the Urdu service’s digital managing editor was placed on administrative leave, and four contractors who had worked on the Joe Biden video were terminated. This punishment was historically unprecedented and disproportionate to the journalistic “crime.” The message sent to VOA’s journalists was clear: the USAGM CEO—not VOA—would play judge and jury to those whose reporting is considered unfavorable to the President and the punishments will be severe. To Plaintiffs’ knowledge, no similar USAGM investigation or discipline has occurred relating to the
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VOA Noticias video that advised Latinos to vote in favor of President Trump. The clear inference journalists can draw: journalists are safe where they favor the administration but not where they don’t. That is textbook political interference with journalistic coverage.
86. The message Pack and Dewey sent—we are watching, and any failure to toe the party line will be dealt with swiftly—was heard loud and clear. Days after the investigation, a Voice of America Urdu service journalist—presumably worried about his job after observing the actions Defendants Pack and Dewy took with regard to his colleagues—removed certain videos from the service’s website. Removed videos included coverage of the protests that followed the killing of George Floyd. These videos covered important events of public and even historical significance; they were not only appropriate incidents to cover but even essential news. But because the journalist feared Defendants might view these stories through a particular lens and subject those associated with the stories to punishment, this journalist removed these stories from the Urdu service’s website. On information and belief, these videos have been permanently deleted.
87. Defendant Dewey got wind of the removals and immediately sprung to action. Bypassing the normal journalistic chain of command, he wrote directly to the chief of the Urdu service asking him for more information about the now-deleted videos. Specifically, he stated “Please identify content put out during same time period as these videos that presents the other side of these issues, namely that regardless of the merit of the BLM or other causes, mass rioting is not acceptable. For example, are there videos that contain some of the statements by Attorney General Barr on these issues or stories about those who lived in underserved communities and had their property damaged?” Dewey’s note further stated: “Please immediately instruct the entire service that they are ordered and directed by the office of the CEO to search for and
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preserve any copies of the stories removed.” These directives illustrate unabashed breaches of the firewall and blatant attempts to exert control over the Voice of America’s content. The message was loud and clear: with every George Floyd protest story, there should be content that favors Dewey’s perspective, as illustrated in his Twitter feed:
Dewey’s pressure, coercion, intimidation, and interference flies in the face of the firewall. 88. Dewey’s investigative onslaught has continued. In recent weeks, Dewey asked
Voice of America leadership to report to him which Voice of America journalists were working on every story being developed at the network—something he called a chain of custody. As a member of USAGM CEO’s team, and pursuant to the firewall, Dewey has no place knowing what stories are being prepared by the network for publication, let alone who is working on those stories. Dewey’s message again was clear: we are here, we are watching, and the failure to conform will be addressed forcefully. Attempting to ascertain which journalists are responsible for what stories exerts a chilling effect on journalists—it tells journalists not only that the CEO is monitoring what content they produce but also what the CEO wants them to take a particular journalistic approach towards. The firewall expressly disallows this very type of coercion, interference, and pressure from occurring.
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89. Investigations into Profiles of Jill Biden and Melania Trump. Improper journalistic investigations have proliferated beyond Defendant Dewey as well. In fact, Defendant Dewey, as well as other USAGM employees working at his behest, have undertaken a large-scale investigation of the production and editorial process of two specific Voice of America pieces: two audiovisual profiles of former Second Lady Dr. Jill Biden and First Lady Melania Trump. USAGM’s purported investigation into these two pieces involved interviews of many journalists and/or editors in Voice of America’s newsroom and language services.
90. The audiovisual profiles of Mrs. Trump and Dr. Biden went live on the Voice of America website on July 29, 2020.24 The profiles provide details about the First and formerSecond Ladies’ personal histories and involvement in various causes, showing clips of them speaking at public events including political rallies on behalf of their husbands. In both profiles, a voiceover describes how each woman met her husband, had children with them, and took up public causes like child welfare (Mrs. Trump) and education (Dr. Biden). The pieces are similar in tone and time, each video piece spanning just over three minutes composed of spliced footage of the subjects, their husbands, and other third-party commentators. The tone is matter-of-fact, and the coverage provides factual backgrounds on both women.
91. The pieces are accompanied by the following captions. Melania Trump, the first lady of the United States, was a model before she married businessman Donald Trump 15 years ago. A Slovenian immigrant, the first lady shies away from the public eye except for occasional appearances on behalf of her causes, which focus on children. VOA’s Carolyn Presutti shares with us things you might not know about the president’s wife.
24 Carolyn Presutti, America’s First Lady - From Immigrant Model to The White House, Voice of America (July 29, 2020, 6:40 AM), https://www.voanews.com/episode/americas-first-lady-immigrant-model-white-house4370301; Carolyn Presutti, Former Second Lady Vying to Be America’s First Lady, Voice of America (July 29, 2020, 6:39 AM), https://www.voanews.com/episode/former-second-lady-vying-be-americas-first-lady-4370306. Plaintiffs incorporate these stories by reference.
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Jill Biden, the wife of presumptive Democratic presidential nominee Joe Biden, is on leave from her teaching job to assist with her husband’s campaign. Mrs. Biden is very familiar with life in Washington, since her husband spent 36 years in the U.S. Senate and eight years as vice president under Barack Obama. VOA’s Carolyn Presutti brings us more interesting facts about Jill Biden in this profile.
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The captions, like the pieces themselves, provide similar information about the two women, and are structured as near-mirror images.
92. Multiple VOA reporters and editors were contacted by members of the USAGM Human Resources department about an administrative investigation regarding the profiles of Mrs. Trump and Dr. Biden published by Voice of America. These reporters and editors were questioned by USAGM officials about their involvement with the pieces and particularly about who wrote particular words about the President, characterizing him as having “disparaged immigrants” and “attack[ed] perceived adversaries on Twitter.”
93. The very existence of this investigation was a blatant violation of the statutory and regulatory firewall—an attack on journalistic independence and integrity designed to chill journalists into conforming to a prescribed party line. Questioning journalists and editors about the Voice of America editorial process, the balance of the Biden/Trump pieces, or the ethical
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standards Voice of America employ in publishing its pieces about Mrs. Trump and Dr. Biden are clear violations of the statutory firewall, and of these journalists’ and editors’ rights under the First Amendment. The First Amendment and federal statute and regulation do not permit government officials to interrogate journalists about the process and editorial judgments of their stories. These investigations are having and will have a chilling effect on news coverage. They must be stopped.
94. The investigation was also plainly content- and perceived viewpoint-based. Reporters and editors have been repeatedly questioned about who wrote particular words about the President, characterizing him as having “disparaged immigrants” and “attacks perceived adversaries on Twitter”—facts, regardless of whom at Voice of America wrote them, that are objectively true.25 The investigation, undertaken by, and at the direction of, political appointees, took place because the piece involved politics, and because the words in question were perceived to be unfavorable to the President. USAGM’s attempt to root out the writer and editor responsible for these words is a reprehensible attempt to retaliate against reporters engaging in expressive content and to penalize them for taking what they perceive to be an anti-Trump viewpoint, despite the clear balance of the profile. Voice of America’s pieces and journalists are balanced. The journalists have integrity. And they do uphold the highest standards of professional journalism. Those questioned in this investigation are all seasoned journalists. That Defendants seek to punish speech and journalistic activity says far more about them than the veteran journalists at Voice of America attempting to do their vital job.
25 See, e.g., @realdonaldtrump, Twitter (Nov. 3, 2019, 7:48 PM) (“[Adam Schiff] is a proven liar, leaker & freak who is really the one who should be impeached!”), https://twitter.com/realDonaldTrump/status/1191155326743195648; @realdonaldtrump, Twitter (Feb. 11, 2017, 7:12 AM) (“Our legal system is broken! ‘77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries.’ (WT) SO DANGEROUS!”), https://twitter.com/realDonaldTrump/status/830389130311921667.
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95. USAGM has procedures for editorial lapses, but none of them were followed in any of these investigations. Specifically, the procedures set four tiers of investigation for USAGM entities. First, for minor corrections, the network handles the entire investigation internally. Second, if there is a problem with a single story or series, network leadership again handles the investigation, but keeps USAGM apprised of progress and results. Third, if there is an individual journalist with a pattern of lapses, the network again responds to the issue and is asked to coordinate with USAGM as well as external journalism experts. Fourth, if there is a widespread and longstanding pattern of ethics violations, USAGM investigates not any individual incident or journalist but rather reviews a random sample of programming and consults with the network to assist with the review of such a big-picture review.
96. In none of these tiers is USAGM empowered to embark on an investigation into specific editorial concerns or empowered to impose punishment. And critically, the policy prohibits USAGM from acting unilaterally without the consultation of the network in question— let alone where the network opposes such action. These procedures exist for good reason. As a former Director Voice of America explained to the House Foreign Affairs Committee: “[I]t’s different when [an investigation] is done by a journalist who has no actual association with either side of the argument, than when it is done by people who have some kind of connection with that.”26 Defendants have deliberately deviated from these procedures, investigating journalism in a clear attempt to coerce, influence, curb, and chill speech.
97. No reputable news organization allows members of its organization who are outside of the firewall to investigate alleged journalistic errors or penalize those errors. These
26 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Amanda Bennett).
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investigations and punishments are having a serious and immediate effect. In fact, as a senior
newsroom manager wrote to Voice of America’s leadership, “We 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.” Defendants’ actions breach the firewall and
invite improper interference, coercion, and pressure on reporting. 22 C.F.R. § 531.3(c).
98. Commandeering Voice of America’s Website. At Pack’s direction, on June 24,
2020, USAGM issued a press release explaining that Voice of America would now be linking to
editorials on its homepage. These editorials are written by the U.S. government and represent its
views. This change had never been discussed with Voice of America’s leadership, nor were they
given any advance notice about it.27 Making this change, without consulting Voice of America’s
leadership, in an attempt to influence the appearance of Voice of America’s content to its
audience, is an attempt to impermissibly influence content in violation of the firewall. See 22
C.F.R. § 531.3(c). Directing that a link to Voice of America’s editorials be displayed on the
Voice of America webpage reflects an effort to exert influence over Voice of America’s content,
and to disguise U.S. government views as Voice of America news. Voice of America’s web
presentation is a journalistic decision, and Pack’s involvement in making this change, and
USAGM’s requiring of it, is a clear breach of the firewall.28
27 The IBA requires United States broadcasting to “include . . . clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies, including editorials, broadcast by the Voice of America, which present the views of the United States Government.” 22 U.S.C. § 6202(b)(3). The statute does not, however, require any USAGM network to publish content written by the government, nor does it give any government official the authority to dictate how opinion pieces are presented and where.
28 Defendants’ actions with respect to the editorials has already caused substantial confusion in the public as to whose views those editorials represent, thereby jeopardizing Voice of America’s credibility as an independent media organization. See Zack Budryk, Biden Would Fire Trump Appointee Leading US Media Agency For “Hijacking” Outlet, The Hill (June 25, 2020), https://thehill.com/homenews/administration/504534-bidenwould-fire-trump-appointee-leading-us-media-agency-for (noting that Mr. Pack “has also announced that Voice of America’s editorials will be more closely aligned with President Trump’s views”); Alex Ward, The Head of
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Voice of America Website at 8:11 pm on August 27, 2020
99. New “Conflict of Interest” Policy and Pretextual Investigation of White House Bureau Chief in Retaliation for Reporting Firewall Violations to Management. On August 31, 2020, a coalition of Voice of America’s journalists sent a letter to USAGM leadership. In that
US Broadcasting Is Leaning Toward Pro-Trump Propaganda. Biden Would Fire Him., Vox (June 25, 2020), https://www.vox.com/2020/6/25/21302625/joe-biden-president-voice-america-fire-michael-pack (noting the “concern . . . about Pack’s vision for Voice of America’s editorials”); Arthur Bloom, Michael Pack Is Right To Rein In State-Funded Broadcasters, The American Conservative (June 23, 2020), https://www.theamericanconservative.com/articles/michael-pack-is-right-to-rein-in-state-funded-broadcasters/ (“VOA’s editorials are cleared by the State Department”).
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letter, the journalists felt “compelled to express [their] profound disappointment with the actions and comments of the chief executive officer of the U.S. Agency for Global Media, 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.”29 By “Pack recklessly expressing that being a journalist is ‘a great cover for a spy,’” the letter said, lives may be in “jeopardy.” They compared Pack’s actions to those taken during the McCarthy Red Scare.
100. In their letter, the Voice of America journalists—including two editors, two foreign correspondents, the White House Bureau Chief, the White House senior correspondent, and the national affairs correspondent—stated that they “watched in dismay as USAGM executives ha[d] been dismissed for . . . attempting to educate [Pack] on avoiding legal violations, as well as guiding him on the firewall that protects VOA’s legally mandated editorial independence.” They expressed that “Pack’s actions risk crippling [Voice of America] programs,” believing that “competent and professional overnight” were necessary to protect “not only the news organizations of USAGM (one of the world’s largest broadcasting entities) and our audiences, but also our stakeholders, including the American public.”30 Although the letter was meant to be a private, internal communication, it was ultimately leaked to the press and was reported on by NPR and other news outlets. Since the letter was published, multiple Voice of America journalists have added their names to it.
101. USAGM did not respond to the journalists’ criticism favorably, answering the letter in a series of Tweets posted on @USAGMPox on September 1. The ominously threatening Tweets stated:
29 Letter from Aline Barros et al., Journalists, Voice of America, to Elez Biberaj, Acting Director, Voice of America (Aug. 31, 2020), https://assets.documentcloud.org/documents/7048656/LettertoVOAdirector.pdf.
30 Id.
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The course of action undertaken by various U.S. federal employees of the Voice of America (VOA), when they submitted an untitled letter dated August 31, 2020 to their Acting Director and the press, was improper and failed to follow procedure. All federal employees of the U.S. Agency for Global Media (USAGM), its broadcast agencies, and grantees are well aware that the U.S. Government provides numerous avenues of recourse to federal employees with genuine complaints. The untitled letter followed none of the prescribed protocols found in standing U.S. Government personnel directives, including those that direct USAGM and VOA federal employees, specifically. Thus, a direct response to this unconventional and unauthorized approach would be inappropriate and unwarranted. USAGM and VOA leadership are handling the choice of complaint transmission as an administrative issue.31 The ominous tweets foreshadowed what was to come. 102. On Sunday, October 4, 2020, Pack sent a policy memo to all staff of Voice of America, the Office of Cuba Broadcasting, Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks, with the subject “Guidance on Conflicts of Interest.” Sending such a memorandum on a Sunday is completely out of the ordinary—and, notably, the memorandum was backdated to October 2, 2020. In the memo, Pack claimed to “clarify policies and provide guidance on” the “[m]anagement of conflicts of interest” which is “a key component of maintaining fairness, objectivity and balance.” Pack did not merely clarify policies, but also pronounced new ones, broadening conflicts of interest to include “reporting on an issue: (1) in which they have a personal interest or (2) have publicly personally expressed a political opinion.”
31 USAGM (@USAGMspox), Twitter (Sept. 1, 2020), https://twitter.com/USAGMspox/status/1300805832427401216.
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103. Pack provides three examples of conduct which paint a distressing picture of what
will give rise to conflicts of interest demanding recusal under this new policy. First:
If a Voice of America (“VOA”) journalist is personally affected by a potential governmental action, then they may not cover that issue. For example, a journalist who is working in the United States on a J-1 visa must follow normal procedures and recuse themselves from any story involving J-1 visas.
Second, a journalist who:
[P]ublicly takes a personal position on an active political issue has a conflict of interest—doubly so if that issue directly affects that individual. For example, a journalist who, in their private capacity, publicly criticizes the U.S. Department of Justice’s leadership for, among other things, implementing the policies and protecting the prerogatives of the Administration must recuse themselves from reporting on the Department and the part of the administration implicated by the criticism.
Third, a journalist who:
[E]xpresses personal views on political topics in their personal social media creates the potential for a conflict of interest . . . [f]or example, a journalist who on Facebook ‘likes’ a comment or political cartoon that aggressively attacks or disparages the President must recuse themselves from covering the President.
104. These purported policies are plainly overbroad and vague, and confer
unconstitutionally unfettered discretion on USAGM to suppress speech at will. As to
overbreadth, every journalist is arguably “affected” by government policy on COVID-19, yet it
cannot possibly be consistent with the highest standards of professional journalism that no
journalist at Voice of America can cover any story about the pandemic. As to vagueness and
unfettered discretion, the policy sets as its prototypical conflict of interest anyone who
“aggressively attacks or disparages the President must recuse themselves from covering the
President.” That vague standard makes clear USAGM’s perspective that criticism of the
administration should be suppressed but fails to articulate what makes “attacks” or
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“disparagement” “aggressive” enough to justify suppressing speech. For that reason, too, the policy confers unfettered discretion to suppress speech—providing Defendants with the opportunity to institute the very type of post hoc justifications for suppressing speech that the Supreme Court has long disallowed.
105. USAGM’s decision to impose this policy violates the First Amendment and breaches the firewall. This conflict of interest policy—on information and belief drafted by those who have little or no experience in journalistic ethics—is a mechanism of controlling and influencing journalistic content, signaling that “attacks” on (i.e., critical coverage of) the President are plainly out-of-bounds. The new “policy” also not only seeks to control journalists but their supervisors as well. The policy memorandum asserted that “[t]he obligation to recuse or mitigate conflicts of interest rests with both the individual journalist and their supervisor. If a journalist fails to recuse themselves, it is the obligation of the supervisor to order recusal.” Promulgating this conflict of interest policy reflects a flagrant attempt to control journalists, their supervisors, and the journalistic content they produce. Promulgating this policy is beyond USAGM’s authority. See 22 C.F.R. § 531.3(c).
106. The vague, overbroad conflict policy also portended yet another firewall breach. Just hours after Pack sent his memo, NPR broke the news that USAGM has been investigating Voice of America’s White House Bureau Chief, Steve Herman for purported bias and conflicts of interest.32 Herman, a veteran journalist and longtime Voice of America correspondent, led and organized the journalists who wrote the August 31 letter. As NPR described, Defendants Dewey and Wuco at Pack’s apparent direction launched a retaliatory investigation into Herman and his
32 David Folkenflik, Political Aides Investigate VOA White House Reporter For Anti-Trump Bias, NPR (Oct. 4, 2020), https://www.npr.org/2020/10/04/919266194/political-aides-investigate-voa-white-house-reporter-foranti-trump-bias.
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storied work as a journalist. Dewey and Wuco have placed Herman’s reporting under a magnifying glass since the letter, and have been watching Herman’s private social media activity for any hint of bias.
107. As part of this retaliatory investigation, Pack and his team prepared a 30-page dossier of materials to build an erroneous case that Herman violated Voice of America’s Best Practices Guide or Social-Media Policies. Defendant Wuco has transmitted a copy of this dossier to Voice of America’s Acting Director, Elez Biberaj, asking Biberaj to do something about Herman, in a clear effort to pressure the Acting Director to take action against Herman. Within that dossier are multiple allegations that Herman’s stories were a “conflict of interest.” In particular, Pack and his team explicitly determined that Herman’s September 8, 2020 story, Trump Defies North Carolina COVID Guidelines With Large Outdoor Rally,33 and his September 10, 2020 story, I Didn't Lie,' Trump Asserts About Seriousness of Coronavirus,34 were conflicts of interest by USAGM. Neither story appears biased on its face. And as NPR explained, “Both stories closely resembled accounts from other news outlets on the events.”35
108. Should Biberaj ultimately be forced to give in to Pack’s pressure and take action against Herman—i.e., forcing him to recuse or worse—that would both disrupt and chill journalistic coverage by removing Voice of America’s White House bureau chief from action mere weeks away from a presidential election and in the midst of a public health crisis. Even if Herman is permitted to retain his position, Defendants’ policy, and their unlawful investigation
33 Steve Herman, Trump Defies North Carolina COVID Guidelines With Large Outdoor Rally, Voice of America (Sept. 8, 2020), https://www.voanews.com/2020-usa-votes/trump-defies-north-carolina-covid-guidelines-largeoutdoor-rally.
34 Steve Herman, I Didn't Lie,' Trump Asserts About Seriousness of Coronavirus, Voice of America (Sept. 10, 2020), https://www.voanews.com/2020-usa-votes/i-didnt-lie-trump-asserts-about-seriousness-coronavirus.
35 Id.
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of Herman and the resulting pressure on Biberaj, are plain attempts to intimidate Herman and undermine his coverage of the Administration in violation of the First Amendment and the firewall.
109. In sum, Defendants’ actions here present three-fold violations of the firewall. First, the retaliatory and plainly pretextual investigation into Steve Herman violates the firewall. USAGM had no basis to reach out and investigate Herman’s journalistic practices. As Representative Michael McCaul, the Ranking Member of the House Foreign Affairs Committee, explained, if the allegations regarding the Herman investigation are “true, this is very troubling and potentially illegal.”36 Second, Defendants’ attempts to pressure Biberaj to take action against Herman for allegedly violating journalistic standards clearly violates the firewall. Third, Defendants’ promulgation of a policy about journalistic ethics, both on its own and as part of the effort to intimidate both Herman and Voice of America leadership, violates the firewall. Defendants again have “attempt[ed] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). That simply is not allowed. Defendants Engage In A Pattern Of Arbitrary And Insidious Gross Mismanagement, In Violation Of The Firewall And The CEO’s Fiduciary Duties And Take Care Obligations
110. Since Defendants took power in June, they have engaged in a pattern of gross mismanagement—making arbitrary and insidious decisions designed to choke the USAGM networks, send a message about their ability to control the networks, and—ultimately—to coerce, intimidate, threaten, and pressure these organizations into agreeing to Defendants’
36 Jessica Jerreat, USAGM Officials Breached Firewall, Committee Chair Says, VOA (Oct. 6, 2020), https://www.voanews.com/usa/usagm-officials-breached-firewall-committee-chair-says.
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journalistic control. Since taking power, Defendants have frozen contracts and budgets. They have imposed hiring freezes that have lasted months longer than ordinary-course freezes imposed during leadership transitions. And they have frozen all technical migrations. Even routine contracts that permit the networks to run their day-to-day operations, such as contracts for toilet paper or cleaning (in the middle of a pandemic) have been frozen. Other routine contracts, such as agreements with distributors to carry Voice of America content, are likewise frozen. The failure to maintain these contracts will result in fewer broadcasters carrying Voice of America stories, fewer individuals being able to access these materials, and an inability to track even the most basic digital metrics for assessing performance.
111. Defendants have also moved money unlawfully—a failure exposing the agency to violations of the Antideficiency Act, 96 Stat, 877, which prohibits federal agencies from making obligations or expenditures in a manner inconsistent with congressional appropriations. Federal employees who violate the Antideficiency Act may be subject to administrative and penal sanctions. Defendants opened up themselves and the agency to such sanctions, by failing to disburse funds that have been allocated through valid appropriations bills that were then signed into law by President Trump—a failure that also exposes the agency to violations of the Congressional Budget and Impoundment Control Act of 1974. The failure to fund grantees is a breach of Defendants’ fiduciary duty and take care obligations and creates a significant legal risk for USAGM. USAGM is the overwhelming source of funding to the grantees, if not their entire source of funding. Yet numerous funds needed to operate the grantees have not been disbursed and no reason has been given for withholding them. They have also moved funds internally without appropriate and legally required authorization.37 Specifically, Defendants moved
37 See Consolidated Appropriations Act, Pub. L. No. 116-93 (2019).
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approximately $3.5 million of Internet Freedom funds from USAGM’s grantee organizations, back to its corporate accounts, without notifying appropriators and getting the funds reapportioned by the Office of Management and Budget. Defendants have also moved $1.8 million from the Office of Policy Research without Congressional authorization.
112. Defendants have engaged in other types of gross mismanagement as well. They have installed as board members of grantee organization loyalists who are woefully unqualified to oversee leading media organizations and are not going to exercise independent judgment if there is an attempted breach of the firewall. They have ignored requests for decisions on key personnel decisions, despite receiving numerous email requests about open positions and positions needing approval. They have ignored these requests almost entirely—effectively denying them without basis and severely hamstringing the agency’s ability to fulfill its mandate.
113. Defendants have also actively put USAGM employees in harms’ way in the context of the ongoing COVID-19 pandemic. During in-person meetings, Defendants refuse to wear masks, and do not social distance. Plaintiff Walsh chaired the Agency’s Emergency Action Committee, which set COVID-19 policies, and Plaintiff Lennon was a member of the committee. The body established extensive policies to protect the health of USAGM employees, but in many instances Defendants have utterly ignored those policies, without replacing them with any effective alternatives.
114. Defendants have also refused to approve policies or practices that would protect agency employees from COVID-19. For instance, Plaintiff Walsh asked for permission from the CEO Office to send a reminder email to all agency employees to wear masks at the office—a request ignored for weeks. When Walsh finally asked then-Chief Operating Officer Andre Mendes why Defendants would not approve of the simple reminder, Mendes advised that the
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new CEO’s team did not want to approve a reminder email about the mask policy because no one in the CEO’s office ever wears a mask and they do not want any attention paid to that fact or to possible disciplinary repercussions of employees failing to follow the policy. The policy is not only a USAGM policy; the D.C. Mayor’s office has ordered that masks be worn in office buildings, and that those in office buildings exclude or eject those who do not wear masks indoors.38 Similarly, Defendants have refused to institute even a simple temperature-screening process for individuals entering the building. While a number of employees worked to set up such a program, Defendants have told them that they will not be implementing it. Instead, Pack has joked about instituting policies that will actually cause his employees to get COVID-19.39
115. Aside from violating Defendants’ duties to the networks and their take care obligations, these actions all violate the firewall. They are designed to turn the proverbial screws on the networks, establish authority, and stifle perceived dissent. At best, Defendants are engaged in gross mismanagement. At worst, a transparent conspiracy to violate the law. Either way, these misdeeds must be stopped.
Defendants’ Misconduct Leads To Continued Bipartisan Intervention And Media Outrage Including Interviews Where Pack Concedes His Unlawful Acts
116. Defendants’ conduct has sparked bipartisan outrage. Representative Eliot Engel initially led the way, noting early on that he believed “USAGM’s role as an unbiased news organization [wa]s in jeopardy under [Pack’s] leadership.” Less than a month into Pack’s tenure as CEO, a bipartisan coalition of seven Senators—including Republicans Marco Rubio, Lindsey Graham, and Susan Collins—sent a letter to Pack expressing their “deep concern” about his
38 D.C. Mayor’s Order 2020-080: Wearing of Masks in the District of Columbia To Prevent the Spread of COVID-19 (July 22, 2020), https://coronavirus.dc.gov/maskorder.
39 The Federalist, How Michael Pack is Draining The Swamp and Rooting Out Bias in Taxpayer Journalism, (Aug. 27, 2020), https://thefederalist.com/2020/08/27/why-public-broadcasting-drifted-left-and-what-can-bedone-to-fix-it/.
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unilateral actions to terminate the heads of some of the USAGM networks and “remov[e] of [the
networks’] boards” for “no specific reason.” The Senators believed Pack’s actions to be so
egregious that they vowed to conduct “a thorough review of USAGM’s funding to ensure that
United States international broadcasting is not politicized and the agency is able to fully and
effectively carry out its core mission.” 40
117. The Senators concluded that Pack’s actions “raise[] questions about the
preservation of these entities and their ability to implement their statutory mission now and in the
future.” Even though clear federal statute and regulation require Defendants to uphold the
highest standards of journalism and abide by the firewall, the Senators “urge[d] [Pack] to respect
the unique independence that enables USAGM’s agencies and grantees” and felt the need to
remind Pack of the obvious, that:
the credibility and independence of these networks [is] required by law, [and] is critical for audiences overseas living under repressive regimes, the network’s brave journalists who often come under threat for their work, and the future of U.S. broadcasting. [T]he United States . . . cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees’ independence so they can act as a bulwark against disinformation through credible journalism.41 118. Days later, on July 3, 2020, members of the House of Representatives issued a
press release after sending a letter to Chairwoman Nita Lowey and Ranking Member Hal
40 Letter from Marco Rubio et al., U.S. Senators, to Michael Pack, CEO, USAGM (July 1, 2020), https://www.rubio.senate.gov/public/_cache/files/20db345a-a326-4a8e-91e7be7a7f420137/EC533D38ED5702A49F6070DF40808FB3.20.07.01-letter-to-michael-pack-re-usagm.pdf.
41 Id.
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Rodgers of the House Committee on Appropriations, Subcommittee on State, Foreign
Operations, and Related Programs, in advance of the Subcommittee's FY 2021 Markup Meeting
“urg[ing] the subcommittee to consider legislative actions that would bolster congressional
oversight of the [USAGM], ensure its journalistic independence, and safeguard its mission.” The
letter carefully articulated all of the “alarming developments” within USAGM, including the
firing of the officers and presidents of USAGM’s networks, removing the independent members
of the grantees’ boards and “replac[ing] them with Pack and political loyalists,” as well as
freezing funding for various programs and personnel. As the letter stated:
The management [Pack] removed were highly respected, experienced, and dedicated to maintaining the independence of USAGM and ensuring that its programming was free from political interference. We are concerned that it is precisely that resistance to politicization of programming and reporting that led to their abrupt dismissal.
We are deeply concerned. . . . Deviating from [best practice] standards will impair the trust built over years in the independence and safety of the tools supported through USAGM. As the United States confronts a rising authoritarian tide around the world, and an aggressive effort by Russia, China, and other powers to undermine the tenets of liberal democracy, USAGM has never been more vital. The strength of USAGM comes directly from providing truth-based reporting and programming that adheres to the standards of professional journalism, precisely the information that autocratic regimes block in favor of propaganda. If the firewall that protects USAGM’s editorial independence is eroded, it will make USAGM ineffective. Rather than providing a counterpoint to autocratic regimes, it would call into question the U.S.’s commitment to democratic values, and risk reinforcing misperceptions that USAGM media outlets are simply state propaganda, no different from Russia Today or others around the world.42
42 Press Release, Reps. Adam Schiff et al., U.S. Representatives, Schiff, Raskin, Engel, Colleagues Send Letter to Appropriations Subcommittee to Bolster Oversight of U.S. Agency for Global Media (July 3, 2020), https://schiff.house.gov/news/press-releases/schiff-raskin-engel-colleagues-send-letter-to-appropriationssubcommittee-to-bolster-oversight-of-us-agency-for-global-media.
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Pack did nothing to allay Congress’s concerns. Instead, he and the other Defendants consistently and purposefully breached the firewall to politicize the programming of USAGM and its networks—the exact fear Congress had articulated.
119. Pack’s blatant breaches of the firewall led Representative Eliot Engel, Chairman of the House Committee on Foreign Affairs, to make yet another statement in August, the same day Pack placed Turner, Powers, Lennon, Walsh, Tran, and Kligerman on administrative leave. Representative Engel admonished Pack for “once again attempting to purge USAGM of the apolitical, career officials who have helped ensure that the agency fulfills its mission to provide unbiased news and information around the world.” Representative Engel continued, stating that
[Pack] is destroying the decades-old legacy of America’s international broadcasting efforts in a clear attempt to transform the agency into an ideological mouthpiece to promote Donald Trump in advance of the election. And, despicably, he or someone in his inner circle leaked the names of career individuals to the New York Post as he was in the process of sidelining them.43 Representative Engel concluded by reminding the American public that “[t]he United States is not a dictatorship, and [Engel] will not stand by as Donald Trump tries to create a Soviet Tass or Chinese Xinhua government mouthpiece through his henchman, Michael Pack.”44 120. In response, Pack doubled down. In an interview with Chris Bedford on Federalist Radio Hour, Pack effectively conceded he violated the law by breaching the firewall, comparing his mission as USAGM CEO to his role as head of the Claremont Institute, an entity dedicated to far-right thinking. This is the type of entity Pack intends to lead Voice of America to be.
43 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Statement on Purge of USAGM Officials (Aug. 12, 2020), https://foreignaffairs.house.gov/2020/8/engel-statement-on-purge-ofusagm-officials.
44 Id.
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121. In continuing to talk about the mission of Voice of America, Pack made clear during his interview that he believed that Voice of America “is supposed to represent the Administration’s point of view along with legitimate criticism but in a full and forthright manner.”45 That is false, and contradicted by statute. Voice of America is chartered to “serve as a consistently reliable and authoritative source of news” and to “represent America, not any single segment of American society,” and certainly not one Administration’s view. This is a clear violation of the firewall: USAGM officials are forbidden from even “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c).
122. When asked about the firewall, Pack said 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.”46 Pack openly mocked the firewall’s protections when he talked about withholding journalist’s J-1 visas because he is worried that since “be[ing] a journalist is a great cover for a spy”—that some of the J-1 visa holders might try and “penetrate[]” USAGM and he needs “to make sure that doesn’t happen,” a suggestion which the Federalist later argued was “reasonable.”47
123. As Jason Rezaian, a writer for The Washington Post who was imprisoned for 544 days in Iran on false accusations of espionage explained to Voice of America, Pack’s comments are “irresponsible and fly in the face of the mandate of this illustrious and long-standing
45 Interview by Chris Bedford, Senior Editor, Federalist, with Michael Pack, CEO, USAGM (Aug. 27, 2020), https://thefederalist.com/2020/09/03/npr-manipulates-federalist-interview-with-voa-executive-on-behalf-ofgovernment-employees-opposing-reform/ (“Pack Federalist Interview”).
46 Id. 47 Id.
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institution . . . . [These] public statements made by Western officials are used against people who are already really vulnerable, who are already being held . . . [T]his could mushroom into another one of those situations where suddenly many honorable hardworking journalists . . . are going to face greater danger.”48
124. Both NPR and The Washington Post also reported on Pack’s interview on the “pro-Trump website The Federalist.” NPR commented that despite Pack’s stance that his job was “to drain the swamp, to root out corruption and to deal with these issues of bias, not to tell journalists what to report,” that “it appears that Pack is, in fact, interested in influencing which stories get told, and how,” citing to multiple instances of the firewall being “explicitly violated by Pack and the team he has brought in.”49 This includes the firing of the Standards Editor, stories being improperly removed from Voice of America’s websites, and the involvement of a political appointee in the Urdu investigation as described above.
125. The Washington Post also reported that “Pack has presented no evidence that anyone at Voice of America is a foreign intelligence agent. Nor has he explained why Voice of America and sister agencies such as Radio Free Europe and Radio Free Asia—media organizations that don’t control sensitive government information—would be an appealing target for penetration by a hostile power.”50
48 Jessica Jerreat, Members of Congress Call on USAGM to Explain J-1 Visa Denials, Voice of America (Sept. 16, 2020), https://www.voanews.com/usa/members-congress-call-usagm-explain-j-1-visa-denials.
49 David Folkenflik, At Voice of America, Trump Appointee Sought Political Influence Over Coverage, NPR (Sept. 2, 2020), https://www.npr.org/2020/09/02/907984631/at-voice-of-america-trump-appointee-soughtpolitical-influence-over-coverage.
50 Sarah Ellison & Paul Farhi, New Voice of America overseer called foreign journalists a security risk. Now the staff is revolting., Wash. Post (Sept. 2, 2020), https://www.washingtonpost.com/lifestyle/style/new-voice-ofamerica-overseer-called-foreign-journalists-a-security-risk-now-the-staff-is-revolting/2020/09/01/da7fa0a8eba2-11ea-ab4e-581edb849379_story.html.
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126. Rather than addressing these criticisms, Pack continues to propound the same rhetoric to anyone who will listen. On September 10, 2020, in an interview on the Sara Carter Podcast, Pack once again claimed that Voice of America and the other USAGM networks are “a natural place for foreign intelligence to be . . . [I]t’s a good place to put a spy if you are Chinese or Iranian or Pakistani intelligence. You can have access to the State Department, you have access to lots of material, you could influence broadcasts back to your home country and there have been high-profile examples of that over our history.”51 He agreed with Carter when she said “there are people and there are . . . intelligence agencies, the Chinese, the Pakistani’s, Afghanistan, . . . I would even say the British. Anybody who could spy, or anybody who could get into the government, could utilize these agencies.” “That’s right,” Pack replied. “We don’t know whether over these 10 years, foreign intelligence agencies have penetrated the Voice of America or the other organizations, and they’ve been a target for foreign intelligence from the very beginning.”
127. But Pack again provided no evidence of any counterintelligence activity within USAGM—because there is none. Nor did he offer any argument as to why his theory was rational. It is not. Contrary to Pack’s assertion, USAGM network journalists do not have a generalized “access” to the State Department or to any materials beyond what private media journalists have. Voice of America reporters do not have access to State Department files or computer systems.
128. In fact, Voice of America reporters’ relationship with the State Department is no different from that of private reporters. Voice of America journalists undergo the same vetting as all other media to obtain credentials (called “hard passes”) issued by the State Department, the
51 Sara Carter Show, supra note 3.
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White House, and the Department of Defense. Serving Voice of America does not provide reporters with any increased access compared to what a reporter from the AP, Reuters, NPR, or CNN would have. Nor do Voice of America reporters generally come into contact with classified materials; again, Voice of America reporters only access those classified materials that they obtain through investigative reporting, in the same manner as NBC, The New York Times, or the Washington Times. Contrary to Pack’s statements, then, there simply is no incentive for foreign intelligence agencies to “infiltrate” these independent news media organizations.
129. Pack’s claim that a foreign spy could “influence broadcasts back to [their] home country” is equally specious. It is effectively impossible for a Voice of America journalist to purposefully yet surreptitiously manipulate reporting so as to benefit a hostile power. Voice of America’s journalists operate as a team, and no broadcast is done in a vacuum. Radio and television segments are reviewed by multiple copy and video editors. The language services are directly monitored by professional journalists employed in the central newsroom, and more importantly, the news services are public broadcasts. Even if a Chinese agent, for instance, sought to publish pro-Chinese news through Radio Free Asia, the stories are printed and publicized around the world. Any influence by foreign spies would be readily apparent both inside and outside of the newsroom.52
52 And indeed, Voice of America and Radio Free Asia have published critical stories of China numerous times. See, e.g., Press Release, Voice of America, A Statement from VOA Director Amanda Bennett (Apr. 10, 2020), https://www.insidevoa.com/a/a-statement-from-voa-director-amanda-bennett-/5367327.html. And Radio Free Asia has published groundbreaking stories unfavorable to China, including its extensive coverage mass detention of Uyghurs in Western China and China’s undercount of COVID-19 deaths in Wuhan. See, e.g., Radio Free Asia, Estimates Show Wuhan Death Toll Far Higher than Official Figure, Voice of America (Mar. 27, 2020), https://www.voanews.com/science-health/coronavirus-outbreak/estimates-show-wuhan-death-tollfar-higher-official-figure. As William Harlan Hale explained, for Voice of America (and its sister networks), “[t]he news may be good. . . . The news may be bad. But we shall tell you the truth.”
(Cont’d on next page)
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130. Also in that same interview, Pack again admitted not only that he breached USAGM’s statutory and regulatory firewall but that he actively intended to do so. He said of the networks that “in some cases they’re not reporting the news even, in an objective, balanced manner . . . [T]he things that are unfair need to be purged” and that they “need[] controls to make sure that [the news] is even handed.”53 He claimed that prior to his appointment, the networks were “essentially not managed for 20 years,” ignoring the storied bipartisan board and prior CEOs that managed Voice of America and the thousands of dedicated journalists who have served their country at the USAGM networks. Contrary to that assertion, as the Office of the Inspector General found in its 2019 inspections of the Agency, USAGM was able to meet its oversight, reporting, and language review requirements, all while “improv[ing] strategic direction at the executive level” and “respect[ing] the broadcasting entities’ editorial independence.”54
131. The implication of Pack’s remarks is clear: Pack disagrees with the content of Voice of America’s reporting and editorial choices, and intends to manage those choices and to ensure people at Voice of America “suffer the consequences” for what he perceives as a “leftwing, leftward bias” inherent to media. As to purportedly biased coverage, Pack has said he was “shocked” at the bias he encountered, and rebuked previous Agency leadership for their treatment of bias, which he equated to “at the most, a slap on the wrist.” He expressly admitted that “we [at USAGM] are continuing to look into it” and that USAGM has worked “to hold people accountable and do a complete investigation” of alleged breaches of journalistic
53 Sara Carter Show, supra, note 3. 54 Office of Inspector Gen., U.S. Dep’t of State, Targeted Inspection of the Governance of the United States
Agency for Global Media 5, 7 (Apr. 2019), https://www.oversight.gov/sites/default/files/oig-reports/ISP-IB-1922.pdf.
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practices—a clear firewall violation. Pack further conceded that USAGM had personal involvement in the resulting disciplinary actions for this “biased” coverage: “[P]eople all the way up the chain have had varying degrees of disciplinary action.”
132. Pack’s own bias against his own agency staff was palpable in the Carter interview. He accused prior public servants at the agency of “covering up things” during his confirmation process. He claimed that his confirmation was held up because “things happened that they were afraid that we were going to expose.” He has offered no evidence of these claims. In fact, the alleged subject of the purported cover up—flaws in the security clearance process at USAGM—was an acknowledged problem on which USAGM had worked extensively to take corrective action long before Pack arrived. Pack and his confirmation “sherpa,” Defendant Cullo, refused numerous offers for briefings from career Agency senior staff, including Plaintiffs, related to all Agency and network operations, strategic plans, and initiatives. Just because Pack had no knowledge of how USAGM functioned prior to his ascension does not mean the dedicated civil servants were working to cover things up.
133. Pack’s rhetoric puts tens if not hundreds of bona fide reporters at risk of serious harm: The CEO of their own agency has branded Voice of America reporters as possible spies, many of whom work around the world, often in countries hostile to the free press. If anything, Pack’s irresponsible statements are a gift to the world’s autocrats, advancing their interests in delegitimizing the very free press meant to counter autocratic disinformation and propaganda. Although it is true that government auditors deemed USAGM’s background check procedures insufficient in certain areas, that fact alone does not render USAGM’s networks a hotbed of espionage. Pack’s view otherwise is contrary to all reason—so divorced from reality that it evidences that his reason for “purging” journalists and employees is at best mere pretext to
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justify an unlawful inquisition into journalistic practices designed to convert unlawfully the USAGM networks into governmental propaganda and to root out his imagined “deep state” conspiracy. As one congressman put it during a hearing before the House Foreign Affairs Committee:
Mr. Pack, without evidence, has made libelous claims, really, that, were these journalists to go get a job somewhere else in another country, could threaten not only their livelihoods, but their safety. When somebody from the United States government has labeled a journalist, a spy, who is going to go trust them in another country? Who is going to go hire them somewhere else?55 134. Pack, during the Carter interview, explained what he believed his mission to be: “Our ideas are under attack, and they are, our enemies are ramping up their information and disinformation campaigns, and we really need to ramp ours up, and defend American ideas and principles.”56 Despite the decades of work to establish Voice of America and its sister networks as exporters of America’s great tradition of freedom of the press, Pack equated the USAGM networks with raw propaganda and disinformation. He then repeated his position that the networks need to publish “the administration’s view,” and said that “if [the Agency] doesn’t fulfill its mission, it will not survive.” 135. Pack fundamentally misunderstands the mission and virtues of the agency he leads. The networks are not propaganda. They are not messaging devices for the Administration’s views. To the contrary, the very independent media he seeks to destroy is the best exemplar of America’s ideals and values that this country can share with the world and the best way to combat national security threats from disinformation. To equate USAGM journalists
55 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Rep. Joaquin Castro).
56 Sara Carter Show, supra, note 3.
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with the disinformation campaigns they were created to combat is a threat to U.S.-funded
journalism and to the entire nation.
136. Recognizing these threats, Congress is taking Pack’s unlawful actions seriously.
Pack was subpoenaed to testify before the House Foreign Affairs Committee on September 24,
2020, to explain the “outrageous actions since he took control of USAGM.” Pack “br[oke] his
commitment” and failed to appear “in defiance of [that] subpoena.”57
137. Shortly after the conflicts of interest policy was released, Representative Engel
yet again publically rebuked Pack’s actions over the last couple of months, calling his tenure a
“disaster” and urging Voice of America’s acting director to “ignore any attempt by USAGM
management to improperly interfere in the service’s work”:
One of Michael Pack’s first actions as USAGM’s CEO was to remove Voice of America’s standards editor, a breach of the firewall meant to protect VOA and our other broadcasters from interference by any administration. Hobbling VOA’s ability to police itself, Mr. Pack is now sending his right-wing political appointees after a respected and experienced journalist who recently authored stories providing unbiased reporting on President Trump’s handling of the coronavirus. Mr. Pack’s attempt to tell the broadcast services more broadly how to deal with perceived conflicts of interest likewise breaches the independence of those services and their journalists. . . .58 Plaintiffs Have Suffered, And Continue To Suffer, Irreparable Harm Due To Defendants’ Repeated Breaches Of The Firewall And Each Plaintiff Has Standing To Bring This Action. 138. Each of the Plaintiffs has suffered and continue to suffer irreparable harm as a
result of Defendants’ ongoing efforts not only to breach but also to demolish the firewall. Their
57 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Chairman Rep. Eliot Engel).
58 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Statement on USAGM Officials Breaching the “Firewall” and Targeting VOA Journalist (Oct. 5 2020), https://foreignaffairs.house.gov/2020/10/engel-statement-on-usagm-officials-breaching-the-firewall-andtargeting-voa-journalist.
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careers have been affected and their reputations attacked and maligned. Each of the Plaintiffs has worked—some of them literally for decades—to support and build the journalistic efforts at Voice of America and the other USAGM entities, but Defendants are destroying the agency entirely. Plaintiffs’ jobs—current and, for those placed on leave and planning to return, future— are harmed every day.
139. With Voice of America’s independence at risk, its credibility is necessarily at risk as well. Hiring qualified journalists will be more difficult. Reporting will be more difficult. Indeed, many of the Agency’s most qualified and dedicated civil servants have left voluntarily, due to the conditions to which they have been subjected. When Pack took office, the Agency had 12 career Senior Executive Service (SES) employees; now there are four. The Acting Director of Congressional Affairs left the Agency to move to the Department of Defense, while the chief litigator within the General Counsel’s office left to join the Department of State. The Deputy Chief Financial Officer departed as well. Foreign governments are already pointing to Pack’s encroachments on Voice of America as an “embarrassing situation” and that its content will be met “with suspicion in targeted countries.”59 Agency personnel fulfilling their duties as public servants to tell America’s story and to export one of America’s greatest products—free speech—will be fundamentally harmed.
140. The actions of Defendants are also directly stifling and chilling protected activity and speech. In an editorial meeting in September 2020, in fact, newsroom managers at Voice of America killed multiple stories on political issues specifically because of the increased scrutiny, the investigations, and the risks of retaliation by Defendants. Voice of America added a third
59 Li Qingqing, Ironic for US propaganda machine to expel foreign journalists, China’s Global Times (Aug. 24, 2020, 11:08 PM), https://www.globaltimes.cn/content/1198736.shtml.
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copy editor to all political stories, to avoid accusations of bias—by way of comparison, other outlets have at most one copy editors per story. Requiring more copy editors to review every political piece slows the editorial process, hampering coverage and prohibiting Voice of America from covering the “new” in “news.” At the same time, reporting has been watered down to the point of self-censorship, so as to not give Defendants any argument—even an unreasonable one—that a published story could be interpreted as pro-Biden. Voice of America employees throughout have recognized an increase in self-censorship that grows with each additional breach of the firewall.
141. In addition, USAGM political appointees are beginning to take direct steps towards silencing and censoring Voice of America journalists in their speech activities outside of the newsroom. On information and belief, Defendant Wuco, an adviser hired by Pack to assist him in the front office of USAGM, has put pressure on the Acting Director of Voice of America to take disciplinary action against Voice of America journalists for social media activity Wuco has deemed to be biased and inconsistent with journalistic ethics. To Plaintiffs’ knowledge, Wuco has never been a journalist.
142. As a result of Defendants’ actions, Voice of America’s journalism has been severely hampered. As of October 2, 2020, for instance, nearly 200 positions were open at Voice of America that Defendants prohibited the network from filling. According to an internal Voice of America assessment:
The Agency’s hiring freeze and non-renewal of J-1 work authorizations and [personal service contracts] will have long-term consequences by crushing morale and diminishing VOA’s brand and reputation, handicapping our ability to recruit top professionals and journalists in the future. Current work loads are not sustainable, and staff burnout and rising overtime costs are a concern.
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The internal assessment further indicated that numerous programs and even several smaller language services might have to close. As a result of Defendants’ activities, the assessment made clear that “VOA will lose affiliates, credibility, audience, and standing in many countries, allowing competitors from hostile competitors to fill the void,” including, but not limited to, organizations like China’s China Central Television (CCTV).60
143. Defendants’ actions are also having a severe effect on Voice of America’s language services. Voice of America has had to cancel all Hausa language television partner stations, which have a target audience of 220 million people, and has had to cancel Hausa radio and Twitter content that targets young people who are most vulnerable to extremism. Defendants have also caused a severe shortage of editors for the Mandarin service, limiting news coverage and analysis and cancelling a popular program called “China on Twitter.” Voice of America has similarly had to reduce or cancel Russian-language, Iranian, and Korean programming, and has been forced to halt development of new programs specific to issues in Venezuela. Critically, too, Defendants’ personnel interference has affected quality control and editorial oversight, including, as the Voice of America internal assessment described, “[u]nacceptable adverse impact[s] on editorial oversight” as a result of insufficient personnel.
144. Voice of America cannot continue to function as required by law when placed under these types of pressures. And its reporters, facing serious and personal risks to their future—and for some foreign correspondents, their safety—have been and unquestionably will
60 Further harming Voice of America’s global credibility, Pack has publicly maligned the USAGM networks’ journalism as “substandard,” USAGM Denounces Substandard Journalism Within Federal News Networks; Agency Publishes Clarification of Federal Reporting Expectations, USAGM Press Release (Oct. 6, 2020), https://www.usagm.gov/2020/10/06/usagm-denounces-substandard-journalism-within-federal-news-networksagency-publishes-clarification-of-federal-reporting-expectations/, even as Voice of America recently won an award for its content, prevailing over Frontline and NBC News in awards for longform digital video storytelling. See Shoura, Online Journalism Awards, https://awards.journalists.org/entries/shoura/.
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be chilled in their news coverage. This is the very type of irreparable harm that the First Amendment and the firewall are meant to protect against.
145. Many journalists, both within Voice of America and the related entities, would be plaintiffs in this action were it not for Defendants’ persistent and ongoing breaches of the firewall and their retaliation. These journalists have been hindered in joining this action as a result of Defendants’ misdeeds. Specifically, journalists reasonably fear the type of retaliatory action suffered by Steve Herman, Plaintiffs, and others. Defendants have shown themselves ready to retaliate against anyone who would stand in the way of their campaign to control the broadcasting networks and influence their content. Journalists also are unable to pursue their claims for fear that, if they publicly advance these claims, the new Conflicts of Interest policy will take them off their beat and leave their already-stretched-thin colleagues without sufficient journalistic support to fulfill Voice of America’s mission. They also fear being unfairly castigated as biased. Journalists’ careers and their ability to engage in expressive activity rise and fall with the public’s perception of their credibility, objectivity, honesty, and balance in their reporting, editing, and management of a news organization. Any attack upon a journalist’s credibility imperils her career and threatens her ability to engage in protected First Amendment activity. Journalists cannot participate in this action without risking not only their position at Voice of America in the face of Defendants’ pattern of retaliation and unlawful activity but also their reputation for balance and impartiality.
FIRST CAUSE OF ACTION Violation of Administrative Procedure Act, 5 U.S.C. § 706(2): Defendants’ Actions Are Arbitrary, Capricious, Unconstitutional, Or Otherwise Not In
Accordance With Law 146. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein.
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147. Individually and collectively, Defendants’ numerous firewall violations constitute “final agency action[s] for which there is no other adequate remedy.” 5 U.S.C. § 704.
148. Under the Administrative Procedure Act, this Court is empowered to “hold unlawful and set aside agency action, findings, and conclusions found to be”: (1) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; (2) “contrary to constitutional right, power, privilege, or immunity”; (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”; or (4) “without observance of procedure required by law.” 5 U.S.C. § 706(2).
149. Defendants’ firewall breaches are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Defendants’ conduct infringes upon the First Amendment right to freedom of the press and the right to engage in protected First Amendment activity, and is unconstitutional retaliation and unconstitutional discrimination based on perceived viewpoint. Defendants’ actions—including their perceived-viewpoint discrimination—are presumptively unconstitutional, and because Defendants have no legal or rational justification for their misconduct, that conduct is unconstitutional. In fact, the only reasonable inference to draw from Defendants’ conduct is that Defendants intended to penalize those who have a perceived viewpoint that differs from Defendants’ political perspective. Defendants’ numerous breaches of the firewall therefore also constitute unconstitutional retaliation—actions undertaken to penalize Plaintiffs and others for engaging in First Amendment protected activity.
150. Defendants’ conduct is also “not in accordance with law,” and is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (2)(C). Defendants’ misconduct violates the statutory and regulatory firewalls, which exist to
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protect the USAGM journalists’ professional independence and integrity and to enable them to operate within the highest professional standards of broadcast journalism. See 22 U.S.C. §§ 6202, 6204(b); 22 C.F.R. § 531.3. Defendants are forbidden from even “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). Yet that is precisely what they have done, over and over again attempting to coerce, intimidate, threaten, pressure, and interfere. Defendants’ gross corporate mismanagement also violates the firewall in that it seeks to strangle the networks and coerce them into submission and because it violates the statutory take care clause, which requires that Defendants “respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the Board.” 22 U.S.C. § 6204(b).
151. Defendants’ firewall breaches are also “arbitrary and capricious.” 5 U.S.C. § 706(2)(A). Defendants’ conduct has no legitimate rationale and directly conflicts with the law, regulation, and the interests and mission of USAGM, the networks, and their employees. To date, Defendants’ expressed rationales for their misdeeds are their efforts to “drain the swamp,” root out the “deep state,” and attempt to prohibit “spies” from infiltrating the networks. These rationales are the height of irrationality—the product of baseless conspiracy theories devoid of any evidence in support.
152. Defendants’ misconduct has harmed and continues to harm the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all USAGM stakeholders’ and journalists’ futures. Defendants’ conduct has resulted in the killing
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of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
153. As a result of Defendants’ actions, therefore, Plaintiffs have suffered and continue to suffer irreparable harm.
SECOND CAUSE OF ACTION Injunctive Relief Under The First Amendment 154. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 155. Defendants’ firewall breaches violate the First Amendment by, including but not limited to: (A) unconstitutionally restraining rights under the First Amendment’s guarantees of free speech and freedom of the press; (B) unconstitutionally retaliating for activity protected under the First Amendment; (C) unconstitutionally discriminating based on perceived viewpoint; and (D) unconstitutionally imposing a vague and overbroad conflict of interest policy that confers on them unconstitutionally unfettered discretion to suppress speech. 156. Plaintiffs are civil servants engaged in the work of supporting journalists, and these journalistic activities are entitled to First Amendment protection under the freedom of the press clause and the free speech clause of the First Amendment. Defendants have deprived USAGM journalists of their First Amendment rights to freedom of speech and freedom of the press by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the
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USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants have also imposed an overbroad and unconstitutionally vague conflict of interest policy that confers on them unfettered discretion to suppress speech. Defendants’ actions have impacted the content of news coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the First Amendment. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation.
157. By interfering with the content of coverage and personnel, Defendants have prevented the USAGM networks and journalists from making independent decisions about what news to cover and how to cover it, in violation of the First Amendment. To date, Defendants’ expressed rationales for their misdeeds are their efforts to “drain the swamp,” root out the “deep state,” and attempt to prohibit “spies” from infiltrating the networks. These rationales do not satisfy any tier of First Amendment scrutiny.
158. Defendants have retaliated against journalists and supporting personnel for engaging in expressive conduct and because Defendants perceive that certain people’s viewpoints differ from their own. Defendants perceive that USAGM journalists and Plaintiffs are liberal, anti-Trump and members of the “deep state.” Defendants’ efforts to interfere with the content of Plaintiffs’ news coverage and to undermine the efficiency of their organizations were undertaken to retaliate against and limit speech and journalistic activities. Defendants have made clear that coverage of the Trump Administration’s politics and policies that is found to be insufficiently complimentary will be met with reprisal, chilling the exercise of First Amendment rights. This is textbook unconstitutional retaliation and discrimination based on perceived-
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viewpoint. Defendants’ conduct is presumptively unconstitutional, and Defendants can offer no compelling rationale to justify it.
159. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ and journalists’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
160. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
THIRD CAUSE OF ACTION Injunctive Relief for Violation of the Statutory Firewall, 22 U.S.C. §§ 6202, 6204
161. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein.
162. In creating USAGM (and its predecessors) and its networks, Congress created a statutory firewall to protect the independence and integrity of its journalists and their reporting. Federal law provides that “United States international broadcasting shall . . . be conducted in accordance with the highest professional standards of broadcast journalism” and shall “be based on reliable information about its potential audience.” 22 U.S.C. § 6202(a)(5)–(6). In addition, “United States international broadcasting shall include . . news which is consistently reliable and authoritative, accurate, objective, and comprehensive” and which is “a balanced and comprehensive projection of United States thought and institutions, reflecting the diversity of United States culture and society.” 22 U.S.C. § 6202(b)(1)–(2).
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163. Congress recognized that, to be effective, “the Voice of America must win the attention and respect of [the] listener[].” 22 U.S.C. § 6202(c). To meet that goal, Congress stated that Voice of America will “serve as a consistently reliable and authoritative source of news,” and that its news “will be accurate, objective, and comprehensive.” 22 U.S.C. § 6202(c)(1). Voice of America “will represent America, not any single segment of American society, and will therefore present a balanced and comprehensive projection of significant American thought and institutions.” 22 U.S.C. § 6202(c)(2). And when Congress created the office of the CEO, it required the CEO to “respect the professional independence and integrity” of its broadcasting services and grantees. 22 U.S.C. § 6204(b).
164. As officers of USAGM and its associated entities, Defendants are bound by the statutory firewall.
165. Defendants have egregiously, aggressively, and unabashedly violated the firewall by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants’ actions have impacted the content of Plaintiffs’ coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the statutory firewall. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation, which in turn
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impacts and influences news coverage. Defendants’ conduct breaches the statutory firewall, ignoring the journalists’ professional independence and integrity and preventing the USAGM networks from operating within the highest professional standards of broadcast journalism.
166. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
167. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
FOURTH CAUSE OF ACTION Injunctive Relief for Violation of the Regulatory Firewall, 22 C.F.R. § 531.3 168. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 169. The Broadcasting Board unanimously adopted the Firewall Regulation to protect the professional independence and integrity of its journalists and their reporting. See 22 C.F.R. § 531.3(a). This regulatory firewall remains in place today. The regulatory firewall exists between the news divisions of USAGM networks, everyone else in the organization, and the Executive Branch of the U.S. Government. 22 C.F.R. § 531.3(b). “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by the highest standards of professional journalism.” 22 C.F.R. § 531.3(d).
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170. The Firewall Regulation is violated when any person within the Executive Branch or within USAGM but outside of its news divisions “attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities. It is also violated when someone inside the newsroom acts in furtherance of or pursuant to such impermissible influence.” 22 C.F.R. § 531.3(c). The firewall also limits Defendants’ “direction and oversight” to those activities “that those in equivalent leadership positions in an organization overseeing other reputable news organizations may provide, in a manner consistent with the highest standards of professional journalism.” 22 C.F.R. § 531.3(e)(3).
171. Defendants have egregiously, aggressively, and unabashedly violated the firewall by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants’ actions have impacted the content of Plaintiffs’ coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the statutory firewall. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation, which in turn impacts and influences news coverage. Defendants’ conduct reflects actions that no one “in
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equivalent leadership positions in an organization overseeing other reputable news organizations” would take. Defendants’ conduct breaches the regulatory firewall, ignoring Plaintiffs’ professional independence and integrity and preventing Plaintiffs from operating within the highest professional standards of broadcast journalism.
172. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
173. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
FIFTH CAUSE OF ACTION Breach of Fiduciary Duties and Statutory Take Care Clause, 22 U.S.C. § 6204(b)
(Against Chief Executive Officer Michael Pack) 174. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 175. As Chief Executive Officer of USAGM, Michael Pack owes a fiduciary duty to USAGM and its associated entities. To that end, Congress included a take care clause in the statute establishing the office of Chief Executive Officer, which requires that the Chief Executive Officer “respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the Board.” 22 U.S.C. § 6204(b). 176. Michael Pack has breached his fiduciary duties and violated the statutory take care clause through his gross mismanagement of USAGM and its networks. Pack’s actions, including strangling the entities of funds, failing to complete even ministerial duties, ignoring
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essential contracting needs, and other misdeeds, have prevented USAGM from accomplishing its objective of providing consistently reliable and authoritative, accurate, objective, and comprehensive news and information. Defendants have also actively breached their fiduciary duties and the take care clause by engaging in unsafe COVID-19 practices, requiring even those with serious health conditions to come into the office, and failing to take preventative actions like wearing protective masks and engaging in social distancing.
177. As a result of Defendants’ actions, Plaintiffs, as employees of and stakeholders in USAGM and its networks, have suffered and continue to suffer irreparable harm.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter each of the following forms of relief: a. A preliminary and permanent injunction, that:
i. Enjoins Defendants from violating the First Amendment, and the statutory and regulatory firewall;
ii. Enjoins Defendants from retaliating against Plaintiffs and any journalists or employees of USAGM, Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Company for attempting to protect the firewall, for participating in this action, or for otherwise attempting to exercise their First Amendment rights;
iii. Prohibits Defendants from discriminating against Plaintiffs and any journalists or employees of USAGM, Voice of America, Radio Free Asia, Radio Free
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Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks on the basis of their perceived viewpoint; iv. Requires Defendants to reinstate Steve Springer as Standards Editor of Voice of America or to permit Voice of America to hire the Standards Editor of the Voice of America leadership’s choice; v. Enjoins Defendants from hiring, firing, or otherwise interfering with journalistic personnel decisions at Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks, Inc.; vi. Enjoins Defendants from conducting any and all investigations into potential lapses of journalistic standards and ethics at Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks, or from directing, pressuring, coercing, threatening, interfering with, or otherwise impermissibly interfering with such investigations, except pursuant to the Procedures for Editorial Lapse; vii. Enjoins Defendants from attending or seeking to attend newsroom meetings, from speaking to journalists or leadership (except the appointed Directors or Presidents) of Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks about editorial decisions, journalistic standards, or coverage decisions;
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viii. Enjoins any enforcement of USAGM’s conflict of interest policy, imposed on October 4, 2020, which is overbroad and vague, and confers upon USAGM unfettered discretion to suppress speech;
ix. Requires Michael Pack to fulfill his ministerial duty of signing J-1 visa sponsorship requests, allowing Voice of America to hire or retain needed journalists or in the alternative requiring Pack immediately to publish meaningful, written standards that govern his review of any purported discretion used to determine whether to sign J-1 visa forms;
x. Establishes an independent monitor to ensure Defendants’ compliance with this Court’s order, the First Amendment, and the statutory and regulatory firewall;
b. A declaration that Defendants’ conduct as alleged herein violated the First Amendment;
c. A declaration that Defendants’ conduct as alleged herein violates the statutory and regulatory firewalls that surround USAGM networks; and
d. An order granting Plaintiffs costs, fees, and disbursements incurred in connection with these proceedings and such further relief as this Court deems just and proper. JURY DEMAND
Plaintiffs hereby demand a jury trial as to all matter properly triable by jury.

Dated: October 8, 2020

Respectfully submitted, GIBSON, DUNN & CRUTCHER LLP /s/ Theodore J. Boutrous, Jr. _________ Theodore J. Boutrous, Jr. (D.C. Bar No. 420440) 333 South Grand Avenue

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Case 1:20-cv-02885-BAH Document 1 Filed 10/08/20 Page 84 of 84 Los Angeles, California 90071 (213) 229-7000 tboutrous@gibsondunn.com Mylan L. Denerstein (pro hac vice forthcoming) Zainab Ahmad (admission pending) Lee R. Crain (D.D.C. Bar No. NY0337) Alexandra Grossbaum (pro hac vice forthcoming) Lauren Kole (pro hac vice forthcoming) 200 Park Avenue New York, New York 10166-0193 Tel: 212.351.4000 MDenerstein@gibsondunn.com Zahmad@gibsondunn.com LCrain@gibsondunn.com AGrossbaum@gibsondunn.com LKole@gibsondunn.com Joshua S. Lipshutz (D.C. Bar No. 1033391) GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 (202) 955-8500 JLipshutz@gibsondunn.com Counsel for Plaintiffs
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 Case 1:20-cv-02885-BAH Document 36 Filed 11/04/20 Page 1 of 95

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRANT TURNER c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
MARIE LENNON c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
SHAWN POWERS c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
MATTHEW WALSH c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
HOANG OANH TRAN c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
KELU CHAO c/o Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036;
Plaintiffs,
v.
U.S. AGENCY FOR GLOBAL MEDIA Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;

Case No. 20-cv-2885 AMENDED COMPLAINT

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MICHAEL PACK Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
SAMUEL E. DEWEY, Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
DIANE CULLO Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
EMILY NEWMAN Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
MORVARED NAMDARKHAN (aka MORA NAMDAR) Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
FRANK WUCO Wilbur J. Cohen Federal Building 330 Independence Avenue SW Washington, DC 20407;
Defendants.
INTRODUCTION
1. This case is about the insidious politicization of journalism that threatens not only
our nation’s publicly funded, independent media but also our nation’s reputation for modeling
and defending a free press around the world. In the United States, publicly funded journalism is
protected from government interference by a firewall much like privately funded journalism is
protected from corporate interference by similar mechanisms. As a former Director of Voice of
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America recently explained to the House Foreign Affairs Committee, “a firewall of sorts . . . exists in virtually every news organization . . . to allow journalists to operate independently without reference to any kind of pressure.”1 Unlike in the private sector, the firewall protecting publicly funded journalism is enshrined in law: it stands between government officials on one side, and reporters on the other, protecting against even the perception that iconic outlets like Voice of America, Radio Free Europe, and Radio Free Asia are mere mouthpieces for the U.S. government. The firewall protects the credibility of these networks, which is crucial to completing their mission of spreading free speech and independent media to audiences living under oppressive regimes across the globe.
2. Defendants include the recently installed leaders of the United States Agency for Global Media (“USAGM”), which supports Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and other independent news networks. USAGM networks have a weekly audience of over 350 million people, many of whom live in countries like Iran and China, where the notion of a free press, and of credible, reliable journalism, is entirely foreign.
3. The USAGM networks export America’s greatest products: free speech and freedom of the press. The networks serve the vital national goal of combatting disinformation worldwide—fighting propaganda and deception with truth and shoe-leather journalism. It was Radio Free Asia, for instance, that broke the story of how China had underreported COVID-19 deaths in Wuhan, simply by calling funeral parlors and adding up the numbers. And it was Voice of America and Radio Free Europe/Radio Liberty that created a 24/7 Russian-language global digital network to counter Russian propaganda worldwide.
1 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Amanda Bennett).
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4. As Defendants seek to tear down the integrity and credibility of the USAGM

networks, the vacuum will be filled by propagandists whose messages will monopolize global

airwaves without Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Middle

East Broadcasting Networks, and Radio y Television Martì as credible voices to the contrary.

5. The USAGM networks’ ability to maintain credibility amongst their worldwide

audience depends significantly on their ability to demonstrate their independence from the U.S.

government. The firewall is so important to USAGM’s model, in fact, that it has been codified

into law: Section 6204(b) of Title 22 of the United States Code provides that the Chief Executive

Officer of USAGM “shall respect the professional independence and integrity of” Voice of

America and the other USAGM networks. And Section 531.3(c) of Title 22 of the Code of

Federal Regulations provides that the required “firewall” prohibits “any person within the

Executive Branch or a Network, but outside the newsroom” from even “attempt[ing] to direct,

pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the

USAGM networks . . . in the performance of their journalistic and broadcasting duties and

activities.” (emphasis added). The firewall signifies that even though the networks are state

funded, they are affirmatively not state-run. They are free, independent journalistic outlets

designed to function like the most credible and reputable private news organizations in the

world. The primary currency of the USAGM networks is their credibility, which turns largely on

their political independence as guaranteed by the firewall. Indeed, the firewall that exists to

separate USAGM-funded journalism from any political considerations is more robust even than

those firewalls that exist within private news organizations.

6.

Federal law requires that the USAGM networks operate under ethical standards

as credible and reputable news organizations. Specifically, the International Broadcasting Act

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provides that USAGM networks must “conduct” themselves “in accordance with the highest professional standards of broadcast journalism.” 22 U.S.C. § 6202(a)(5). One such professional standard—a practice built into the fabric of every great media organization—requires a firewall between the newsroom and the publishers, codified in 22 U.S.C. §§ 6202, 6204(b), and 22 C.F.R. § 531, et seq. Simply put, the highest standards of professional journalism require journalism to be free of interference from an organization’s business team. Journalists must be free to write, report, publish, and broadcast stories about their outlet’s sponsors, advertisers, and even publishers because the credibility of a news organization is its business model. Without offering news people can trust, journalism cannot survive.
7. Defendants have chosen to disregard that principle entirely. They include the newly installed CEO of USAGM, Michael Pack, his team of political appointees, and others—all of whom have engaged in a campaign of unconstitutional and unlawful conduct to try to accomplish exactly what the firewall prohibits: “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks . . . in the performance of their journalistic and broadcasting duties and activities.” 22 U.S.C. § 531.3(c) (emphasis added).
8. First and foremost, Defendants’ systematic dismantlement of the firewall began with the removal of those who sought to protect it. They removed, for instance, David Kligerman—the General Counsel of USAGM who wrote the agency-promulgated regulation articulating the contours of the firewall, codified at 22 C.F.R. § 531, et seq. (the “Firewall Regulation”), and knows the exact limit of USAGM’s authority. They also removed Steve Springer, the Standards Editor of Voice of America—a journalist with over 40 years of experience in journalistic ethics and best practices—for the purpose of sidelining Voice of
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America’s strongest and best internal institutional knowledge of how the firewall works. Defendants have also fired journalists like Executive Editor of Radio Free Asia Bay Fang, attempted to reassign journalists like Voice of America’s New York Bureau Chief, and refused to allow Voice of America to hire and retain foreign journalists critical to running its dozens and dozens of foreign language services—employment actions that breach the firewall and have had the cumulative effect of suppressing and chilling journalistic expression. Pack also regularly and recklessly disparages network journalists, claiming that being a journalist at one of the networks is “a great cover for a spy,”2 and that those same journalists are “not reporting the news . . . in an objective balanced manner.”3
9. Secondly, Defendants have engaged in an improper and aggressive course of investigatory conduct designed to effectuate control over and chill journalistic activity. Defendants have conducted investigations on behalf of USAGM into the conduct of network journalists on the other side of the statutory firewall. The investigations appear to be driven primarily by the content and perceived viewpoint of the pieces at play. And regardless of the merit of any particular investigation, the firewall clearly mandates that investigations into journalistic conduct should be done by the networks themselves to avoid unlawfully influencing content or pressuring journalists into a particular perspective in their coverage.
10. The investigations Defendants have launched are transparently partisan. For example, Defendants investigated a video posted on Voice of America’s Urdu service on the
2 Tristan Justice, NPR Manipulates Federalist Interview with VOA on Behalf of Government Opposing Reform, The Federalist, (Sept. 3, 2020), https://thefederalist.com/2020/09/03/npr-manipulates-federalist-interview-withvoa-executive-on-behalf-of-government-employees-opposing-reform/.
3 Sara Carter Show: Michael Pack reveals stunning foreign influence in federal media agencies, Radio America (Sept. 10, 2020), https://podcasts.apple.com/us/podcast/the-ricochet-audio-network-superfeed/id960814054.
(Cont’d on next page)
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basis that it appeared to favor former Vice President Joe Biden in the 2020 presidential election. Similarly, Defendants have interrogated numerous reporters and copy editors about a single line in a profile of First Lady Melania Trump that stated that President Trump “has disparaged immigrants and regularly attacks perceived adversaries on Twitter”4 Over the course of these illegal investigations, Defendants—who are not journalists and have no experience with journalistic ethics whatsoever—have ordered the termination of journalists, interrogated witnesses, inquired of reporters as to whether stories are “balanced” where stories appear to misalign with Defendants’ political perspectives, and demanded that journalists name names to identify others to interrogate.
11. Third, and perhaps most dramatically, Defendants have moved to repeal the firewall regulation and to cast aside the firewall altogether. On Monday October 26, 2020, Defendants—just fifty minutes before they filed a brief opposing Plaintiffs’ motion for a preliminary injunction in this very matter—purported to repeal the firewall regulation, asserting both that the firewall violated the very statute that conferred on the networks their editorial independence and that the firewall violated Article II of the United States Constitution. Defendants concluded that these statutes and Article II actually required them to take control of journalistic content.
12. These actions, including the putative repeal of the firewall regulation, are unconstitutional and unlawful; they must cease immediately. Defendants have retaliated against members of USAGM’s senior leadership, including several of the Plaintiffs, as well as against Voice of America journalists who have engaged in protected expressive conduct, and have
4 But see, e.g., Eugene Scott, Trump’s most insulting—and violent—language is often reserved for immigrants, Wash. Post, (Oct. 2, 2019, 3:21 PM EDT), https://www.washingtonpost.com/politics/2019/10/02/trumps-mostinsulting-violent-language-is-often-reserved-immigrants/; Donald Trump’s 10 Most Offensive Tweets, Forbes, https://www.forbes.com/pictures/flji45elmm/donald-trumps-10-most-of/#45008b9570df.
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engaged in discrimination based on perceived viewpoint—all in clear contravention of the First Amendment. Defendants have also violated the statutory and regulatory firewall that exists to prohibit the very type of misguided political interference in which they engage.
13. Defendants’ misdeeds—which show no signs of abatement and have only worsened—have caused Plaintiffs and others unquestionable irreparable harm. Several of the Plaintiffs are the former leaders of USAGM whom Defendants have purged from their positions. And another Plaintiff is one of the most senior editorial members of Voice of America. Plaintiffs have collectively spent the majority of their professional careers helping to build USAGM and its networks into a credible media force with global audiences in the hundreds of millions. They are dedicated public servants of the utmost integrity whom Defendants have maligned without basis as incompetent and, even worse, potential spies. Defendants’ conduct threatens the credibility of Plaintiffs, the USAGM networks, their journalism, and all who are employed there, harming the networks’ ability to recruit and hire high-caliber journalists and to engage in uncensored journalistic and expressive activity. Defendants must be stopped.
14. If Voice of America and the other USAGM networks are to survive Defendants’ insidious stewardship, this Court must act. It must enforce the firewall in the way Congress wrote it and the agency’s own regulation construes it, providing that the firewall is “violated when any person within the Executive Branch or a Network, but outside the newsroom, attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence . . . the performance of [the USAGM networks’] journalistic and broadcasting duties.” 22 C.F.R. § 531.3(c). Federal law plainly provides that: “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network[s] make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by
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the highest standards of professional journalism.” Id. § 531.3(d) (emphasis added). This Court must enforce the firewall and must ensure the First Amendment rights of USAGM journalists and those who support them are preserved, protected, and defended.
JURISDICTION AND VENUE 15. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 16. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b)(2) and (e)(1). A substantial part of the events giving rise to this claim occurred in this District, and Defendants are officers of the United States sued in their official capacities.
PARTIES 17. Plaintiff Grant Turner has been a public servant for nearly two decades. An expert in federal budgeting and financial management, Turner has served the United States during both Democratic and Republican administrations in the Government Accountability Office, the Office of Management and Budget, the Centers for Disease Control and Prevention, and USAGM. Turner served as the Chief Financial Officer of USAGM between 2017 and 2019, when he was named interim CEO and Director of USAGM. When Defendant Pack was confirmed to his position as CEO, Turner reverted to his position as CFO of USAGM until August 12, 2020, when, after making protected disclosures relating to Defendants’ misconduct, he was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Turner remains an employee of USAGM, is vigorously contesting the charges levied against him relating to his security clearance, and fully expects to be restored to his position as CFO. 18. Plaintiff Marie Lennon has served the United States for nearly half a century, i.e., her entire professional life. After serving in various capacities in the Department of Defense and the Environmental Protection Agency, Lennon joined Voice of America in 1982, during the
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Reagan Administration. In 2003, she became Chief of Staff to Voice of America Director David Jackson. In 2015, Lennon became the Director of Management Services for USAGM’s predecessor organization, a title she continued to hold at USAGM. As the Director of Management Services, Lennon oversees human resources, contracts, security, civil rights, administration, and workforce support and development. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Lennon was placed on administrative leave purportedly on the ground that her security clearance had been improperly adjudicated. Lennon remains an employee of USAGM, is vigorously contesting the charges levied against her relating to her security clearance, and fully expects to be restored to her position as Director of Management Services at USAGM.
19. Plaintiff Shawn Powers was a tenured professor of comparative media law and policy prior to entering public service. Before joining USAGM, Powers served as the Executive Director of the U.S. Advisory Commission on Public Diplomacy, a body authorized by Congress to oversee and promote government activities designed to inform and influence foreign publics. In July 2018, Powers joined the Broadcasting Board of Governors (“Broadcasting Board”), serving as a Senior Advisor focused on strategic planning, innovation, research and evaluation, and policy coordination. In November 2019, Powers was promoted to serve as USAGM’s Chief Strategy Officer, leading the agency’s interagency engagement, strategic planning, strategic initiatives, and partnerships with key international stakeholders. In this capacity, Powers oversees the agency’s Office of Policy and Research, Office of Internet Freedom, and its Office of Policy. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Powers was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Powers remains an employee of
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USAGM, is vigorously contesting the charges levied against him relating to his security clearance, and fully expects to be restored to his position as Chief Strategy Officer.
20. Plaintiff Matthew Walsh has served the United States for more than a decade as a career civil servant. Walsh worked for almost nine years in the United States Department of State, under four different Secretaries of State, before joining USAGM as Chief of Staff to thenCEO and Director John Lansing in 2017. In February 2019, Walsh became the Deputy Director for Operations, responsible for overseeing the international operations of USAGM, managing most of its employees including executives such as the Director of Management Services, the Chief Information Officer, the Director of Technology, Services and Innovation, the Chief Risk Officer, and approximately 250 other staff members. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Walsh was placed on administrative leave purportedly on the ground that his security clearance had been improperly adjudicated. Walsh remains an employee of USAGM, is vigorously contesting the charges levied against him relating to his security clearance, and fully expects to be restored to his position as Deputy Director for Operations.
21. Plaintiff Hoang Oanh Tran has served the United States and worked at USAGM (and its predecessor agency) for nearly three decades. She joined the agency in 1992 as a Human Resources Specialist and joined the staff of the Broadcasting Board in 1999. Tran has been steadily promoted through the agency’s ranks, serving as Special Projects Officer, Director of Board Operations and Managing Director; since 2019, she has been the Executive Director of USAGM. Tran is responsible for personnel-related issues, including resource planning and performance management of the senior staff who report to the CEO. She facilitates and supports agency decision-making, policy, and communications from the CEO, including by facilitating
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the transition of USAGM’s prior Board of Governors leadership model to the current presidentially-appointed, Senate-confirmed CEO structure. On August 12, 2020, after making a number of protected disclosures relating to Defendants’ misconduct, Tran was placed on administrative leave purportedly on the ground that her security clearance had been improperly adjudicated. Tran remains an employee of USAGM, is vigorously contesting the charges levied against her relating to her security clearance, and fully expects to be restored to her position as Executive Director of USAGM.
22. Plaintiff Kelu Chao has served the United States and has proudly served Voice of America and USAGM (and its predecessor agency) with distinction for nearly four decades. After starting her Voice of America career as an intern, Chao has risen steadily through the ranks under both Republican and Democratic presidential administrations, including in stints as a studio announcer, field reporter, editor, Hong Kong Bureau Chief, Mandarin Service Chief, and East Asia Director. One of the most impactful experiences she had as a reporter was covering President George H.W. Bush’s visit to China, where she saw firsthand Voice of America’s impact on a Chinese audience looking for credible, objective coverage of this event. Chao served as Voice of America’s first Language Programming Director from 2001 to 2007, and led the Broadcasting Board of Governors’ Office of Performance Review from 2008 to 2014, overseeing the broadcast networks’ quality control program.
23. In 2014, Chao was named Voice of America’s Program Director, overseeing Voice of America’s production and distribution of television, radio, online, and mobile content. In this role, she provides direction and management support to Voice of America’s News Center and foreign-language services, which distribute Voice of America news in 47 languages. From June 2015 to April 2016, Chao served as Voice of America’s Acting Director, overseeing all of
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Voice of America’s operations, before returning to her prior position as Program Director. In both positions, Voice of America audience and impact reached new highs. Chao is passionate about the mission of USAGM’s broadcast networks, including Voice of America, of bringing credible, trusted, objective news to foreign audiences around the globe, and believes the firewall is of paramount importance in protecting journalists’ ability to carry out that mission. However, since Defendant Pack’s confirmation in June 2020, Chao has observed numerous firewall violations and is concerned about the suffocating effect Defendants’ efforts to influence the broadcasting networks’ coverage will have on their ability to cover the news credibly, objectively, and independently. Chao remains an employee of Voice of America and has joined this lawsuit to contest Defendants’ numerous and significant breaches of the firewall.
24. Defendant the United States Agency for Global Media is an independent agency that supports federally funded broadcast networks, including Voice of America, the Office of Cuba Broadcasting, Radio Free Asia, Radio Free Europe/Radio Liberty, and the Middle East Broadcasting Networks. USAGM networks broadcast in 62 languages and reach a cumulative weekly audience of 350 million people in more than 100 countries. They produce more than 3,000 hours of original programming each week. The agency’s annual budget is over $800 million for the current fiscal year.
25. Defendant Michael Pack is the CEO of USAGM. President Trump nominated Pack to serve as the USAGM CEO in 2018. Pack’s nomination languished in the Senate for two years, given bipartisan concerns about his competence, vision, and ethics, including questions raised by high-profile investigations into a non-profit organization he ran. Nonetheless, on June
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4, 2020, the Senate confirmed Pack in a 53-38 vote. As CEO, Pack has explained that his “job really is to drain the swamp and to deal with [] issues of bias.”5
26. Defendant Samuel E. Dewey is an attorney and political appointee at USAGM hired by Pack. Prior to joining USAGM earlier this year, Dewey worked as an attorney in the private sector and served as counsel in both Houses of Congress, where he conducted investigations for Republican members of Congress. Dewey is active on Twitter, regularly tweeting politically controversial, pro-Trump, and anti-press sentiments.6 To Plaintiffs’ knowledge, Dewey neither is nor has ever been a journalist or a news publisher.
27. Defendant Emily Newman is the Chief of Staff to the CEO of USAGM, and was hired into that role by Defendant Pack. Newman served as an advisor in the Department of Homeland Security in 2017 before transferring to the Department of Health and Human Services’ (“HHS”) Indian Health Service and later to a position in the White House as a liaison to HHS. Previously, Newman worked as counsel for the Chairman of the U.S. Senate Committee on Indian Affairs, Senator John Barrasso, MD (R-WY) and practiced law in the private sector. To Plaintiffs’ knowledge, Newman neither is nor has ever been a journalist or a news publisher.
28. Defendant Diane Cullo is Deputy Chief of Staff to the CEO of USAGM. Cullo was appointed by Defendant Pack, after having served as Pack’s White House-assigned “sherpa” during his lengthy nomination process. It has been publicly reported that Senate aides had the impression that during the nomination Cullo had no knowledge of either how USAGM operated
5 Alex Ward, Voice of America reporters: Trump-backed CEO “is failing” the US, Vox, (Aug. 31, 2020, 1:30 PM EDT), https://www.vox.com/2020/8/31/21408467/voice-of-america-letter-michael-pack-trump.
6 See, e.g., Samuel Dewey (@samueledewey), Twitter (Jul. 4, 2020) (retweeting “This is why the media is hated so much, and rightfully so.”).
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or its mission. Prior to her current position, Cullo was an advisor at the Department of Agriculture in the Office of Tribal Relations. To Plaintiffs’ knowledge, Cullo neither is nor has ever been a journalist or a news publisher.
29. Defendant Morvared Namdarkhan, professionally known as Mora Namdar, is an attorney, and the Acting Vice President for Legal, Compliance, and Risk Management at USAGM. Prior to joining USAGM, Namdarkhan worked in governmental affairs for Occidental Petroleum, and then served as a Special Assistant at the State Department for the Director of Policy Planning, focusing on policy at Voice of America. To Plaintiffs’ knowledge, Namdarkhan neither is nor has ever been a journalist or a news publisher.
30. Defendant Frank Wuco is an advisor to Pack at USAGM. Prior to joining USAGM, Wuco was a senior advisor in the Bureau of Arms Control, Verification and Compliance at the Department of State, and before that was a senior White House advisor to the United States Department of Homeland Security. To Plaintiffs’ knowledge, Wuco neither is nor has ever been a journalist or a news publisher.
FACTUAL ALLEGATIONS American Broadcasting Has Long Been Insulated From Political And Government
Interference To Ensure Its Integrity And Journalistic Independence. 31. Government-funded journalism, reporting, and broadcasting have been a central component of the United States’ efforts to combat disinformation and propaganda abroad since World War II. Initially, U.S. government-funded international broadcasting provided news to German audiences as a counterpoint to Nazi propaganda. From there, coverage expanded to Eastern Europe and the Soviet Union during the Cold War, and later to Cuba, Asia, and the Middle East. For the past eight decades, U.S. government-funded international broadcasting has served millions of people around the world, especially in countries where governments prohibit
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access to a free press and freedom of information. Today, some of American broadcasting’s biggest audiences are in Iran and China, where millions of people seek credible, impartial news uninfluenced by government agenda or politics. American government-funded broadcasting services have played key roles in foreign policy by providing truthful information about local and world events where such information would otherwise be suppressed or censored.7 The global public’s trust in the accuracy of reporting from these organizations is paramount to the success of their mission.
32. America’s government-funded journalism is housed under USAGM, an independent agency whose mission is “to inform, engage, and connect people around the world in support of freedom and democracy.”8 USAGM oversees multiple broadcasting networks including Voice of America, the Office of Cuba Broadcasting, and four USAGM-funded organizations generally called the “grantees”—the Open Technology Fund, Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks. The four grantees are private 501(c)(3) entities; their grant agreements are codified into law and the organizations are fully funded by government grants disbursed by USAGM.
7 As Chief Judge Howell explained recently, Notably, VOA Mandarin’s service has extensive reach. Its “audience has continued to grow, particularly for its YouTube programs, which have reached roughly 100 million viewers. During the past year, VOA Mandarin reported on numerous topics that are sensitive to the [People’s Republic of China (‘PRC’) ] government and generally banned, including Chinese dissident views, the mass detention of Uyghurs, political protests in Hong Kong, politics in Taiwan, and PRC ‘misinformation’ efforts. VOA also published articles in English and Chinese questioning China’s COVID-19 numbers and timeline of events. VOA Mandarin’s website received over 68 million visits from April 2019 to April 2020, including 4.5 million article views related to COVID-19 coverage.” 2020 CRS Report at 2.
Open Technology Fund v. Pack, __ F. Supp. 3d ___, 2020 WL 3605935, at *3 n.3 (D.D.C. July 2, 2020). 8 U.S. Agency for Global Media, Who We Are, https://www.usagm.gov/who-we-are/, (last visited Oct. 2, 2020).
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33. Voice of America was the first of America’s government-funded international broadcasters. The network transmitted its first radio program to Europe in 1942, less than two months after the U.S. first entered World War II. Its first broadcaster, writer and journalist, William Harlan Hale, inaugurated federally funded international broadcasting with the principle that has guided Voice of America—and Voice of America’s sister networks—throughout its history: “We bring you voices from America. Today, and daily from now on, we shall speak to you about America and the war. The news may be good for us. The news may be bad. But we shall tell you the truth.”
34. Voice of America was founded to provide consistent and reliable news coverage to combat Nazi disinformation campaigns. See Cong. Research Serv., RL. 435221, U.S. International Broadcasting: Background and Issues for Reform 1 (2016). In 1948, President Harry S Truman signed the Smith-Mundt Act, authorizing Voice of America’s post-war international broadcasting. In 1976, President Ford signed into law the Voice of America Charter, setting forth three principles governing Voice of America broadcasting. Pub. L. 94-350. The Charter provided that Voice of America would: (1) “serve as a consistently reliable and authoritative source of news. VOA news will be accurate, objective, and comprehensive”; (2) “will represent America, not any single segment of American society, and will therefore present a balanced and comprehensive projection of significant American thought and institutions”; and (3) “present the policies of the United States clearly and effectively, and will also present responsible discussions and opinion on these policies.” Id. The statute provided that Voice of America serves “[t]he long-range interests of the United States” and noted that “[t]o be effective, the Voice of America must win the attention and respect of listeners.” 22 U.S.C. § 6202(c) (emphasis added).
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35. The federal government began to financially support other networks in the ensuing decades. America launched Radio Free Europe and Radio Liberty in the early 1950s, which ultimately merged into one network in 1976. Radio Free Europe began broadcasting to Central and Eastern Europe, and Radio Liberty to the Soviet Union, during the Cold War. In 1973, Congress formalized its support of these broadcasting efforts, passing the International Broadcasting Act of 1973, which created the Board of International Broadcasting (“BIB”). The BIB was an independent government agency, led by a bipartisan board, which oversaw and funded Radio Free Europe and Radio Liberty from 1973 until 1994.
36. In 1983, American broadcasting expanded into Cuba with the enactment of the Radio Broadcasting to Cuba Act. That Act created a Cuba service within Voice of America. The Cuba service was moved to the Office of Cuba Broadcasting, an independent government agency. The Office of Cuba Broadcasting had originally been created to oversee the operations of the federally funded Radio and TV Martí. Radio and TV Martí—named after a renowned Cuban writer who fought Spain to gain Cuba’s independence—provide news and entertainment programs to Cuba in Spanish.
37. A decade later, Congress passed the International Broadcasting Act of 1994, (the “IBA”), Pub. L. 103-236, which repealed its 1973 predecessor and established the new Broadcasting Board, which later became USAGM. The IBA articulated American policy as promoting “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,’ in accordance with Article 19 of the Universal Declaration of Human Rights.” IBA § 302(1).
38. The IBA created the Broadcasting Board specifically to establish a firewall between the U.S. government and the government-funded broadcasting services that make
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journalistic and editorial decisions. The Broadcasting Board had nine bipartisan members who were statutorily required to enforce and protect the firewall that existed between the government and the journalists. See IBA § 305(c) (articulating the existence of a firewall between anyone involved with any aspect of journalism (e.g., the creation, editing, reporting, distributing, etc. of content) and everyone else in the government). The firewall followed the tenor of regulations BIB had promulgated in 1985, “ensur[ing] that broadcasters would operate ‘as independent broadcast media with professional independence.’” Open Technology Fund v. Pack, __ F. Supp. 3d ___, 2020 WL 3605935, at *2 (D.D.C. July 2, 2020) (quoting 22 C.F.R. § 1300.1(b) (1985)). As a Senate report explained, the statutory firewall was meant to “secure[] the professional independence and integrity of [the Agency’s] broadcasting services” and serve as an “‘asbestos firewall’ between the Executive branch and the daily operation of the radios.” S. Rep. 103-107 (1993); see also H.R. Conf. Rep. 105-432 (to accompany H.R. 1757) at 127, March 10, 1998 (“The news gathering and reporting functions of the broadcasters must continue to be independent and objective.”). Over and over again, Congress recognized that “[a]lthough VOA correspondents are on the federal payroll, they are unique in that they are working journalists. Accordingly, their independent decisions on when and where to cover the news should not be governed by other considerations.” H.R. Conference Report 107–671 (to accompany H.R. 1646), Sept 22, 2002 (emphasis added). To support and reinforce the journalistic integrity and independence of United States international broadcasting, Section 303 of the IBA promulgated specific standards and principles that would govern that broadcasting. Specifically, the act provided that the networks governed by the act must “conduct” themselves “in accordance with the highest professional standards of broadcast journalism.” IBA § 303(a); 22 U.S.C. § 6202(a)(5). The statute also adopted the language of the Voice of America charter and applied
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it to the other federally funded networks, providing that such broadcasting “shall include”: (1) “news which is consistently reliable and authoritative, accurate, objective, and comprehensive”; (2) “a balanced and comprehensive projection of United States thought and institutions, reflecting the diversity of United States culture and society”; and (3) “clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies.” 22 U.S.C. § 6202(b)(1)-(3); see also id. § 6202(c) (adopting nearidentical language specific to Voice of America).
39. In addition to codifying the firewall and establishing the core principles and standards of United States international broadcasting, the IBA also established Radio Free Asia. Radio Free Asia’s statutory mission is to “provide accurate and timely information, news, and commentary about events in the respective countries of Asia and elsewhere” and “to be a forum for a variety of opinions and voices from within Asian nations whose people do not fully enjoy freedom of speech.” See IBA § 309(b); 22 U.S.C. § 6208(b).
40. In 2017, the National Defense Authorization Act (“2017 NDAA”) reorganized the structure of American international broadcasting once more, providing that at its helm would be a presidentially appointed and Senate-confirmed Chief Executive Officer. The 2017 NDAA explicitly reaffirmed that the decades-old statutory firewall exists between the USAGM networks and applies to the CEO. Specifically, the statute provided that “[t]he Secretary of State and the Chief Executive Officer, in carrying out their functions, shall respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the board.” 22 U.S.C. § 6204(b); accord Open Technology Fund, 2020 WL 3605935, at *2. In his signing statement, President Obama made clear that the statute “‘retain[ed] the longstanding statutory firewall, protecting against interference with and maintaining the professional
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independence of the agency’s journalists and broadcasters and thus their credibility as sources of independent news and information.’” Open Technology Fund, 2020 WL 3605935, at *2 (quoting President Obama’s Statement on Signing the National Defense Authorization Act for Fiscal Year 2017, 2016 DAILY COMP. PRES. Doc. 863, at 3 (Dec. 23, 2016)).
41. On June 15, 2020, USAGM promulgated a regulation entitled Firewall and Highest Standards of Professional Journalism, also known as the Firewall Regulation. The Firewall Regulation was passed unanimously by the Broadcasting Board and took effect on June 11, 2020. See 85 Fed. Register 115,36151 (codified at 22 C.F.R. § 531). As articulated in the Federal Register, the regulation would “codify a common-sense definition of the firewall, consistent with the law, the highest standards of professional journalism, and longstanding practice.” Id. at 36150-51.
42. The Firewall Regulation makes clear that “USAGM networks necessarily enjoy full editorial independence in order to maintain their ‘professional independence and integrity,’ . . . insulating their editorial decisions from interference from those outside of the network, or from impermissible considerations, as set forth herein.” 22 C.F.R. § 531.1(b). The regulation also articulates that USAGM is permitted to “conduct[]” “oversight . . . in a manner consistent with that conducted by other media organizations which operate editorially independent news divisions that adhere to the highest standards of journalism.” Id. And it provides that the “networks each enjoy full editorial independence.” Id. § 531.2(a) (emphasis added).
43. The firewall “exists around USAGM-funded networks, their products, and staff in order to protect their professional independence and integrity.” 22 C.F.R. § 531.3(a). The firewall is like that applied “[w]ithin any credible news organization”—it separates “anybody
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involved in any aspect of journalism (e.g., the creation, editing, reporting, distributing, etc., of content) and everyone else in the organization.” Id. § 531.3(b). “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network[s] make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by the highest standards of professional journalism.” Id. § 531.3(d) (emphasis added).
44. The Firewall Regulation places strict limits on the interactions government officials—including those at USAGM—can have with members of the networks:
This “firewall” is understood to be violated when any person within the Executive Branch or a Network, but outside the newsroom, attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities. It is also violated when someone inside the newsroom acts in furtherance of or pursuant to such impermissible influence. Such impermissible influence would undermine the journalistic and editorial independence, and thus the credibility, of that USAGM network, and their reporters, editors, or other journalists. 22 C.F.R. § 531.3(c). President Trump Attacks the Agencies and Nominates Michael Pack, a Far-Right Documentarian With No Broadcast Journalism Leadership Experience, As USAGM CEO 45. In June 2018, the White House announced that President Trump intended to nominate Michael Pack as the CEO of USAGM. The backlash was immediate. Numerous media outlets expressed concern over the nomination. The Guardian wrote that “[i]f Pack does become head of the [the Agency], critics fear that he will turn Voice of America and the other
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[Agency] networks into a megaphone for Trump.”9 There was broad concern that Pack’s mission would be to subvert the credibility of the journalism thousands of people had spent decades building, and convert USAGM networks into “Trump TV” or another form of state-run propaganda.
46. Pack’s confirmation process quickly became bogged down. Numerous Senators—from both major political parties—had concerns that Pack’s experience as a documentary filmmaker would not provide the skill set necessary to lead an organization dedicated to broadcast journalism. USAGM is an agency with a current annual budget of over $800 million, overseeing more than 3,000 employees. On information and belief, Pack has never managed a budget or staff of that size.10
47. As Pack’s nomination languished, President Trump and the White House began pressuring the Senate to confirm Pack. In April 2020, the President called Voice of America “the Voice of the Soviet Union”11 and claimed that Voice of America was saying “disgusting [things] toward our country,”12 and was “parroting Chinese talking points during its coronavirus
9 Arwa Mahdawi, Michael Pack: the Bannon ally critics fear will become Trump's global propagandist, The Guardian (June 6, 2018), https://www.theguardian.com/media/2018/jun/06/michael-pack-steve-bannon-allybroadcasting-board-of-governors.
10 See Senate Committee on Foreign Relations, Testimony of Michael Pack, Sept. 19, 2019, https://www.foreign.senate.gov/imo/media/doc/091919_Pack_Testimony.pdf (describing past experience as running a “small business” “with 50 to 75 associates” at Manifold Productions, as well as running the Claremont Institute). The Claremont Institute currently has a staff of 28. Claremont Institute, Leadership, https://www.claremont.org/leadership/ (last visited Oct. 2, 2020).
11 Alex Ward, Trump and Steve Bannon want to turn a US-funded global media network into Breitbart 2.0, Vox, (June 18, 2020, 6:00 PM EDT) https://www.vox.com/2020/6/18/21295549/trump-bannon-pack-global-mediachina-wednesday-massacre.
12 Sarah Ellison, How Trump’s Obsessions with Media and Loyalty Coalesced in a Battle for Voice of America, Wash. Post (June 19, 2020, 4:52 PM EDT), https://www.washingtonpost.com/lifestyle/media/how-trumpsobsessions-with-media-and-loyalty-coalesced-in-a-battle-for-voice-of-america/2020/06/19/f57dcfe0-b1b1-11ea8758-bfd1d045525a_story.html.
(Cont’d on next page)
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coverage.”13 The White House later issued a statement that “VOA too often speaks for America’s adversaries—not its citizens . . . . Journalists should report the facts, but VOA has instead amplified Beijing’s propaganda.”14 The President accused Voice of America of “spend[ing America’s] money to promote foreign propaganda” “amid a pandemic.”15 He called the broadcaster a “DISGRACE” and accused it of peddling Chinese and Iranian “propaganda.”16
48. Pack was confirmed on June 4, 2020 and sworn in as CEO of the agency four days later. The President tweeted:
He specifically referenced a “big battle in Congress” that had been ongoing for 25 years. The IBA was signed into law approximately 25 years before Pack’s confirmation; that statute codified the statutory firewall as it exists today.
13 Ward, supra note 11. 14 David Folkenflik, White House Attacks Voice of America Over China Coronavirus Coverage, NPR, (Aug. 10,
2020, 6:14 PM ET), https://www.npr.org/2020/04/10/831988148/white-house-attacks-voice-of-america-overchina-coronavirus-coverage. 15 The White House, Amid a Pandemic, Voice of America Spends Your Money to Promote Foreign Propaganda, (Apr. 10, 2020), https://www.whitehouse.gov/articles/amid-a-pandemic-voice-of-america-spends-your-moneyto-promote-foreign-propaganda/. 16 Paul Farhi, With their visas in limbo, journalists at Voice of America worry that they’ll be thrown out of America, Wash. Post, (Aug. 2, 2020, 2:57 PM EDT), https://www.washingtonpost.com/lifestyle/media/withtheir-visas-in-limbo-journalists-at-voice-of-america-worry-that-theyll-be-thrown-out-ofamerica/2020/08/02/e9882c8a-d33f-11ea-8d32-1ebf4e9d8e0d_story.html.
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49. On or about June 17, 2020 Pack held his first meeting with the senior staff of
USAGM, including Plaintiffs Shawn Powers, Hoang Oanh Tran, Marie Lennon, Grant Turner
and Matthew Walsh. On information and belief, Pack had planned to fire these Plaintiffs at that
meeting. The night before, however, Representative Eliot Engel, Chairman of the House Foreign
Relations Committee, issued a public statement warning against this course of action:
I have learned that Michael Pack, the new CEO of the U.S. Agency for Global Media, intends to force out a number of the agency’s career senior leadership tomorrow morning. My fear is that USAGM’s role as an unbiased news organization is in jeopardy under his leadership. USAGM’s mission is ‘to inform, engage, and connect people around the world in support of freedom and democracy’—not to be a mouthpiece for the President in the run up to an election. . . . Mr. Pack should immediately reverse course and allow the nonpartisan public servants who run USAGM to keep doing their jobs. And Mr. Pack needs to understand that USAGM is not the Ministry of Information. The law requires that our international broadcasting be independent, unbiased, and targeted toward audiences around the world. USAGM broadcasters are credible only if audiences believe what they’re seeing and hearing is the straight, unvarnished truth. I will use every tool at the Foreign Affairs Committee’s disposal to make sure career employees are protected, the law is followed, and USAGM’s credibility remains intact.”17 On information and belief, prior to the meeting, Pack was informed that he lacked legal authority
to fire these Plaintiffs—career civil servants with unblemished employment histories—absent
valid rationales.
17 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Raises the Alarm on Impending Firing Spree at USAGM (Jun. 16, 2020), https://foreignaffairs.house.gov/2020/6/engel-raises-thealarm-on-impending-firing-spree-at-usagm.
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50. Pack’s planned purge of USAGM senior staff would thus have to wait. The meeting lasted approximately 10 minutes. Pack read from a script which thanked everyone for their service and then laid out his immediate plans.
51. Pack implemented an immediate freeze of many of USAGM’s core activities: (1) personnel actions (other than retirement); (2) contracting actions; and (3) technical migrations (IT projects). After the meeting, Pack’s Chief of Staff, Defendant Emily Newman, told the staff in an email that they were prohibited from communicating with external parties, severely hampering many of the USAGM Plaintiffs’ ability to do their jobs and keep the agency running. The freezes also precluded certain Plaintiffs from approving any administrative action and barred them from spending any funds, including previously approved expenditures. Each of these limitations prohibited the USAGM Plaintiffs from undertaking actions that were essential to the functioning of the agency.
52. Shortly after the meeting, Defendant Newman sent an email to all senior staff officially revoking all delegated authorities. This included, for example, the delegated authorities which allowed senior staff to spend funds, hire staff, and approve contracts.
53. These actions had immediate effect on USAGM and its thousands of employees. Basic tasks like ordering toilet paper and contracting for cleaning services—essential during a pandemic—languished. Numerous essential contracts lapsed. At least two of the agency’s news organizations—Radio Free Asia and Radio Free Europe/Radio Liberty—were brought to the brink of not being able to pay their employees. On information and belief, the goal of Defendant Pack’s actions was to strangle the news networks and remind them who was in control, thus ensuring that all the networks would take direction from USAGM without question in the future—i.e., to have a chilling effect on the networks’ freedoms of speech and press.
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54. On June 17, 2020, Pack unilaterally removed the Boards of each of the grantee networks and replaced them with largely unqualified members of the administration as well as an employee of Liberty Counsel Action, a conservative advocacy organization.18 Pack also removed the Presidents of each of the grantee networks, leaving their leadership teams weakened and diminishing their capacity to effectively manage themselves.
55. The organizational heads dismissed the night of Wednesday, June 17, 2020 included Bay Fang, then President of Radio Free Asia. Fang returned to her prior position as Executive Editor at Radio Free Asia—a journalistic position within the statutory and regulatory firewall. Although the head of Voice of America, former Director Amanda Bennett, had resigned prior to Pack’s purge of the network leaders, Voice of America was not spared. The same day, Pack directed that Voice of America’s Standards Editor, Steve Springer, be reassigned from that position.
56. Pack’s purge was quickly labeled the “Wednesday night massacre.” A bipartisan group of Senators condemned the purge immediately and pledged to review the agency’s funding as a consequence:
As the United States faces global challenges in the information space, it cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees’ independence so they can act as a bulwark against disinformation through credible journalism.19
18 See Open Technology Fund, 2020 WL 3605935, at *3–4. 19 Press Release, Sen. Marco Rubio, Rubio and Colleagues Send Letter to USAGM CEO Expressing Concern
Following Recent Termination of Employees (July 1, 2020), https://www.rubio.senate.gov/public/index.cfm/2020/7/rubio-and-colleagues-send-letter-to-usagm-ceoexpressing-concern-following-recent-termination-of-employees.
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Defendants Breach The Firewall Over And Over Again 57. In the ensuing weeks, Defendants started to aggressively change things at USAGM. Their goal was to fundamentally remake USAGM into state-sponsored media. To accomplish this, they needed to aggressively breach the statutory and regulatory firewall, cow the journalists into submission, and chill any expressive conduct that they deemed out of lockstep with the administration. 58. Sidelining The Guardians Of The Firewall. A wall is only as good as the guardians who protect it. Guardians of the USAGM firewall included agency stalwarts like David Kligerman, who wrote the very regulation that articulated the firewall’s requirements. Kligerman spent much of his career advising government officials about the firewall, what it required, and what it prohibited. He, along with Plaintiffs Turner, Lennon, Powers, Walsh, and Tran, were an essential bulwark against political interference with the agency’s journalistic mission: they ensured that the firewall between USAGM and the newsrooms of the agency’s news networks was maintained. Thus, Defendants have drummed up sham justifications to remove these USAGM employees—public servants who took the firewall seriously and who would have served as impediments to Pack’s unlawful mission to take control over the agency networks’ journalistic content. Other guardians of the firewall had been sidelined and purged by Defendants as well, including Steve Springer, the former Standards Editor of Voice of America, and Bay Fang, the former Executive Editor of Radio Free Asia. 59. One of the central means by which Defendants have been able to exert undue and unlawful political influence over Voice of America’s newsroom was by removing Steve Springer, Voice of America’s longtime Standards Editor, from his role and forbidding Voice of America from bringing him back in that role. The position of Standards Editor is a journalistic function ensuring the independence, integrity, and credibility of top-flight journalism. Standards
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Editors are essential to the functioning of a newsroom. They are the guardians of journalistic best practices and ethics—what they say in that regard goes. Their judgment and experience ensures that a news organization’s reporting remains at the highest quality of journalistic independence.
60. Steve Springer joined Voice of America after a storied career in journalism at CNN and other organizations. Springer served as the editor to whom all Voice of America journalists could go to for firewall and other journalistic best practices and ethics questions. Springer trained all new employees throughout USAGM and the networks on the obligations imposed by the firewall to ensure that everyone understood and respected it.
61. Springer was removed from his position on Pack’s first day in office, hours before the famed Wednesday night massacre. Springer was detailed to the role of a special assistant to Andre Mendes, CEO Pack’s Chief Operating Officer, but was given no duties whatsoever; he had literally nothing to do for nearly five months. Voice of America leadership, including Plaintiff Chao, communicated multiple times to USAGM officials that Voice of America wanted Springer to return and that his position was critical to Voice of America’s mission of pursuing the highest professional standards of journalism.
62. The removal of Steve Springer as the Standards Editor of Voice of America was done by or directed by Defendants in direct breach of the firewall. No CEO of any reputable private news organization would have interfered with the Standards Editor position—or any position in the newsroom—or removed a Standards Editor, let alone one as experienced, professional, and capable as Steve Springer. Cf. See Open Technology Fund, 2020 WL 3605935, at *11 n.19 (noting the “‘equivalen[cy]’ standard” that governs the minimal “direction and oversight” in which the CEO can engage). The sidelining of Steve Springer was meant to
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coerce, threaten, interfere with, or otherwise impermissibly influence Voice of America personnel in the performance of their journalistic and broadcasting duties and activities, and indeed has had those effects on the network and its journalists.
63. Springer’s removal has had an immediate and deleterious effect on Voice of America, its journalists, and its content. A senior editor writing to Voice of America leadership in mid-August 2020 perhaps put it best: “[T]hat we still have no agency-wide standards editor [for this] sustained period—but especially during peak US election time—is frankly journalistic malpractice.” The editor further explained, “[t]he standards editor during US election season plays an even more influential role, helping communicate the agency’s editorial practices so that all journalists can apply a consistent standard in all languages. Leaving this position empty damages our journalism. It’s as simple as that. The longer the position remains empty, the more likely we will make errors that undermine our credibility.”
64. Pack’s efforts to remove the firewall’s guardians did not stop with Springer. On August 12, 2020, Pack wrote to and placed Kligerman and Plaintiffs Powers, Tran, Lennon, Turner and Walsh, who collectively possess over a century of experience—including experience understanding and protecting the firewall—on administrative leave, under the pretext that the USAGM’s Office of Security lacked the proper authority to investigate background checks, an allegation that if true would apply to over 1,500 agency employees. In this written correspondence, Pack reminded them that despite being placed on leave, they were still required to comply with all USAGM laws, regulations, and policies, and faced disciplinary action if they violated these policies. These policies included the Broadcasting Administrative Manual, USAGM’s employee policy handbook, which provides on page 159 that USAGM employees are required to preserve, protect, and defend the firewall, a policy the Defendants have continued to
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repeatedly violate. The Plaintiffs placed on administrative leave are vigorously challenging these meritless charges in administrative proceedings. Because potentially every USAGM employee is subject to a similar charge relating to their security clearances, Defendants’ selective enforcement against these Plaintiffs is clear indication of Defendants’ desire to breach and interfere with the functioning of the statutory firewall by sidelining these Plaintiffs from their leadership roles at USAGM.
65. Terminating Radio Free Asia’s Executive Editor. Defendants have blatantly interfered with personnel decisions in violation of the firewall. Simply put, which reporters to hire, fire, where to place them, and other such decisions are day-to-day newsroom decisions with which the firewall prohibits USAGM from interfering. But Defendants have actively meddled in these processes, attempting to control these essential journalistic functions. The ultimate goal of this meddling is to limit and change journalistic coverage and to fundamentally remake the USAGM networks.
66. Following the improper removals of the USAGM Plaintiffs and Steve Springer, Defendants’ next improper personnel decision was terminating Bay Fang as Executive Editor of Radio Free Asia. At the time Pack assumed his position, Fang was serving as the President of Radio Free Asia, but when Pack took power he immediately terminated all the heads of the grantee networks, including Fang. Pursuant to the terms of her contract, Fang returned to serve in her prior role of Executive Editor. Subsequent to her demotion, during the week of June 22, USAGM staff—including Pack—had asked why Fang, even though terminated as President, was “still there.” A couple of weeks later, Pack demanded that the acting President of Radio Free Asia fire Fang, and he did so.
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67. An Executive Editor has a core journalistic function—she oversees editorial content of a publication, including by directing coverage decisions. The Executive Editor was a firewall-protected position, reporting to the President of Radio Free Asia and to no one else. Forcing Fang’s termination was a clear-cut violation of the firewall, just as demanding the termination of any journalist is a blatant violation of the firewall. No CEO of any reputable private news organization would have personally directed the firing of an Executive Editor, particularly not one so experienced, professional, and capable as Bay Fang. The termination of Fang was meant to coerce, threaten, interfere with, or otherwise impermissibly influence network personnel in the performance of their journalistic and broadcasting duties and activities.
68. Attempting to Reassign the New York Bureau Chief. Several months ago, Voice of America hired a new Bureau Chief for New York. A Bureau Chief is an essential journalistic function. Bureau Chiefs manage the bureau and are responsible for coverage decisions, management of bureau personnel and editorial oversight. Originally, when that job was listed, no New York Bureau employees applied for the position. Consequently, Voice of America hired a qualified member of its Russian service for the role.
69. Before that person could relocate for their new position, but after they had started in the job remotely, Defendant Cullo called Plaintiff Lennon and demanded a reassignment of the person who had been selected. Though the job had been advertised months ago, the position filled, and the individual actively doing the job without issue, Cullo demanded that the position be re-advertised and that Lennon work on reassigning the person who had been hired as Bureau Chief. Cullo asked Lennon to “give me some ideas” about where they could “park” the wouldbe Bureau Chief. Cullo did not provide Lennon with any legitimate reason for the reassignment. Her stated rationales were that Voice of America had not advertised the position, that Voice of
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America should have promoted someone from within the New York Bureau, and that she did not think they should pay relocation fees when there were qualified applicants already located in New York. Those rationales were false. First, the position had been advertised and filled prior to Cullo’s joining the agency. Second, no one within the New York Bureau had applied to be Chief. Third, the hired Bureau Chief had not sought relocation reimbursement.
70. Cullo’s interference with journalistic hiring was a blatant breach of the firewall. The decision plainly interfered with or at least attempted to interfere with Voice of America’s exercise of its journalistic duties. See 22 C.F.R. § 531.3(c). The originally hired New York Bureau Chief remains in his position only because senior managers at Voice of America and others refused to comply with Cullo’s orders in adherence to the firewall.
71. Constructive Discharge of Foreign Journalists. Many of Voice of America’s journalists are not American citizens. They are extremely experienced, high-ranking journalists in foreign countries that Voice of America expends significant effort and resources to recruit because those individuals are often the only people qualified to serve as journalists on one of the dozens of foreign language services Voice of America operates. Many of these foreign journalists take great personal risks in working for Voice of America. They often hail from countries where practicing independent journalism itself is risky and working for an American outlet even riskier. Particularly because of the need to have credible, professional journalists with language skills, several of Voice of America’s foreign journalists are the only journalists who are working for certain Voice of America language services. Without these foreign journalists, those journalistic outlets would have to close wholesale.
72. USAGM is not an immigration authority but rather, like any employer, can sponsor its employees for certain types of visas. One such visa is the J-1 visa, a non-immigrant
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cultural exchange visa. Applications for J-1 visas undergo an extensive vetting process by the State Department and the Department of Homeland Security. That visa can only be provided for aliens with actual positions—i.e., if a position ceases to exist or is defunded, the alien can no longer work or live in the United States. Although Voice of America always looks to hire American citizens, when qualified citizens are unavailable, Voice of America recruits the best foreign journalists through vigorous vetting and recruitment.
73. When Voice of America decides to hire a foreign journalist, it prepares the requisite sponsorship papers, and the CEO of USAGM engages in the ministerial act of signing those sponsorship papers. Neither of USAGM’s two prior CEOs—John Lansing and Plaintiff Turner—ever hesitated or refused to sign the requisite sponsorship papers. They knew that their failure to do so would be a gross breach of the firewall because it would constitute an interference with journalistic operations and personnel decisions. Even, for instance, the perception that the CEO was evaluating a visa applicant’s journalistic content and experience before signing sponsorship papers would result in a firewall breach by suggesting that the CEO was using the ministerial visa sponsorship process to interfere with journalistic content. No reputable news organization would let its business-side leadership control hiring of line reporters in this manner.
74. Since taking office, Pack has refused to adhere to this model: he has stated that he will personally review and decide whether to renew J-1 visa applications on a case-by-case basis. Pack has further refused to fund the contracts of multiple foreign journalists who already have J1 visas. Pack has articulated no standard that he will use to evaluate visa requests. Pack’s decision to arbitrarily subject J-1 visa holders to increased scrutiny is part of his larger objective to reduce the independence and effectiveness of Voice of America’s journalistic reporting by
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exerting greater control over foreign journalists. He is effectively controlling the hiring and firing of foreign journalists, in violation of the firewall, under the pretense of reviewing visa determinations.
75. Pack’s refusal to complete his ministerial function of signing J-1 sponsorship papers is having a crippling effect on the journalistic operations of Voice of America and on its long-term reputation. Multiple Voice of America foreign-language news services are struggling to produce the volume and quality of content both Congress and their audiences expect; numerous services are so understaffed that they have been forced to abandon 24/7 monitoring of the news, and have significantly reduced the amount of new content being produced and broadcast. These problems will only worsen if Pack does not change course. At least five journalists thus far have been forced to leave the U.S. because their visas expired in light of Defendant Pack’s refusal to sign the requested renewals.20
76. Voice of America’s mission to combat disinformation requires the work of these dedicated foreign-language trained journalists to make the news accessible for its global audience. And the effort Voice of America has made to demonstrate to foreign journalists it seeks to recruit—many of whom face great peril in choosing to work for an Americangovernment funded news organization—that it is a credible place to work for professional journalists (rather than a prop of the U.S. government) are being squandered. Highly skilled and sought-after journalists, who might ordinarily seek employment or be recruited by Voice of America, are unlikely to join Voice of America upon learning the truth about its disturbing pattern of promising journalistic employment, asking journalists to uproot their lives to come
20 Jessica Jerreat, Members of Congress Call on USAGM to Explain J-1 Visa Denials, Voice of America (Sept. 16, 2020), https://www.voanews.com/usa/members-congress-call-usagm-explain-j-1-visa-denials.
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here and help export American free media, and subsequently reneging on every promise made. A Chinese government editorial put it best: “Those who still have the illusion that the U.S. government will protect them if they sell out their country and work for the U.S. will only be repeatedly humiliated by (President Donald) Trump.”21
77. Pack’s refusals to sponsor or renew these J-1 visas or to fund foreign-language journalist positions that had already been filled exerts a chilling effect on all journalists who hold visas, because their ability to stay employed in the United States becomes inextricably intertwined with Pack’s standardless, arbitrary and capricious discretion. Pack’s statement that he would only renew J-1 visas on a case-by-case basis effectively tells these foreign journalists to tailor the content of their reporting in a manner that will keep Pack satisfied, lest he decline to renew their visa and send them back to their home countries. A group of House and Senate members wrote in a letter to Pack on September 14, 2020, by “fail[ing] to expeditiously extend these visas . . . [Pack is] potentially putting the lives of these journalists in danger by forcing them to return to countries where political leaders may target them for their work on behalf of an American media outlet[.]”22 “Failing to renew these visas constitutes more than callous treatment of a class of employees and contractors who have put their unique skills and insights to use in service of the USAGM’s mission.”23 Indeed, it is reckless disregard for the safety of journalists.
21 Jessica Jerreat, VOA Journalists Fly Home After USAGM Fails to Renew J-1 Visas, Voice of America (Aug. 25, 2020), https://www.voanews.com/usa/voa-journalists-fly-home-after-usagm-fails-renew-j-1-visas.
22 Letter from Sen. Robert Menendez, United States Senator, et al., to Michael Pack, Chief Executive Officer of USAGM (Sept. 14, 2020), https://www.foreign.senate.gov/imo/media/doc/09-1420%20Letter%20to%20Pack%20on%20Visa%20ExtensionsFINAL1.pdf.
23 Id.
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78. No leader of a reputable news organization in Pack’s position would exert authority in such a callous and indifferent manner. Indeed, no private-sector CEO would interfere in journalistic hiring and firing in the way Pack’s J-1 visa practices have, and particularly not when such an arbitrary practice clearly seeks to control the journalistic content produced and so cripples the very organization and reputation he runs. The refusal to exercise the ministerial, pro forma duty of signing J-1 visa sponsorship papers like any other private sector employer does is a blatant violation of the firewall and must be remedied.
79. Illegal Interference with Journalistic Content. At Defendant Pack’s direction and with his encouragement, USAGM lawyer Defendant Sam Dewey has undertaken a course of unlawful interference with a host of journalistic processes, particularly at Voice of America. USAGM is prohibited from taking action to “coerce, threaten, interfere with, or otherwise impermissibly influence . . . the performance of [] journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). Dewey’s actions are thus illegal.
80. Dewey has aggressively worked to insert himself into the newsroom, in direct violation of the firewall. Dewey has asked to participate in news coverage meetings regarding election reporting and raised concerns about the political content and perceived viewpoint of Voice of America stories. He has also ignored the journalistic chain of command—reaching far within the newsroom to speak directly with journalists, bypassing Voice of America’s Director and even its senior journalistic leaders to raise concerns about content and seek action from lower-level journalistic employees. No credible news organization would ever permit a manager outside the firewall to attend such meetings or voice such concerns to journalists within the firewall. Merely requesting to attend news coverage meetings sends a striking message that USAGM is watching and that coverage must toe the party line. That Dewey is a sophisticated
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attorney capable of parsing statutes and regulations suggests that his breaches of the firewall were knowing and intentionally designed to intimidate and influence coverage of the election.
81. Interference through Threats, Coercion, and Investigations. At the direction of Defendant Pack, Defendant Sam Dewey and other USAGM officials, have and are continuing to investigate and scrutinize journalistic activity in an unlawful attempt to “coerce, threaten . . . [and] impermissibly influence . . . the performance of [] journalistic and broadcasting duties[.]” 22 C.F.R. § 531.3(c). Whether a story should be published, was improperly published, or should be taken down is a day-to-day journalistic decision. Where lapses of journalistic practices occur, journalistic practice and USAGM policy dictates that the investigation of any alleged issues be undertaken by other journalists at the networks—not by politically motivated actors on the other side of the firewall.
82. In fact, throughout USAGM’s recent history, Voice of America leadership itself has been the one to investigate apparent issues with journalistic best practices within Voice of America. In cases where the lapse is potentially significant, Voice of America leadership has brought in outside auditors, including professors of journalistic ethics, to opine on the nature of the alleged error and any potential penalty. For example, in 2017 concerns were raised within the Voice of America about the way the Mandarin Service handled a live broadcast of an interview with a Chinese exile. Both an outside law firm as well as an expert in broadcast journalism were retained to conduct an investigation—this structure was purposely designed to avoid any appearance of political partiality.
83. To the contrary, Defendants have launched a series of USAGM-led investigations into alleged journalistic lapses within the news networks on the other side of the firewall. In recent weeks, two incidents occurred in two of Voice of America’s language services—its Urdu
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service and one of its Spanish services, VOA Noticias. The contrast between how USAGM handled each potential lapse in journalistic standards is instructive on USAGM’s political motives and its own conflicts of interest.
84. Specifically, VOA Noticias posted a video from a Trump campaign official advising Latinos to vote against Joe Biden. The story provided no context or response from the Biden campaign—it was effectively raw campaign footage. Once Voice of America leadership became aware of the story—which did not meet the Voice of America requirements for balance and objectivity under its charter, see 22 U.S.C. § 6202(c)(2)—it removed it from VOA Noticias’s Twitter feed and investigated the incident. USAGM, while aware of the incident, did not take any action with respect to this apparent journalistic lapse.
85. But when a video appeared on Voice of America’s Urdu service relating to Democratic presidential nominee Joe Biden, USAGM itself conducted a detailed journalistic standards investigation within Voice of America, in clear violation of the firewall. That video featured clips of Biden speaking at an event organized by an American-Muslim nonprofit organization; it included a two-minute clip of Biden speaking and provided no context or response from the Trump campaign.
86. Shortly after learning about the Biden video, Voice of America leadership started to investigate but was immediately rebuffed by USAGM and Defendants—in stark contrast to how the VOA Noticias incident was handled. Voice of America leadership was advised by USAGM leadership that only Defendant Dewey—a political appointee at USAGM—would be conducting the investigation into whether the Urdu service journalists abided by journalistic standards. Defendant Pack himself personally assigned Dewey to conduct this investigation,
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bypassing journalistic leadership. In conducting the investigation, Dewey interviewed the reporters about an editorial decision in the newsroom—a blatant violation of the firewall.
87. Defendants Dewey, Cullo, and Newman participated in this investigation. On July 28, 2020, for instance, Defendants Newman and Cullo asked the Voice of America Acting Director for lists of “all people” involved “directly or indirectly, or who should have been involved” in producing and airing the Biden video. She further requested that Voice of America send her all of their contracts. Defendant Dewey inquired further on July 29, 2020, seeking additional documents, access to any “materials gathered as part of [Voice of America’s] review” into the video, and for an assessment of what employees at Voice of America “should have been involved in the process”—an assessment that he believed “can be resolved independent of any analysis of the actual situation at hand.” Mr. Dewey sought information relating to the journalistic “policy and procedure” relating to the Biden video.
88. Once Defendant Dewey’s investigation concluded, the punishment was swift: the Urdu service’s digital managing editor was placed on administrative leave, and four contractors who had worked on the Joe Biden video were terminated. This punishment was historically unprecedented and wholly disproportionate to the journalistic “crime.” The message sent to Voice of America’s journalists was clear: the USAGM CEO—not Voice of America—would play judge and jury to those whose reporting is considered unfavorable to the President and the punishments will be severe. To Plaintiffs’ knowledge, no similar USAGM investigation or discipline has occurred relating to the VOA Noticias video that advised Latinos to vote in favor of President Trump. The clear inference journalists can draw: journalists are safe where they favor the administration but not where they don’t. That is textbook political interference with journalistic coverage.
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89. The message Pack and Dewey sent—we are watching, and any failure to toe the party line will be dealt with swiftly—was heard loud and clear. Days after the investigation, a Voice of America Urdu service journalist—presumably worried about his job after observing the actions Defendants Pack and Dewey took with regard to his colleagues—removed certain videos from the service’s website. Removed videos included coverage of the protests that followed the killing of George Floyd. These videos covered important events of public and even historical significance; they were not only appropriate incidents to cover but even essential news. But because the journalist feared Defendants might view these stories through a particular lens and subject those associated with the stories to punishment, this journalist removed these stories from the Urdu service’s website. On information and belief, these videos have been permanently deleted.
90. Defendant Dewey got wind of the removals and immediately sprung to action. Bypassing the normal journalistic chain of command, he wrote directly to the chief of the Urdu service asking him for more information about the now-deleted videos. Specifically, he stated “Please identify content put out during same time period as these videos that presents the other side of these issues, namely that regardless of the merit of the BLM or other causes, mass rioting is not acceptable. For example, are there videos that contain some of the statements by Attorney General Barr on these issues or stories about those who lived in underserved communities and had their property damaged?” Dewey’s note further stated: “Please immediately instruct the entire service that they are ordered and directed by the office of the CEO to search for and preserve any copies of the stories removed.” These directives illustrate unabashed breaches of the firewall and blatant attempts to exert control over the Voice of America’s content. The
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message was loud and clear: with every George Floyd protest story, there should be content that favors Dewey’s perspective, as illustrated in his Twitter feed:
Dewey’s pressure, coercion, intimidation, and interference flies in the face of the firewall. 91. Dewey’s investigative onslaught has continued. In recent weeks, Dewey asked
Voice of America leadership to report to him which Voice of America journalists were working on every story being developed at the network—something he called a chain of custody. As a member of USAGM CEO’s team, and pursuant to the firewall, Dewey has no place knowing what stories are being prepared by the network for publication, let alone who is working on those stories. Dewey’s message again was clear: we are here, we are watching, and the failure to conform will be addressed forcefully. Attempting to ascertain which journalists are responsible for what stories exerts a chilling effect on journalists—it tells journalists not only that the CEO is monitoring what content they produce but also what the CEO wants them to take a particular journalistic approach towards. The firewall expressly disallows this very type of coercion, interference, and pressure from occurring.
92. Investigations into Profiles of Jill Biden and Melania Trump. Improper journalistic investigations have proliferated beyond Defendant Dewey as well. In fact, Defendant Dewey, as well as other USAGM employees working at his behest, have undertaken a
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large-scale investigation of the production and editorial process of two specific Voice of America pieces: two audiovisual profiles of former Second Lady Dr. Jill Biden and First Lady Melania Trump. USAGM’s purported investigation into these two pieces involved interviews of many journalists and/or editors in Voice of America’s newsroom and language services.
93. The audiovisual profiles of Mrs. Trump and Dr. Biden went live on the Voice of America website on July 29, 2020.24 The profiles provide details about the First and formerSecond Ladies’ personal histories and involvement in various causes, showing clips of them speaking at public events including political rallies on behalf of their husbands. In both profiles, a voiceover describes how each woman met her husband, had children with them, and took up public causes like child welfare (Mrs. Trump) and education (Dr. Biden). The pieces are similar in tone and duration, each video piece spanning just over three minutes composed of spliced footage of the subjects, their husbands, and other third-party commentators. The tone is matterof-fact, and the coverage provides factual backgrounds on both women.
94. The pieces are accompanied by the following captions. Melania Trump, the first lady of the United States, was a model before she married businessman Donald Trump 15 years ago. A Slovenian immigrant, the first lady shies away from the public eye except for occasional appearances on behalf of her causes, which focus on children. VOA’s Carolyn Presutti shares with us things you might not know about the president’s wife.
24 Carolyn Presutti, America’s First Lady - From Immigrant Model to The White House, Voice of America (July 29, 2020, 6:40 AM), https://www.voanews.com/episode/americas-first-lady-immigrant-model-white-house4370301; Carolyn Presutti, Former Second Lady Vying to Be America’s First Lady, Voice of America (July 29, 2020, 6:39 AM), https://www.voanews.com/episode/former-second-lady-vying-be-americas-first-lady-4370306. Plaintiffs incorporate these stories by reference.
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Jill Biden, the wife of presumptive Democratic presidential nominee Joe Biden, is on leave from her teaching job to assist with her husband’s campaign. Mrs. Biden is very familiar with life in Washington, since her husband spent 36 years in the U.S. Senate and eight years as vice president under Barack Obama. VOA’s Carolyn Presutti brings us more interesting facts about Jill Biden in this profile.
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The captions, like the pieces themselves, provide similar information about the two women, and are structured as near-mirror images.
95. Multiple Voice of America reporters and editors were contacted by members of the USAGM Human Resources department about an administrative investigation regarding the profiles of Mrs. Trump and Dr. Biden published by Voice of America. These reporters and editors were questioned by USAGM officials about their involvement with the pieces and particularly about who wrote particular words about the President, characterizing him as having “disparaged immigrants” and “attack[ed] perceived adversaries on Twitter.”
96. The very existence of this investigation was a blatant violation of the statutory and regulatory firewall—an attack on journalistic independence and integrity designed to chill journalists into conforming to a prescribed party line. Questioning journalists and editors about the Voice of America editorial process, the balance of the Biden/Trump pieces, or the ethical
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standards Voice of America employ in publishing its pieces about Mrs. Trump and Dr. Biden are clear violations of the statutory firewall, and of these journalists’ and editors’ rights under the First Amendment. The First Amendment and federal statute and regulation do not permit government officials to interrogate journalists about the process and editorial judgments of their stories. These investigations are having and will have a chilling effect on news coverage. They must be stopped.
97. The investigation was also plainly content- and perceived viewpoint-based. Reporters and editors have been repeatedly questioned about who wrote particular words about the President, characterizing him as having “disparaged immigrants” and “attacks perceived adversaries on Twitter”—facts, regardless of whom at Voice of America wrote them, that are objectively true.25 The investigation, undertaken by, and at the direction of, political appointees, took place because the piece involved politics, and because the words in question were perceived to be unfavorable to the President. USAGM’s attempt to root out the writer and editor responsible for these words is a reprehensible attempt to retaliate against reporters engaging in expressive content and to penalize them for taking what they perceive to be an anti-Trump viewpoint, despite the clear balance of the profile. Voice of America’s pieces and journalists are balanced. The journalists have integrity. And they do uphold the highest standards of professional journalism. Those questioned in this investigation are all seasoned journalists. That Defendants seek to punish speech and journalistic activity says far more about them than the veteran journalists at Voice of America attempting to do their vital job.
25 See, e.g., @realdonaldtrump, Twitter (Nov. 3, 2019, 7:48 PM) (“[Adam Schiff] is a proven liar, leaker & freak who is really the one who should be impeached!”), https://twitter.com/realDonaldTrump/status/1191155326743195648; @realdonaldtrump, Twitter (Feb. 11, 2017, 7:12 AM) (“Our legal system is broken! ‘77% of refugees allowed into U.S. since travel reprieve hail from seven suspect countries.’ (WT) SO DANGEROUS!”), https://twitter.com/realDonaldTrump/status/830389130311921667.
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98. USAGM has procedures for editorial lapses, but none of them were followed in any of these investigations. Specifically, the procedures set four tiers of investigation for USAGM entities. First, for minor corrections, the network handles the entire investigation internally. Second, if there is a problem with a single story or series, network leadership again handles the investigation, but keeps USAGM apprised of progress and results. Third, if there is an individual journalist with a pattern of lapses, the network again responds to the issue and is asked to coordinate with USAGM as well as external journalism experts. Fourth, if there is a widespread and longstanding pattern of ethics violations, USAGM investigates not any individual incident or journalist but rather reviews a random sample of programming and consults with the network to assist with the review of such a big-picture review.
99. In none of these tiers is USAGM empowered to embark on an investigation into specific editorial concerns or empowered to impose punishment. And critically, the policy prohibits USAGM from acting unilaterally without the consultation of the network in question— let alone where the network opposes such action. These procedures exist for good reason. As a former Director of Voice of America explained to the House Foreign Affairs Committee: “[I]t’s different when [an investigation] is done by a journalist who has no actual association with either side of the argument, than when it is done by people who have some kind of connection with that.”26 Defendants have deliberately deviated from these procedures, investigating journalism in a clear attempt to coerce, influence, curb, and chill speech.
100. No reputable news organization allows members of its organization who are outside of the firewall to investigate alleged journalistic errors or penalize those errors. These
26 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Amanda Bennett).
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investigations and punishments are having a serious and immediate effect. In fact, as a senior newsroom manager wrote to Voice of America’s leadership, “We 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.” Defendants’ actions breach the firewall and
invite improper interference, coercion, and pressure on reporting. 22 C.F.R. § 531.3(c). 101. Commandeering Voice of America’s Website. At Pack’s direction, on June 24,
2020, USAGM issued a press release explaining that Voice of America would now be linking to
editorials on its homepage. These editorials are written by the U.S. government and represent its views. This change had never been discussed with Voice of America’s leadership, nor were they given any advance notice about it.27 Making this change, without consulting Voice of America’s leadership, in an attempt to influence the appearance of Voice of America’s content to its
audience, is an attempt to impermissibly influence content in violation of the firewall. See 22 C.F.R. § 531.3(c). Directing that a link to Voice of America’s editorials be displayed on the Voice of America webpage reflects an effort to exert influence over Voice of America’s content, and to disguise U.S. government views as Voice of America news. Voice of America’s web presentation is a journalistic decision, and Pack’s involvement in making this change, and USAGM’s requiring of it, is a clear breach of the firewall.28
27 The IBA requires United States broadcasting to “include . . . clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies, including editorials, broadcast by the Voice of America, which present the views of the United States Government.” 22 U.S.C. § 6202(b)(3). The statute does not, however, require any USAGM network to publish content written by the government, nor does it give any government official the authority to dictate how opinion pieces are presented and where.
28 Defendants’ actions with respect to the editorials has already caused substantial confusion in the public as to whose views those editorials represent, thereby jeopardizing Voice of America’s credibility as an independent media organization. See Zack Budryk, Biden Would Fire Trump Appointee Leading US Media Agency For “Hijacking” Outlet, The Hill (June 25, 2020), https://thehill.com/homenews/administration/504534-bidenwould-fire-trump-appointee-leading-us-media-agency-for (noting that Mr. Pack “has also announced that Voice of America’s editorials will be more closely aligned with President Trump’s views”); Alex Ward, The Head of
(Cont’d on next page)
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Voice of America Website at 8:11 pm on August 27, 2020
102. New “Conflict of Interest” Policy and Pretextual Investigation of White House Bureau Chief in Retaliation for Reporting Firewall Violations to Management. On August 31, 2020, a coalition of Voice of America’s journalists sent a letter to USAGM leadership. In that
US Broadcasting Is Leaning Toward Pro-Trump Propaganda. Biden Would Fire Him., Vox (June 25, 2020), https://www.vox.com/2020/6/25/21302625/joe-biden-president-voice-america-fire-michael-pack (noting the “concern . . . about Pack’s vision for Voice of America’s editorials”); Arthur Bloom, Michael Pack Is Right To Rein In State-Funded Broadcasters, The American Conservative (June 23, 2020), https://www.theamericanconservative.com/articles/michael-pack-is-right-to-rein-in-state-funded-broadcasters/ (“VOA’s editorials are cleared by the State Department”).
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letter, the journalists felt “compelled to express [their] profound disappointment with the actions and comments of the chief executive officer of the U.S. Agency for Global Media, 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.”29 By “Pack recklessly expressing that being a journalist is ‘a great cover for a spy,’” the letter said, lives may be in “jeopardy.” They compared Pack’s actions to those taken during the “Red Scare” led by former Senator Joseph McCarthy in the 1950s.
103. In their letter, the Voice of America journalists—including two editors, two foreign correspondents, the White House Bureau Chief, the White House senior correspondent, and the national affairs correspondent—stated that they “watched in dismay as USAGM executives ha[d] been dismissed for . . . attempting to educate [Pack] on avoiding legal violations, as well as guiding him on the firewall that protects VOA’s legally mandated editorial independence.” They expressed that “Pack’s actions risk crippling [Voice of America] programs,” believing that “competent and professional overnight” were necessary to protect “not only the news organizations of USAGM (one of the world’s largest broadcasting entities) and our audiences, but also our stakeholders, including the American public.”30 Although the letter was meant to be a private, internal communication, it was ultimately leaked to the press and was reported on by NPR and other news outlets. Since the letter was published, multiple Voice of America journalists have added their names to it.
29 Letter from Aline Barros et al., Journalists, Voice of America, to Elez Biberaj, Acting Director, Voice of America (Aug. 31, 2020), https://assets.documentcloud.org/documents/7048656/LettertoVOAdirector.pdf.
30 Id.
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104. USAGM did not respond to the journalists’ criticism favorably, answering the letter in a series of Tweets posted on @USAGMPox on September 1. The ominously threatening Tweets stated:
The course of action undertaken by various U.S. federal employees of the Voice of America (VOA), when they submitted an untitled letter dated August 31, 2020 to their Acting Director and the press, was improper and failed to follow procedure. All federal employees of the U.S. Agency for Global Media (USAGM), its broadcast agencies, and grantees are well aware that the U.S. Government provides numerous avenues of recourse to federal employees with genuine complaints. The untitled letter followed none of the prescribed protocols found in standing U.S. Government personnel directives, including those that direct USAGM and VOA federal employees, specifically. Thus, a direct response to this unconventional and unauthorized approach would be inappropriate and unwarranted. USAGM and VOA leadership are handling the choice of complaint transmission as an administrative issue.31 The ominous tweets foreshadowed what was to come. 105. On Sunday, October 4, 2020, Pack sent a policy memo to all staff of Voice of America, the Office of Cuba Broadcasting, Radio Free Europe/Radio Liberty, Radio Free Asia, and the Middle East Broadcasting Networks, with the subject “Guidance on Conflicts of Interest.” Sending such a memorandum on a Sunday is completely out of the ordinary—and, notably, the memorandum was backdated to October 2, 2020. In the memo, Pack claimed to “clarify policies and provide guidance on” the “[m]anagement of conflicts of interest” which is “a key component of maintaining fairness, objectivity and balance.” Pack did not merely clarify policies, but also pronounced new ones, broadening conflicts of interest to include “reporting on
31 USAGM (@USAGMspox), Twitter (Sept. 1, 2020), https://twitter.com/USAGMspox/status/1300805832427401216.
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an issue: (1) in which they have a personal interest or (2) have publicly personally expressed a
political opinion.”
106. Pack provides three examples of conduct which paint a distressing picture of what
will give rise to conflicts of interest demanding recusal under this new policy. First:
If a Voice of America (“VOA”) journalist is personally affected by a potential governmental action, then they may not cover that issue. For example, a journalist who is working in the United States on a J-1 visa must follow normal procedures and recuse themselves from any story involving J-1 visas. Second, a journalist who:
[P]ublicly takes a personal position on an active political issue has a conflict of interest—doubly so if that issue directly affects that individual. For example, a journalist who, in their private capacity, publicly criticizes the U.S. Department of Justice’s leadership for, among other things, implementing the policies and protecting the prerogatives of the Administration must recuse themselves from reporting on the Department and the part of the administration implicated by the criticism. Third, a journalist who:
[E]xpresses personal views on political topics in their personal social media creates the potential for a conflict of interest . . . [f]or example, a journalist who on Facebook ‘likes’ a comment or political cartoon that aggressively attacks or disparages the President must recuse themselves from covering the President. 107. These purported policies are plainly overbroad and vague, and confer
unconstitutionally unfettered discretion on USAGM to suppress speech at will. As to
overbreadth, every journalist is arguably “affected” by government policy on COVID-19, yet it
cannot possibly be consistent with the highest standards of professional journalism that no
journalist at Voice of America can cover any story about the pandemic. As to vagueness and
unfettered discretion, the policy sets as its prototypical conflict of interest anyone who
“aggressively attacks or disparages the President must recuse themselves from covering the
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President.” That vague standard makes clear USAGM’s perspective that criticism of the administration should be suppressed but fails to articulate what makes “attacks” or “disparagement” sufficiently “aggressive” to justify suppressing speech. For that reason, too, the policy confers unfettered discretion to suppress speech—providing Defendants with the opportunity to institute the very type of post hoc justifications for suppressing speech that the Supreme Court has long disallowed.
108. USAGM’s decision to impose this policy violates the First Amendment and breaches the firewall. This conflict of interest policy—on information and belief drafted by those who have little or no experience in journalistic ethics—is a mechanism of controlling and influencing journalistic content, signaling that “attacks” on (i.e., critical coverage of) the President are plainly out-of-bounds. The new “policy” also not only seeks to control journalists but their supervisors as well. The policy memorandum asserted that “[t]he obligation to recuse or mitigate conflicts of interest rests with both the individual journalist and their supervisor. If a journalist fails to recuse themselves, it is the obligation of the supervisor to order recusal.” Promulgating this conflict of interest policy reflects a flagrant attempt to control journalists, their supervisors, and the journalistic content they produce. Promulgating this policy is beyond USAGM’s authority. See 22 C.F.R. § 531.3(c).
109. The vague, overbroad conflict policy also portended yet another firewall breach. Just hours after Pack sent his memo, NPR broke the news that USAGM had been investigating Voice of America’s White House Bureau Chief, Steve Herman for purported bias and conflicts of interest.32 Herman, a veteran journalist and longtime Voice of America correspondent, led and
32 David Folkenflik, Political Aides Investigate VOA White House Reporter For Anti-Trump Bias, NPR (Oct. 4, 2020), https://www.npr.org/2020/10/04/919266194/political-aides-investigate-voa-white-house-reporter-foranti-trump-bias.
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organized the journalists who wrote the August 31 letter. As NPR described, Defendants Dewey and Wuco – at Pack’s apparent direction – launched a retaliatory investigation into Herman and his storied work as a journalist. Dewey and Wuco have placed Herman’s reporting under a magnifying glass since the letter, and have been watching Herman’s private social media activity for any hint of bias.
110. As part of this retaliatory investigation, Pack and his team prepared a 30-page dossier of materials to build an erroneous case that Herman violated Voice of America’s Best Practices Guide or Social-Media Policies. Defendant Wuco has transmitted a copy of this dossier to Voice of America’s Acting Director, Elez Biberaj, asking Biberaj to do something about Herman, in a clear effort to pressure the Acting Director to take action against Herman. Within that dossier are multiple allegations that Herman’s stories were a “conflict of interest.” In particular, Pack and his team explicitly determined that Herman’s September 8, 2020 story, Trump Defies North Carolina COVID Guidelines With Large Outdoor Rally,33 and his September 10, 2020 story, I Didn't Lie,' Trump Asserts About Seriousness of Coronavirus,34 were conflicts of interest by USAGM. Neither story appears biased on its face. And as NPR explained, “Both stories closely resembled accounts from other news outlets on the events.”35
111. Should Biberaj ultimately be forced to give in to Pack’s pressure and take action against Herman—i.e., forcing him to recuse or worse—that would both disrupt and chill journalistic coverage by removing Voice of America’s White House bureau chief from action
33 Steve Herman, Trump Defies North Carolina COVID Guidelines With Large Outdoor Rally, Voice of America (Sept. 8, 2020), https://www.voanews.com/2020-usa-votes/trump-defies-north-carolina-covid-guidelines-largeoutdoor-rally.
34 Steve Herman, I Didn't Lie,' Trump Asserts About Seriousness of Coronavirus, Voice of America (Sept. 10, 2020), https://www.voanews.com/2020-usa-votes/i-didnt-lie-trump-asserts-about-seriousness-coronavirus.
35 Id.
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mere weeks away from a presidential election and in the midst of a public health crisis. Even if Herman is permitted to retain his position, Defendants’ policy, and their unlawful investigation of Herman and the resulting pressure on Biberaj, are plain attempts to intimidate Herman and undermine his coverage of the Administration in violation of the First Amendment and the firewall.
112. In sum, Defendants’ actions here present three-fold violations of the firewall. First, the retaliatory and plainly pretextual investigation into Steve Herman violates the firewall. USAGM had no basis to reach out and investigate Herman’s journalistic practices. As Representative Michael McCaul, the Ranking Member of the House Foreign Affairs Committee, explained, if the allegations regarding the Herman investigation are “true, this is very troubling and potentially illegal.”36 Second, Defendants’ attempts to pressure Biberaj to take action against Herman for allegedly violating journalistic standards clearly violates the firewall. Third, Defendants’ promulgation of a policy about journalistic ethics, both on its own and as part of the effort to intimidate both Herman and Voice of America leadership, violates the firewall. Defendants again have “attempt[ed] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). That simply is not allowed. Defendants Engage In A Pattern Of Arbitrary And Insidious Gross Mismanagement, In Violation Of The Firewall And The CEO’s Fiduciary Duties And Take Care Obligations
113. Since Defendants took power in June, they have engaged in a pattern of gross mismanagement—making arbitrary and insidious decisions designed to choke the USAGM
36 Jessica Jerreat, USAGM Officials Breached Firewall, Committee Chair Says, VOA (Oct. 6, 2020), https://www.voanews.com/usa/usagm-officials-breached-firewall-committee-chair-says.
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networks, send a message about their ability to control the networks, and—ultimately—to coerce, intimidate, threaten, and pressure these organizations into agreeing to Defendants’ journalistic control. Since taking power, Defendants have frozen contracts and budgets. They have imposed hiring freezes that have lasted months longer than ordinary-course freezes imposed during leadership transitions. And they have frozen all technical migrations. Even routine contracts that permit the networks to run their day-to-day operations, such as contracts for toilet paper or cleaning (in the middle of a pandemic) have been frozen. Other routine contracts, such as agreements with distributors to carry Voice of America content, are likewise frozen. The failure to maintain these contracts will result in fewer broadcasters carrying Voice of America stories, fewer individuals being able to access these materials, and an inability to track even the most basic digital metrics for assessing performance.
114. Defendants have also moved money unlawfully—a failure exposing the agency to violations of the Antideficiency Act, 96 Stat. 877, which prohibits federal agencies from making obligations or expenditures in a manner inconsistent with congressional appropriations. Federal employees who violate the Antideficiency Act may be subject to administrative and penal sanctions. Defendants opened up themselves and the agency to such sanctions, by failing to disburse funds that have been allocated through valid appropriations bills that were then signed into law by President Trump—a failure that also exposes the agency to violations of the Congressional Budget and Impoundment Control Act of 1974. The failure to fund grantees is a breach of Defendants’ fiduciary duty and take care obligations and creates a significant legal risk for USAGM. USAGM is the overwhelming source of funding to the grantees, if not their entire source of funding. Yet numerous funds needed to operate the grantees have not been disbursed and no reason has been given for withholding them. Defendants have also moved funds
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internally without appropriate and legally required authorization.37 Specifically, Defendants moved approximately $3.5 million of Internet Freedom funds from USAGM’s grantee organizations, back to USAGM’s corporate accounts, without notifying appropriators or getting the funds reapportioned by the Office of Management and Budget. Defendants have also moved $1.8 million from the Office of Policy Research without Congressional authorization.
115. Defendants have engaged in other types of gross mismanagement as well. They have installed as board members of grantee organization loyalists who are woefully unqualified to oversee leading media organizations and are not going to exercise independent judgment if there is an attempted breach of the firewall. They have ignored requests for decisions on key personnel matters, despite receiving numerous email requests about open positions and positions needing approval. They have ignored these requests almost entirely—effectively denying them without basis and severely hamstringing the agency’s ability to fulfill its mandate.
116. Defendants have also actively put USAGM employees in harms’ way in the context of the ongoing COVID-19 pandemic. During in-person meetings, Defendants refuse to wear masks, and do not social distance. Plaintiff Walsh chaired the Agency’s Emergency Action Committee, which set COVID-19 policies, and Plaintiff Lennon was a member of the committee. The body established extensive policies to protect the health of USAGM employees, but in many instances Defendants have utterly ignored those policies, without replacing them with any effective alternatives.
117. Defendants have also refused to approve policies or practices that would protect agency employees from COVID-19. For instance, Plaintiff Walsh asked for permission from the CEO Office to send a reminder email to all agency employees to wear masks at the office—a
37 See Consolidated Appropriations Act, Pub. L. No. 116-93 (2019).
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request ignored for weeks. When Walsh finally asked then-Chief Operating Officer Andre Mendes why Defendants would not approve of the simple reminder, Mendes advised that the new CEO’s team did not want to approve a reminder email about the mask policy because no one in the CEO’s office ever wears a mask and they do not want any attention paid to that fact or to possible disciplinary repercussions of employees failing to follow the policy. The policy is not only a USAGM policy; the D.C. Mayor’s office has ordered that masks be worn in office buildings, and that those in office buildings exclude or eject those who do not wear masks indoors.38 Similarly, Defendants have refused to institute even a simple temperature-screening process for individuals entering the building. While a number of employees worked to set up such a program, Defendants have told them that they will not be implementing it. Instead, Pack has joked about instituting policies that will actually cause his employees to get COVID-19.39
118. Aside from violating Defendants’ duties to the networks and their take care obligations, these actions all violate the firewall. They are designed to turn the proverbial screws on the networks, establish authority, and stifle perceived dissent. At best, Defendants are engaged in gross mismanagement. At worst, a transparent conspiracy to violate the law. Either way, these misdeeds must be stopped.
Defendants’ Misconduct Leads To Continued Bipartisan Intervention And Media Outrage Including Interviews Where Pack Concedes His Unlawful Acts
119. Defendants’ conduct has sparked bipartisan outrage. Representative Eliot Engel initially led the way, noting early on that he believed “USAGM’s role as an unbiased news organization [wa]s in jeopardy under [Pack’s] leadership.” Less than a month into Pack’s tenure
38 D.C. Mayor’s Order 2020-080: Wearing of Masks in the District of Columbia To Prevent the Spread of COVID-19 (July 22, 2020), https://coronavirus.dc.gov/maskorder.
39 The Federalist, How Michael Pack is Draining The Swamp and Rooting Out Bias in Taxpayer Journalism, (Aug. 27, 2020), https://thefederalist.com/2020/08/27/why-public-broadcasting-drifted-left-and-what-can-bedone-to-fix-it/.
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as CEO, a bipartisan coalition of seven Senators—including Republicans Marco Rubio, Lindsey
Graham, and Susan Collins—sent a letter to Pack expressing their “deep concern” about his
unilateral actions to terminate the heads of some of the USAGM networks and “remov[e] of [the
networks’] boards” for “no specific reason.” The Senators believed Pack’s actions to be so
egregious that they vowed to conduct “a thorough review of USAGM’s funding to ensure that
United States international broadcasting is not politicized and the agency is able to fully and effectively carry out its core mission.” 40
120. The Senators concluded that Pack’s actions “raise[] questions about the
preservation of these entities and their ability to implement their statutory mission now and in the
future.” Even though clear federal statute and regulation require Defendants to uphold the
highest standards of journalism and abide by the firewall, the Senators “urge[d] [Pack] to respect
the unique independence that enables USAGM’s agencies and grantees” and felt the need to
remind Pack of the obvious, that:
the credibility and independence of these networks [is] required by law, [and] is critical for audiences overseas living under repressive regimes, the network’s brave journalists who often come under threat for their work, and the future of U.S. broadcasting. [T]he United States . . . cannot afford to invest in an enterprise that denigrates its own journalists and staff to the satisfaction of dictators and despots, nor can it be one that fails to live up to its promise of providing access to a free and independent press. Congress set up these networks, and its governance structure at USAGM, to preserve the grantees’ independence so they can act as a bulwark against disinformation through credible journalism.41
40 Letter from Marco Rubio et al., U.S. Senators, to Michael Pack, CEO, USAGM (July 1, 2020), https://www.rubio.senate.gov/public/_cache/files/20db345a-a326-4a8e-91e7be7a7f420137/EC533D38ED5702A49F6070DF40808FB3.20.07.01-letter-to-michael-pack-re-usagm.pdf.
41 Id.
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121. Days later, on July 3, 2020, members of the House of Representatives issued a
press release after sending a letter to Chairwoman Nita Lowey and Ranking Member Hal
Rodgers of the House Committee on Appropriations, Subcommittee on State, Foreign
Operations, and Related Programs, in advance of the Subcommittee's FY 2021 Markup Meeting
“urg[ing] the subcommittee to consider legislative actions that would bolster congressional
oversight of the [USAGM], ensure its journalistic independence, and safeguard its mission.” The
letter carefully articulated all of the “alarming developments” within USAGM, including the
firing of the officers and presidents of USAGM’s networks, removing the independent members
of the grantees’ boards and “replac[ing] them with Pack and political loyalists,” as well as
freezing funding for various programs and personnel. As the letter stated:
The management [Pack] removed were highly respected, experienced, and dedicated to maintaining the independence of USAGM and ensuring that its programming was free from political interference. We are concerned that it is precisely that resistance to politicization of programming and reporting that led to their abrupt dismissal. We are deeply concerned. . . . Deviating from [best practice] standards will impair the trust built over years in the independence and safety of the tools supported through USAGM. As the United States confronts a rising authoritarian tide around the world, and an aggressive effort by Russia, China, and other powers to undermine the tenets of liberal democracy, USAGM has never been more vital. The strength of USAGM comes directly from providing truth-based reporting and programming that adheres to the standards of professional journalism, precisely the information that autocratic regimes block in favor of propaganda. If the firewall that protects USAGM’s editorial independence is eroded, it will make USAGM ineffective. Rather than providing a counterpoint to autocratic regimes, it would call into question the U.S.’s commitment to democratic values, and risk reinforcing misperceptions that USAGM media outlets are simply state
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propaganda, no different from Russia Today or others around the world.42 Pack did nothing to allay Congress’s concerns. Instead, he and the other Defendants consistently
and purposefully breached the firewall to politicize the programming of USAGM and its
networks—the exact fear Congress had articulated.
122. Pack’s blatant breaches of the firewall led Representative Eliot Engel, Chairman
of the House Committee on Foreign Affairs, to make yet another statement in August, the same
day Pack placed Turner, Powers, Lennon, Walsh, Tran, and Kligerman on administrative leave.
Representative Engel admonished Pack for “once again attempting to purge USAGM of the
apolitical, career officials who have helped ensure that the agency fulfills its mission to provide
unbiased news and information around the world.” Representative Engel continued, stating that
[Pack] is destroying the decades-old legacy of America’s international broadcasting efforts in a clear attempt to transform the agency into an ideological mouthpiece to promote Donald Trump in advance of the election. And, despicably, he or someone in his inner circle leaked the names of career individuals to the New York Post as he was in the process of sidelining them.43 Representative Engel concluded by reminding the American public that “[t]he United States is
not a dictatorship, and [Engel] will not stand by as Donald Trump tries to create a Soviet Tass or
Chinese Xinhua government mouthpiece through his henchman, Michael Pack.”44
123. In response, Pack doubled down. In an interview with Chris Bedford on
Federalist Radio Hour, Pack effectively conceded he violated the law by breaching the firewall,
42 Press Release, Reps. Adam Schiff et al., U.S. Representatives, Schiff, Raskin, Engel, Colleagues Send Letter to Appropriations Subcommittee to Bolster Oversight of U.S. Agency for Global Media (July 3, 2020), https://schiff.house.gov/news/press-releases/schiff-raskin-engel-colleagues-send-letter-to-appropriationssubcommittee-to-bolster-oversight-of-us-agency-for-global-media.
43 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Statement on Purge of USAGM Officials (Aug. 12, 2020), https://foreignaffairs.house.gov/2020/8/engel-statement-on-purge-ofusagm-officials.
44 Id.
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comparing his mission as USAGM CEO to his role as head of the Claremont Institute, an entity dedicated to far-right thinking. This is the type of entity Pack intends to lead Voice of America to become.
124. In continuing to talk about the mission of Voice of America, Pack made clear during his interview that he believed that Voice of America “is supposed to represent the Administration’s point of view along with legitimate criticism but in a full and forthright manner.”45 That is false, and contradicted by statute. Voice of America is chartered to “serve as a consistently reliable and authoritative source of news” and to “represent America, not any single segment of American society,” and certainly not one Administration’s view. This is a clear violation of the firewall: USAGM officials are forbidden from even “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c).
125. When asked about the firewall, Pack said 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.”46 Pack openly mocked the firewall’s protections when he talked about withholding journalist’s J-1 visas because he is worried that since “be[ing] a journalist is a great cover for a spy”—that some of the J-1 visa holders might try and “penetrate[]” USAGM and he needs “to make sure that doesn’t happen,” a suggestion which the Federalist later argued was “reasonable.”47
45 Interview by Chris Bedford, Senior Editor, Federalist, with Michael Pack, CEO, USAGM (Aug. 27, 2020), https://thefederalist.com/2020/09/03/npr-manipulates-federalist-interview-with-voa-executive-on-behalf-ofgovernment-employees-opposing-reform/ (“Pack Federalist Interview”).
46 Id. 47 Id.
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126. As Jason Rezaian, a writer for The Washington Post who was imprisoned for 544 days in Iran on false accusations of espionage explained to Voice of America, Pack’s comments are “irresponsible and fly in the face of the mandate of this illustrious and long-standing institution . . . . [These] public statements made by Western officials are used against people who are already really vulnerable, who are already being held . . . [T]his could mushroom into another one of those situations where suddenly many honorable hardworking journalists . . . are going to face greater danger.”48
127. Both NPR and The Washington Post also reported on Pack’s interview on the “pro-Trump website The Federalist.” NPR commented that despite Pack’s stance that his job was “to drain the swamp, to root out corruption and to deal with these issues of bias, not to tell journalists what to report,” that “it appears that Pack is, in fact, interested in influencing which stories get told, and how,” citing to multiple instances of the firewall being “explicitly violated by Pack and the team he has brought in.”49 This includes the firing of the Standards Editor, stories being improperly removed from Voice of America’s websites, and the involvement of a political appointee in the Urdu investigation as described above.
128. The Washington Post also reported that “Pack has presented no evidence that anyone at Voice of America is a foreign intelligence agent. Nor has he explained why Voice of America and sister agencies such as Radio Free Europe and Radio Free Asia—media
48 Jessica Jerreat, Members of Congress Call on USAGM to Explain J-1 Visa Denials, Voice of America (Sept. 16, 2020), https://www.voanews.com/usa/members-congress-call-usagm-explain-j-1-visa-denials.
49 David Folkenflik, At Voice of America, Trump Appointee Sought Political Influence Over Coverage, NPR (Sept. 2, 2020), https://www.npr.org/2020/09/02/907984631/at-voice-of-america-trump-appointee-soughtpolitical-influence-over-coverage.
(Cont’d on next page)
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organizations that don’t control sensitive government information—would be an appealing target for penetration by a hostile power.”50
129. Rather than addressing these criticisms, Pack continues to propound the same dangerous rhetoric to anyone who will listen. On September 10, 2020, in an interview on the Sara Carter Podcast, Pack once again claimed that Voice of America and the other USAGM networks are “a natural place for foreign intelligence to be . . . [I]t’s a good place to put a spy if you are Chinese or Iranian or Pakistani intelligence. You can have access to the State Department, you have access to lots of material, you could influence broadcasts back to your home country and there have been high-profile examples of that over our history.”51 He agreed with Carter when she said “there are people and there are . . . intelligence agencies, the Chinese, the Pakistani’s, Afghanistan, . . . I would even say the British. Anybody who could spy, or anybody who could get into the government, could utilize these agencies.” “That’s right,” Pack replied. “We don’t know whether over these 10 years, foreign intelligence agencies have penetrated the Voice of America or the other organizations, and they’ve been a target for foreign intelligence from the very beginning.”
130. But Pack again provided no evidence of any counterintelligence activity within USAGM—because there is none. Nor did he offer any argument as to why his theory was rational. It is not. Contrary to Pack’s assertion, USAGM network journalists do not have a generalized “access” to the State Department or to any materials beyond what private media
50 Sarah Ellison & Paul Farhi, New Voice of America overseer called foreign journalists a security risk. Now the staff is revolting., Wash. Post (Sept. 2, 2020), https://www.washingtonpost.com/lifestyle/style/new-voice-ofamerica-overseer-called-foreign-journalists-a-security-risk-now-the-staff-is-revolting/2020/09/01/da7fa0a8eba2-11ea-ab4e-581edb849379_story.html.
51 Sara Carter Show, supra note 3.
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journalists have. Voice of America reporters do not have access to State Department files or computer systems.
131. In fact, Voice of America reporters’ relationship with the State Department is no different from that of private reporters. Voice of America journalists undergo the same vetting as all other media to obtain credentials (called “hard passes”) issued by the State Department, the White House, and the Department of Defense. Serving Voice of America does not provide reporters with any increased access compared to what a reporter from the AP, Reuters, NPR, or CNN would have. Nor do Voice of America reporters generally come into contact with classified materials; again, Voice of America reporters only access those classified materials that they obtain through investigative reporting, in the same manner as NBC, The New York Times, or the Washington Times. Contrary to Pack’s statements, then, there simply is no incentive for foreign intelligence agencies to “infiltrate” these independent news media organizations.
132. Pack’s claim that a foreign spy could “influence broadcasts back to [their] home country” is equally specious. It is effectively impossible for a Voice of America journalist to purposefully yet surreptitiously manipulate reporting so as to benefit a hostile power. Voice of America’s journalists operate as a team, and no broadcast is done in a vacuum. Radio and television segments are reviewed by multiple copy and video editors. The language services are directly monitored by professional journalists employed in the central newsroom, and more importantly, the news services are public broadcasts. Even if a Chinese agent, for instance, sought to publish pro-Chinese news through Radio Free Asia, the stories are printed and
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publicized around the world. Any influence by foreign spies would be readily apparent both inside and outside of the newsroom.52
133. Also in that same interview, Pack again admitted not only that he breached USAGM’s statutory and regulatory firewall but that he actively intended to do so. He said of the networks that “in some cases they’re not reporting the news even, in an objective, balanced manner . . . [T]he things that are unfair need to be purged” and that they “need[] controls to make sure that [the news] is even handed.”53 He claimed that prior to his appointment, the networks were “essentially not managed for 20 years,” ignoring the storied bipartisan board and prior CEOs that managed Voice of America and the thousands of dedicated journalists who have served their country at the USAGM networks. Contrary to that assertion, as the Office of the Inspector General found in its 2019 inspections of the Agency, USAGM was able to meet its oversight, reporting, and language review requirements, all while “improv[ing] strategic direction at the executive level” and “respect[ing] the broadcasting entities’ editorial independence.”54
134. The implication of Pack’s remarks is clear: Pack disagrees with the content of Voice of America’s reporting and editorial choices, and intends to manage those choices and to
52 And indeed, Voice of America and Radio Free Asia have published critical stories of China numerous times. See, e.g., Press Release, Voice of America, A Statement from VOA Director Amanda Bennett (Apr. 10, 2020), https://www.insidevoa.com/a/a-statement-from-voa-director-amanda-bennett-/5367327.html. And Radio Free Asia has published groundbreaking stories unfavorable to China, including its extensive coverage mass detention of Uyghurs in Western China and China’s undercount of COVID-19 deaths in Wuhan. See, e.g., Radio Free Asia, Estimates Show Wuhan Death Toll Far Higher than Official Figure, Voice of America (Mar. 27, 2020), https://www.voanews.com/science-health/coronavirus-outbreak/estimates-show-wuhan-death-tollfar-higher-official-figure. As William Harlan Hale explained, for Voice of America (and its sister networks), “[t]he news may be good. . . . The news may be bad. But we shall tell you the truth.”
53 Sara Carter Show, supra, note 3. 54 Office of Inspector Gen., U.S. Dep’t of State, Targeted Inspection of the Governance of the United States
Agency for Global Media 5, 7 (Apr. 2019), https://www.oversight.gov/sites/default/files/oig-reports/ISP-IB-1922.pdf.
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ensure people at Voice of America “suffer the consequences” for what he perceives as a “leftwing, leftward bias” inherent to media. As to purportedly biased coverage, Pack has said he was “shocked” at the bias he encountered, and rebuked previous Agency leadership for their treatment of bias, which he equated to “at the most, a slap on the wrist.” He expressly admitted that “we [at USAGM] are continuing to look into it” and that USAGM has worked “to hold people accountable and do a complete investigation” of alleged breaches of journalistic practices—a clear firewall violation. Pack further conceded that USAGM had personal involvement in the resulting disciplinary actions for this “biased” coverage: “[P]eople all the way up the chain have had varying degrees of disciplinary action.”
135. Pack’s own bias against his own agency staff was palpable in the Carter interview. He accused prior public servants at the agency of “covering up things” during his confirmation process. He claimed that his confirmation was held up because “things happened that they were afraid that we were going to expose.” He has offered no evidence of these claims. In fact, the alleged subject of the purported cover up—flaws in the security clearance process at USAGM—was an acknowledged problem on which USAGM had worked extensively to take corrective action long before Pack arrived. Pack and his confirmation “sherpa,” Defendant Cullo, refused numerous offers for briefings from career Agency senior staff, including several of the Plaintiffs, related to all Agency and network operations, strategic plans, and initiatives. Just because Pack had no knowledge of how USAGM functioned prior to his ascension does not mean the dedicated civil servants were working to cover things up.
136. Pack’s rhetoric puts tens if not hundreds of bona fide reporters at risk of serious harm: The CEO of their own agency has branded Voice of America reporters as possible spies, many of whom work around the world, often in countries hostile to the free press. If anything,
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Pack’s irresponsible statements are a gift to the world’s autocrats, advancing their interests in delegitimizing the very free press meant to counter autocratic disinformation and propaganda. Although it is true that government auditors deemed USAGM’s background check procedures insufficient in certain areas, that fact alone does not render USAGM’s networks a hotbed of espionage. Pack’s view otherwise is contrary to all reason—so divorced from reality that it evidences that his reason for “purging” journalists and employees is at best mere pretext to justify an unlawful inquisition into journalistic practices designed to convert unlawfully the USAGM networks into governmental propaganda and to root out his imagined “deep state” conspiracy. As one congressman put it during a hearing before the House Foreign Affairs Committee:
Mr. Pack, without evidence, has made libelous claims, really, that, were these journalists to go get a job somewhere else in another country, could threaten not only their livelihoods, but their safety. When somebody from the United States government has labeled a journalist, a spy, who is going to go trust them in another country? Who is going to go hire them somewhere else?55 137. Pack, during the Carter interview, explained what he believed his mission to be: “Our ideas are under attack, and they are, our enemies are ramping up their information and disinformation campaigns, and we really need to ramp ours up, and defend American ideas and principles.”56 Despite the decades of work to establish Voice of America and its sister networks as exporters of America’s great tradition of freedom of the press, Pack equated the USAGM networks with raw propaganda and disinformation. He then repeated his position that the
55 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Rep. Joaquin Castro).
56 Sara Carter Show, supra, note 3.
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networks need to publish “the administration’s view,” and said that “if [the Agency] doesn’t fulfill its mission, it will not survive.”
138. Pack fundamentally misunderstands the mission and virtues of the agency he leads. The networks are not propaganda. They are not messaging devices for the Administration’s views. To the contrary, the very independent media he seeks to destroy is the best exemplar of America’s ideals and values that this country can share with the world and the best way to combat national security threats from disinformation. To equate USAGM journalists with the disinformation campaigns they were created to combat is a threat to U.S.-funded journalism and to the entire nation.
139. Recognizing these threats, Congress is taking Pack’s unlawful actions seriously. Pack was subpoenaed to testify before the House Foreign Affairs Committee on September 24, 2020, to explain the “outrageous actions since he took control of USAGM.” Pack “br[oke] his commitment” and failed to appear “in defiance of [that] subpoena.”57
140. Shortly after the conflicts of interest policy was released, Representative Engel yet again publicly rebuked Pack’s actions over the last couple of months, calling his tenure a “disaster” and urging Voice of America’s acting director to “ignore any attempt by USAGM management to improperly interfere in the service’s work”:
One of Michael Pack’s first actions as USAGM’s CEO was to remove Voice of America’s standards editor, a breach of the firewall meant to protect VOA and our other broadcasters from interference by any administration. Hobbling VOA’s ability to police itself, Mr. Pack is now sending his right-wing political appointees after a respected and experienced journalist who recently authored stories providing unbiased reporting on President Trump’s handling of the coronavirus. Mr. Pack’s attempt to tell the broadcast services more broadly how to deal with
57 Oversight of the United States Agency for Global Media and U.S. International Broadcasting Efforts: Hearing Before the H. Comm. on Foreign Affairs, 116th Cong. (Sept. 24, 2020) (statement of Chairman Rep. Eliot Engel).
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perceived conflicts of interest likewise breaches the independence of those services and their journalists. . . .58 Pack’s Abrupt “Repeal” of the USAGM Firewall Regulation Purports to Eviscerate Protections of USAGM Networks’ Journalism from Political Interference 141. At approximately 10:18 p.m. on October 26, 2020, less than one hour before Defendants filed their Opposition to Plaintiffs’ Motion for Preliminary Injunction, USAGM abruptly issued a “final rule” purporting to immediately repeal the Firewall Regulation, in a transparent effort to undercut Plaintiffs’ regulatory firewall claims.59 This so-called “final rule” was accompanied by a brief statement by Pack explaining that the decision to repeal this regulation was based on purported “extensive legal analysis” by “external” legal counsel. 142. According to Defendants, the Firewall Regulation needed to be rescinded because it was in somehow in tension with USAGM’s mandate to “support the foreign policy of the United States.”60 Pack also claimed that it frustrated his ability as CEO to “direct and supervise all broadcasting activities” of the USAGM networks and made it difficult for USAGM’s leadership to effectively manage USAGM personnel, including, for example, preventing “biased reporting,” or issuing “policies and procedures that require journalists not to advocate political positions.”61 Pack’s statement regarding the rescission of the Firewall Regulation goes so far as to claim that the existence of the Firewall Regulation “threatened constitutional values” by inhibiting him, as an appointee of the President, from pursuing the President’s foreign-policy
58 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Statement on USAGM Officials Breaching the “Firewall” and Targeting VOA Journalist (Oct. 5 2020), https://foreignaffairs.house.gov/2020/10/engel-statement-on-usagm-officials-breaching-the-firewall-andtargeting-voa-journalist.
59 USAGM Final Rule, October 26, 2020, https://www.usagm.gov/wp-content/uploads/2020/10/Firewall-RepealNotice.pdf.
60 Id. 61 Id.
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objectives, which threatened to render USAGM “effectively unaccountable to Congress and the President.”62 Critically, the repeal states that Defendants believe that “USAGM’s statutory mandate”—namely, the IBA—“and Article II necessarily require USAGM—at times—to control content.”
143. The sudden rescission of the Firewall Regulation was viewed with alarm by members of both parties in Congress, who correctly understood the move to be the latest and most blatant effort by Defendants to eliminate the protections established to preserve the broadcast networks’ journalistic independence and integrity and to convert the broadcast networks into a megaphone for the political agenda of the U.S. government.
144. Representative Engel “renew[ed] his call for Mr. Pack to resign or be fired” but “worr[ies] about what additional damage he can do in the meantime.” He said that with this move, Pack had:
[T]aken his rampage on America’s international broadcasting to another level. He’s trying to tear down the legally mandated firewall that protects USAGM broadcasters from outside interference. But Congress created that firewall by law and although Mr. Pack can huff and puff, he can’t blow that wall down. The rule he rescinded yesterday clarified the legal protections. The firewall remains. This may come as small comfort to journalists at USAGM broadcasters, as Mr. Pack has shown again and again that he doesn’t feel constrained by laws. Legal action against him is piling up and he remains in defiance of a duly authorized subpoena to appear before the Committee on Foreign Affairs. However, I encourage USAGM journalists to continue carrying out their important work and to ignore illegal interference from Mr. Pack
62 Id.
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and other administration officials. The law remains on your side.63 145. Representative Engel’s Republican counterpart on the House Foreign Affairs Committee, the Ranking Member, Representative Michael McCaul, said that: It is unclear why CEO Pack is opposed to journalistic objectivity at USAGM and its networks. Without it, the mission and effectiveness of the agency is undermined. Fortunately, the requirement that USAGM’s broadcasts be objective and conform with the highest professional standards in broadcast journalism is mandated in statute. Mr. Pack may be able to repeal a regulation, but he cannot repeal the law.64 146. Senator Robert Menendez, the Ranking Member of the Senate Foreign Relations Committee, called for his colleagues in Congress to help “stop [Pack’s] nonsense and ensure that the reporters, editors, and producers at all of USAGM’s grantees can continue their critical work without political influence from this White House or anyone else.” Senator Menendez said that USAGM’s: Editorial independence and integrity is a statutorily-mandated component of USAGM’s work. This principle sets the networks and grantees apart from state-run propagandistic media in the countries in which they operate. Arbitrarily rescinding the regulatory firewall is not only an attack on USAGM’s independence, it is an affront to the hundreds of thousands of
63 Press Release, Rep. Eliot L. Engel, Chairman, House Committee on Foreign Affairs, Engel Statement on Michael Pack’s Attack on the Statutory Firewall (Oct. 27, 2020), https://foreignaffairs.house.gov/pressreleases?ID=C48C338F-6F23-4E20-979E-FA4F4F7EAB0C.
64 Jessica Jerreat, USAGM CEO Criticized Over Move to Rescind Firewall Regulation, Voice of America (Oct. 27, 2020), https://www.voanews.com/usa/usagm-ceo-criticized-over-move-rescind-firewall-regulation.
(Cont’d on next page)
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people around the world that have come to rely on these critical services.65 147. Senator Chris Murphy of the Senate Foreign Relations Committee, who recently proposed legislation to strengthen the protection of USAGM’s journalists from political interference, said that: Whether Michael Pack wants it there or not, Congress cemented the firewall at USAGM in legal statute to protect broadcasters from the very outside political interference we’re seeing right before our eyes. America is a democracy, and the firewall that was codified as part of the International Broadcasting Act is what distinguishes USAGM-funded networks from state-sponsored propaganda we see in places like Russia and China. We cannot allow the president’s political appointees to influence journalistic content and we must ensure the law remains on the side of the journalists—not Trump’s political hacks.”66 Plaintiffs Have Suffered, And Continue To Suffer, Irreparable Harm Due To Defendants’ Repeated Breaches Of The Firewall And Each Plaintiff Has Standing To Bring This Action. 148. Each of the Plaintiffs has suffered and continue to suffer irreparable harm as a result of Defendants’ ongoing efforts not only to breach but also to demolish the firewall. Their careers have been affected and their reputations attacked and maligned. Each of the Plaintiffs has worked—some of them literally for decades—to support and build the journalistic efforts at Voice of America and the other USAGM entities, but Defendants are destroying the agency
65 Press Release, Sen. Robert Menendez, Menendez Statement on Michael Pack’s Latest Attack on USAGM (Oct. 27, 2020), https://www.foreign.senate.gov/press/ranking/release/menendez-statement-on-michael-packs-latestattack-on-usagm.
66 Press Release, Sen. Chris Murphy, Murphy Statement on USAGM’s Repeal of Firewall Regulation (Oct. 27, 2020), https://www.murphy.senate.gov/newsroom/press-releases/-murphy-statement-on-usagms-repeal-offirewall-regulation.
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entirely. Plaintiffs’ jobs—current and, for those placed on leave and planning to return, future— are harmed every day .
149. With Voice of America’s independence at risk, its credibility is necessarily at risk as well. Hiring qualified journalists will be more difficult. Reporting will be more difficult. Managing and supervising journalists will be more difficult. Indeed, many of the Agency’s most qualified and dedicated civil servants have left voluntarily, due to the conditions to which they have been subjected. When Pack took office, the Agency had 12 career Senior Executive Service (SES) employees; now there are four. The Acting Director of Congressional Affairs left the Agency to move to the Department of Defense, while the chief litigator within the General Counsel’s office left to join the Department of State. The Deputy Chief Financial Officer departed as well. Foreign governments are already pointing to Pack’s encroachments on Voice of America as an “embarrassing situation” and that its content will be met “with suspicion in targeted countries.”67 Agency personnel fulfilling their duties as public servants to tell America’s story and to export one of America’s greatest products—free speech—will be fundamentally harmed.
150. Defendants’ actions have severely damaged the reputation of USAGM, its broadcast networks, and its employees, and have caused USAGM’s peer agencies abroad to question USAGM’s commitment to the core principles of fair, objective reporting and independence from political influence. USAGM is a member of the “Directors General 7,” (“DG7”) a group of leading publicly-funded international broadcasters (also including the BBC (United Kingdom), Deutsche Welle (Germany), Canadian Broadcasting Company (Canada),
67 Li Qingqing, Ironic for US propaganda machine to expel foreign journalists, China’s Global Times (Aug. 24, 2020, 11:08 PM), https://www.globaltimes.cn/content/1198736.shtml.
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Australian Broadcasting Corporation (Australia), NHK World (Japan), and France Media Monde (France)) with a shared commitment to the values of journalistic independence and the promotion of free expression abroad. For several years, Plaintiff Powers has served as USAGM’s representative to the DG7 and has regularly participated in the group’s quarterly meetings, annual conferences, and other committees. However, the other members of the DG7 expressed growing concern about USAGM’s leadership, direction, and continued commitment to journalistic independence, and have stated that Powers will be excluded from this year’s annual DG7 meeting. The other DG7 members have also stated that if Pack and other members of USAGM’s leadership continue to attack the broadcast networks’ journalistic independence from the Trump Administration’s agenda, that neither Powers nor any other USAGM employee would be welcome to participate in the DG7 going forward. The destruction of the firewall has directly damaged Powers’ reputation in the community of international broadcasters—a community essential to his academic work and expertise.
151. Plaintiff Powers also serves as a member of the Executive Committee for the Association of International Broadcasters (“AIB”), a non-profit trade association that represents and supports global media organizations. However, due to Pack’s ongoing efforts to interfere with the integrity and independence of the USAGM networks’ reporting, AIB leadership will not be including Powers in their quarterly Executive Committee business meeting and will not allow Powers to exercise any related voting rights or responsibilities due to their concerns that USAGM was no longer committed to the shared values of press freedom and journalistic independence from political influence. In this way, the Defendants’ ongoing firewall breaches and efforts to influence the USAGM networks’ coverage have diminished the standing of USAGM and have significantly impaired the ability of its senior leaders to participate in policy
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discussions and information exchanges with other international broadcasters. Powers understands that his exclusion from both DG7 and AIB are the direct result of his association with a broadcast agency that no longer shares those groups’ commitment to editorial independence.
152. The actions of Defendants are also directly stifling and chilling protected activity and speech. In an editorial meeting in September 2020, in fact, newsroom managers at Voice of America killed multiple stories on political issues specifically because of the increased scrutiny, the investigations, and the risks of retaliation by Defendants. Voice of America added a third copy editor to all political stories, to avoid accusations of bias—by way of comparison, other outlets have at most one copy editors per story. Requiring more copy editors to review every political piece slows the editorial process, hampering coverage and prohibiting Voice of America from covering the “new” in “news.” At the same time, reporting has been watered down to the point of self-censorship, so as to not give Defendants any argument—even an unreasonable one—that a published story could be interpreted as pro-Biden. Voice of America employees throughout have recognized an increase in self-censorship that grows with each additional breach of the firewall.
153. In addition, USAGM political appointees are beginning to take direct steps towards silencing and censoring Voice of America journalists in their speech activities outside of the newsroom. On information and belief, Defendant Wuco, an adviser hired by Pack to assist him in the front office of USAGM, has put pressure on the Acting Director of Voice of America to take disciplinary action against Voice of America journalists for social media activity Wuco has deemed to be biased and inconsistent with journalistic ethics. To Plaintiffs’ knowledge, Wuco has never been a journalist.
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154. As a result of Defendants’ actions, Voice of America’s journalism has been severely hampered. As of October 2, 2020, for instance, nearly 200 positions were open at Voice of America that Defendants prohibited the network from filling. According to an internal Voice of America assessment:
The Agency’s hiring freeze and non-renewal of J-1 work authorizations and [personal service contracts] will have long-term consequences by crushing morale and diminishing VOA’s brand and reputation, handicapping our ability to recruit top professionals and journalists in the future. Current work loads are not sustainable, and staff burnout and rising overtime costs are a concern. The internal assessment further indicated that numerous programs and even several smaller language services might have to close. As a result of Defendants’ activities, the assessment made clear that “VOA will lose affiliates, credibility, audience, and standing in many countries, allowing competitors from hostile competitors to fill the void,” including, but not limited to, organizations like China’s China Central Television (CCTV).68 155. Defendants’ actions are also having a severe effect on Voice of America’s language services. Voice of America has had to cancel all Hausa language television partner stations, which have a target audience of 220 million people, and has had to cancel Hausa radio and Twitter content that targets young people who are most vulnerable to extremism. Defendants have also caused a severe shortage of editors for the Mandarin service, limiting news coverage and analysis and cancelling a popular program called “China on Twitter.” Voice of
68 Further harming Voice of America’s global credibility, Pack has publicly maligned the USAGM networks’ journalism as “substandard,” USAGM Denounces Substandard Journalism Within Federal News Networks; Agency Publishes Clarification of Federal Reporting Expectations, USAGM Press Release (Oct. 6, 2020), https://www.usagm.gov/2020/10/06/usagm-denounces-substandard-journalism-within-federal-news-networksagency-publishes-clarification-of-federal-reporting-expectations/, even as Voice of America recently won an award for its content, prevailing over Frontline and NBC News in awards for longform digital video storytelling. See Shoura, Online Journalism Awards, https://awards.journalists.org/entries/shoura/.
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America has similarly had to reduce or cancel Russian-language, Iranian, and Korean programming, and has been forced to halt development of new programs specific to issues in Venezuela. Critically, too, Defendants’ personnel interference has affected quality control and editorial oversight, including, as the Voice of America internal assessment described, “[u]nacceptable adverse impact[s] on editorial oversight” as a result of insufficient personnel.
156. Defendants’ repeated actions in violation of the firewall have directly impaired the ability of the broadcast networks’ journalistic and editorial staff, including Plaintiff Chao, to produce and publish reliable, accurate, and balanced journalism. These firewall violations, culminating in the rescission of the regulatory firewall, have signaled Defendants’ belief that they have the authority to control the journalistic content published by Voice of America and the other broadcasting networks, which poses an existential threat to the networks’ credibility and reputation in a competitive media marketplace, and threatens to undo the decades of time and effort Chao and her journalistic colleagues have invested in earning the trust and respect of their audiences by consistently producing fair, objective reporting that is not driven by the political agenda or current policy positions of the United States government. Defendants’ conduct has also actively chilled the journalistic content that Chao is charged with managing, and the journalists she is responsible for supervising and supporting.
157. Voice of America cannot continue to function as required by law when placed under these types of pressures. And its reporters, facing serious and personal risks to their future—and for some foreign correspondents, their safety—have been and unquestionably will be chilled in their news coverage. This is the very type of irreparable harm that the First Amendment and the firewall are meant to protect against.
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158. Many journalists, both within Voice of America and the related entities, would be plaintiffs in this action were it not for Defendants’ persistent and ongoing breaches of the firewall and their retaliation. These journalists have been hindered in joining this action as a result of Defendants’ misdeeds. Specifically, journalists reasonably fear the type of retaliatory action suffered by Steve Herman, the USAGM Plaintiffs, and others. Defendants have shown themselves ready to retaliate against anyone who would stand in the way of their campaign to control the broadcasting networks and influence their content. Journalists also are unable to pursue their claims for fear that, if they publicly advance these claims, the new Conflicts of Interest policy will take them off their beat and leave their already-stretched-thin colleagues without sufficient journalistic support to fulfill Voice of America’s mission. They also fear being unfairly castigated as biased. Journalists’ careers and their ability to engage in expressive activity rise and fall with the public’s perception of their credibility, objectivity, honesty, and balance in their reporting, editing, and management of a news organization. Any attack upon a journalist’s credibility imperils her career and threatens her ability to engage in protected First Amendment activity. Journalists cannot participate in this action without risking not only their position at Voice of America in the face of Defendants’ pattern of retaliation and unlawful activity but also their reputation for balance and impartiality.
FIRST CAUSE OF ACTION Violation of Administrative Procedure Act, 5 U.S.C. § 706(2): Defendants’ Actions Are Arbitrary, Capricious, Unconstitutional, Or Otherwise Not In
Accordance With Law 159. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 160. Individually and collectively, Defendants’ numerous firewall violations constitute “final agency action[s] for which there is no other adequate remedy.” 5 U.S.C. § 704.
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161. Under the Administrative Procedure Act, this Court is empowered to “hold unlawful and set aside agency action, findings, and conclusions found to be”: (1) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; (2) “contrary to constitutional right, power, privilege, or immunity”; (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”; or (4) “without observance of procedure required by law.” 5 U.S.C. § 706(2).
162. Defendants’ firewall breaches are “contrary to constitutional right, power, privilege, or immunity.” 5 U.S.C. § 706(2)(B). Defendants’ conduct infringes upon the First Amendment right to freedom of the press and the right to engage in protected First Amendment activity, and is unconstitutional retaliation and unconstitutional discrimination based on perceived viewpoint. Defendants’ actions—including their perceived-viewpoint discrimination—are presumptively unconstitutional, and because Defendants have no legal or rational justification for their misconduct, that conduct is unconstitutional. In fact, the only reasonable inference to draw from Defendants’ conduct is that Defendants intended to penalize those who have a perceived viewpoint that differs from Defendants’ political perspective. Defendants’ numerous breaches of the firewall therefore also constitute unconstitutional retaliation—actions undertaken to penalize several of the Plaintiffs and others for engaging in First Amendment protected activity.
163. Defendants’ conduct is also “not in accordance with law,” and is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (2)(C). Defendants’ misconduct violates the statutory and regulatory firewalls, which exist to protect the USAGM journalists’ professional independence and integrity and to enable them to operate within the highest professional standards of broadcast journalism. See 22 U.S.C.
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§§ 6202, 6204(b); 22 C.F.R. § 531.3. Defendants are forbidden from even “attempt[ing] to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks, including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities.” 22 C.F.R. § 531.3(c). Yet that is precisely what they have done, over and over again—attempting to coerce, intimidate, threaten, pressure, and interfere with the journalism of the USAGM networks. Defendants’ gross corporate mismanagement also violates the firewall in that it seeks to strangle the networks and coerce them into submission and because it violates the statutory take care clause, which requires that Defendants “respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the Board.” 22 U.S.C. § 6204(b).
164. Defendants’ firewall breaches are also “arbitrary and capricious.” 5 U.S.C. § 706(2)(A). Defendants’ conduct has no legitimate rationale and directly conflicts with the law, regulation, and the interests and mission of USAGM, the networks, and their employees. To date, Defendants’ expressed rationales for their misdeeds are their efforts to “drain the swamp,” root out the “deep state,” and attempt to prohibit “spies” from infiltrating the networks. These rationales are the height of irrationality—the product of baseless conspiracy theories devoid of any evidence in support.
165. Defendants’ misconduct has harmed and continues to harm the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all USAGM stakeholders’ and journalists’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
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166. As a result of Defendants’ actions, therefore, Plaintiffs have suffered and continue to suffer irreparable harm.
SECOND CAUSE OF ACTION Violation of Administrative Procedure Act, 5 U.S.C. § 706(2): Defendants’ Rescission of the Firewall Regulation Is Contrary to Established Law,
Unconstitutional, and Arbitrary and Capricious 167. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 168. Defendants’ abrupt attempt to rescind the Firewall Regulation on October 26, 2020 constitutes a “final agency action for which there is no other adequate remedy.” 5 U.S.C. § 704. 169. Under the Administrative Procedure Act, this Court is empowered to “hold unlawful and set aside agency action, findings, and conclusions found to be”: (1) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; (2) “contrary to constitutional right, power, privilege, or immunity”; (3) “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right”; or (4) “without observance of procedure required by law.” 5 U.S.C. § 706(2). 170. Defendant’s purported “repeal” of the Firewall Regulation is “not in accordance with law,” and is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(A), (2)(C). For decades, the statutes governing USAGM and its predecessor agencies have emphasized the need to uphold the credibility, objectivity, and journalistic independence of the broadcast networks. The current iteration of the IBA, passed in 1994, required USAGM’s predecessor agency, the Broadcasting Board, to “respect the professional independence and integrity of” the broadcast networks and grantees, IBA § 305(b), in order to ensure that they can operate “highest professional standards of broadcast journalism.”
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IBA § 303(5). Although Defendants’ decision to rescind the regulatory firewall relies on the 2017 NDAA’s creation of the unitary CEO position in order to expedite the agency’s decisionmaking, he omits that the 2017 NDAA reinforced the statutory firewall by requiring the USAGM CEO to “respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the board.” 22 U.S.C. § 6204(b). As such, Defendants mischaracterize the Firewall Regulation as an unlawful extension of the statutory firewall rather than a codification of existing law. On this basis, USAGM’s justifications in repealing the Firewall Regulation plainly misinterpret and contradict the statutes governing USAGM, and the repeal is therefore “not in accordance with law.”
171. The Defendants’ purported repeal of the Firewall Regulation likewise violates the First Amendment by attempting to control the reporting activities of journalists exercising their First Amendment rights and serving as a shining example for foreign audiences of the freedom of the press enshrined in the U.S. Constitution. By repealing the firewall regulation and invoking a purported right to control editorial content, the Defendants attempt to curtail that freedom of speech by eliminating a core protection insulating these journalists’ work from political interference, and threaten a chilling effect on the objectivity and credibility of the USAGM networks’ reporting by raising the specter that said reporting will be scrutinized based on its adherence to the U.S. government’s political agenda.
172. Defendants’ firewall breaches are also “arbitrary and capricious.” 5 U.S.C. § 706(2)(A). Defendants’ stated rationale for this action focuses on their contention that the Firewall Regulation inhibits Pack’s ability to directly supervise and manage the work of its journalists, but fails to meaningfully consider the paramount importance of the firewall to ensuring the continued credibility and effectiveness of the USAGM networks’ journalism and to
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the agency’s founding mission. USAGM’s “final rule” in support of rescinding the Firewall Regulation does not consider other key issues, such as the reliance of USAGM’s employees on the expectation that they would be able to report independent, objective news free of political interference, or the determination in the Firewall Regulation that USAGM should oversee the broadcast networks’ journalism “in a manner consistent with that conducted by other media organizations which operate editorially independent news divisions,” rather than the top-down model followed by state-run media organizations in other countries such as Russia, China, and Iran. The repeal is furthermore arbitrary and capricious in that its rationales are pretext for the true reason for the repeal: to gain an advantage in litigation, as evidenced by the fact that the repeal was effectuated fifty minutes before Defendants filed their opposition to Plaintiffs preliminary injunction motion. Given USAGM’s failure to consider these and other significant issues in promulgating this “final rule,” the rule is arbitrary and capricious in violation of 5 U.S.C. § 706(2).
THIRD CAUSE OF ACTION Injunctive Relief Under The First Amendment 173. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 174. Defendants’ firewall breaches violate the First Amendment by, including but not limited to: (A) unconstitutionally restraining rights under the First Amendment’s guarantees of free speech and freedom of the press; (B) unconstitutionally retaliating for activity protected under the First Amendment; (C) unconstitutionally discriminating based on perceived viewpoint; and (D) unconstitutionally imposing a vague and overbroad conflict of interest policy that confers on them unconstitutionally unfettered discretion to suppress speech.
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175. Plaintiffs are civil servants engaged in the work of supporting journalists, and these journalistic activities are entitled to First Amendment protection under the freedom of the press clause and the free speech clause of the First Amendment. Defendants have deprived USAGM journalists of their First Amendment rights to freedom of speech and freedom of the press by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants have also imposed an overbroad and unconstitutionally vague conflict of interest policy that confers on them unfettered discretion to suppress speech. Defendants’ actions have impacted the content of news coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the First Amendment. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation.
176. By interfering with the content of coverage and personnel, Defendants have prevented the USAGM networks and journalists from making independent decisions about what news to cover and how to cover it, in violation of the First Amendment. To date, Defendants’ expressed rationales for their misdeeds are their efforts to “drain the swamp,” root out the “deep state,” and attempt to prohibit “spies” from infiltrating the networks. These rationales do not satisfy any tier of First Amendment scrutiny.
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177. Defendants have retaliated against journalists and supporting personnel for engaging in expressive conduct and because Defendants perceive that certain people’s viewpoints differ from their own. Defendants perceive that USAGM journalists and Plaintiffs are liberal, anti-Trump and members of the “deep state.” Defendants’ efforts to interfere with the content of Plaintiffs’ news coverage and to undermine the efficiency of their organizations were undertaken to retaliate against and limit speech and journalistic activities. Defendants have made clear that coverage of the Trump Administration’s politics and policies that is found to be insufficiently complimentary will be met with reprisal, chilling the exercise of First Amendment rights. This is textbook unconstitutional retaliation and discrimination based on perceivedviewpoint. Defendants’ conduct is presumptively unconstitutional, and Defendants can offer no compelling rationale to justify it.
178. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ and journalists’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
179. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
FOURTH CAUSE OF ACTION Injunctive Relief for Violation of the Statutory Firewall, 22 U.S.C. §§ 6202, 6204
180. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein.
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181. In creating USAGM (and its predecessors) and its networks, Congress created a statutory firewall to protect the independence and integrity of its journalists and their reporting. Federal law provides that “United States international broadcasting shall . . . be conducted in accordance with the highest professional standards of broadcast journalism” and shall “be based on reliable information about its potential audience.” 22 U.S.C. § 6202(a)(5)–(6). In addition, “United States international broadcasting shall include . . news which is consistently reliable and authoritative, accurate, objective, and comprehensive” and which is “a balanced and comprehensive projection of United States thought and institutions, reflecting the diversity of United States culture and society.” 22 U.S.C. § 6202(b)(1)–(2).
182. Congress recognized that, to be effective, “the Voice of America must win the attention and respect of [the] listener[].” 22 U.S.C. § 6202(c). To meet that goal, Congress stated that Voice of America will “serve as a consistently reliable and authoritative source of news,” and that its news “will be accurate, objective, and comprehensive.” 22 U.S.C. § 6202(c)(1). Voice of America “will represent America, not any single segment of American society, and will therefore present a balanced and comprehensive projection of significant American thought and institutions.” 22 U.S.C. § 6202(c)(2). And when Congress created the office of the CEO, it required the CEO to “respect the professional independence and integrity” of its broadcasting services and grantees. 22 U.S.C. § 6204(b).
183. As officers of USAGM and its associated entities, Defendants are bound by the statutory firewall.
184. Defendants have egregiously, aggressively, and unabashedly violated the firewall by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to
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infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants’ actions have impacted the content of Plaintiffs’ coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the statutory firewall. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation, which in turn impacts and influences news coverage. Defendants’ conduct breaches the statutory firewall, ignoring the journalists’ professional independence and integrity and preventing the USAGM networks from operating within the highest professional standards of broadcast journalism.
185. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
186. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
FIFTH CAUSE OF ACTION Injunctive Relief for Violation of the Regulatory Firewall, 22 C.F.R. § 531.3 187. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein.
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188. The Broadcasting Board unanimously adopted the Firewall Regulation to protect the professional independence and integrity of its journalists and their reporting. See 22 C.F.R. § 531.3(a). This regulatory firewall remains in place today. The regulatory firewall exists between the news divisions of USAGM networks, everyone else in the organization, and the Executive Branch of the U.S. Government. 22 C.F.R. § 531.3(b). “The firewall is critical to ensuring that the editors, reporters, and other journalists of the USAGM network make the decisions on what stories to cover and how they are covered, and that those decisions are ultimately governed by the highest standards of professional journalism.” 22 C.F.R. § 531.3(d).
189. The Firewall Regulation is violated when any person within the Executive Branch or within USAGM but outside of its news divisions “attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks including their leadership, officers, employees, or staff, in the performance of their journalistic and broadcasting duties and activities. It is also violated when someone inside the newsroom acts in furtherance of or pursuant to such impermissible influence.” 22 C.F.R. § 531.3(c). The firewall also limits Defendants’ “direction and oversight” to those activities “that those in equivalent leadership positions in an organization overseeing other reputable news organizations may provide, in a manner consistent with the highest standards of professional journalism.” 22 C.F.R. § 531.3(e)(3).
190. Defendants have egregiously, aggressively, and unabashedly violated the firewall by interfering with the manner in which Voice of America covers editorials, demanding that reporters at Voice of America justify individual decisions concerning coverage, attempting to infiltrate internal journalistic discussions concerning coverage of the 2020 presidential election, and investigating editorial decisions, among other misdeeds. Defendants have chilled news
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coverage, caused the killing of valuable news stories, interfered in journalistic personnel decisions, removed the guardians of the firewall that exists to protect the journalism at the USAGM networks, and engaged in a pattern and practice of investigative harassment and intimidation. Defendants’ actions have impacted the content of Plaintiffs’ coverage, violating the integrity of the journalistic process that is key to the mission of the USAGM and the promise of the statutory firewall. Defendants’ actions have actually chilled coverage, which has resulted in critical news stories being killed for fear that they will lead to retaliation, which in turn impacts and influences news coverage. Defendants’ conduct includes actions that no one “in equivalent leadership positions in an organization overseeing other reputable news organizations” would take. Defendants’ conduct breaches the regulatory firewall, ignoring Plaintiffs’ professional independence and integrity and preventing Plaintiffs from operating within the highest professional standards of broadcast journalism.
191. Defendants’ misconduct risks the reputation and credibility of Plaintiffs and all USAGM networks, harming journalists and Plaintiffs as employees of USAGM and the networks, chilling protected journalistic activity, and limiting all stakeholders’ futures. Defendants’ conduct has resulted in the killing of important news stories and changed editorial decisions—Defendants have also directly risked Plaintiffs’ livelihoods and future careers, smearing them as incompetent or, worse, as spies.
192. As a result of Defendants’ actions, Plaintiffs have suffered and continue to suffer irreparable harm.
SIXTH CAUSE OF ACTION Ultra Vires Actions in Excess of Statutory Authority 193. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein.
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194. As described above, numerous instances of Defendants’ conduct have constituted violations of the statutory firewall governing USAGM’s management of the USAGM broadcasting services as set forth at 22 U.S.C. § 6202 and § 6204(b).
195. Executive branch agencies and officials such as Defendants may only exercise power granted by Congress or delegated by the President.
196. Defendants’ firewall violations constitute ultra vires actions in excess of their delegated authority, and Defendant Pack’s actions violate the statutory command that he “respect the professional independence and integrity” of USAGM and its broadcasting services and grantees.
197. As a result of Defendants’ ultra vires actions, Plaintiffs have suffered and continue to suffer irreparable harm.
SEVENTH CAUSE OF ACTION Breach of Fiduciary Duties and Statutory Take Care Clause, 22 U.S.C. § 6204(b)
(Against Chief Executive Officer Michael Pack) 198. Plaintiffs repeat, reallege, and incorporate the allegations in the paragraphs above as though fully set forth herein. 199. As Chief Executive Officer of USAGM, Michael Pack owes a fiduciary duty to USAGM and its associated entities. To that end, Congress included a take care clause in the statute establishing the office of Chief Executive Officer, which requires that the Chief Executive Officer “respect the professional independence and integrity of the Board, its broadcasting services, and the grantees of the Board.” 22 U.S.C. § 6204(b). 200. Michael Pack has breached his fiduciary duties and violated the statutory take care clause through his gross mismanagement of USAGM and its networks. Pack’s actions, including strangling the entities of funds, failing to complete even ministerial duties, ignoring essential contracting needs, and other misdeeds, have prevented USAGM from accomplishing its
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objective of providing consistently reliable and authoritative, accurate, objective, and comprehensive news and information. Defendants have also actively breached their fiduciary duties and the take care clause by engaging in unsafe COVID-19 practices, requiring even those with serious health conditions to come into the office, and failing to take preventative actions like wearing protective masks and engaging in social distancing.
201. As a result of Defendants’ actions, Plaintiffs, as employees of and stakeholders in USAGM and its networks, have suffered and continue to suffer irreparable harm.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court enter each of the following forms of relief: a. A preliminary and permanent injunction, that:
i. Enjoins Defendants from violating the First Amendment, and the statutory and regulatory firewall;
ii. Enjoining the putative “repeal” of the Firewall Regulation from taking effect; iii. Enjoins Defendants from retaliating against Plaintiffs and any journalists or
employees of USAGM, Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Company for attempting to protect the firewall, for participating in this action, or for otherwise attempting to exercise their First Amendment rights; iv. Prohibits Defendants from discriminating against Plaintiffs and any journalists or employees of USAGM, Voice of America, Radio Free Asia, Radio Free
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Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks on the basis of their perceived viewpoint; v. Requires Defendants to reinstate Steve Springer as Standards Editor of Voice of America or to permit Voice of America to hire the Standards Editor of the Voice of America leadership’s choice; vi. Enjoins Defendants from hiring, firing, or otherwise interfering with journalistic personnel decisions at Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks, Inc.; vii. Enjoins Defendants from conducting any and all investigations into potential lapses of journalistic standards and ethics at Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks, or from directing, pressuring, coercing, threatening, interfering with, or otherwise impermissibly interfering with such investigations, except pursuant to the Procedures for Editorial Lapse; viii. Enjoins Defendants from attending or seeking to attend newsroom meetings, from speaking to journalists or leadership (except the appointed Directors or Presidents) of Voice of America, Radio Free Asia, Radio Free Europe/Radio Liberty, the Office of Cuba Broadcasting, or the Middle East Broadcasting Networks about editorial decisions, journalistic standards, or coverage decisions;
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ix. Enjoins any enforcement of USAGM’s conflict of interest policy, imposed on October 4, 2020, which is overbroad and vague, and confers upon USAGM unfettered discretion to suppress speech;
x. Requires Michael Pack to fulfill his ministerial duty of signing J-1 visa sponsorship requests, allowing Voice of America to hire or retain needed journalists or in the alternative requiring Pack immediately to publish meaningful, written standards that govern his review of any purported discretion used to determine whether to sign J-1 visa forms;
xi. Establishes an independent monitor to ensure Defendants’ compliance with this Court’s order, the First Amendment, and the statutory and regulatory firewall;
b. A declaration that Defendants’ conduct as alleged herein violated the First Amendment;
c. A declaration that Defendants’ conduct as alleged herein violates the statutory and regulatory firewalls that surround USAGM networks; and
d. An order granting Plaintiffs costs, fees, and disbursements incurred in connection with these proceedings and such further relief as this Court deems just and proper. JURY DEMAND
Plaintiffs hereby demand a jury trial as to all matter properly triable by jury.

Dated: November 4, 2020

Respectfully submitted,
GIBSON, DUNN & CRUTCHER LLP
/s/ Theodore J. Boutrous, Jr. _________
Theodore J. Boutrous, Jr. (D.C. Bar No. 420440) 333 South Grand Avenue

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Los Angeles, California 90071 (213) 229-7000 tboutrous@gibsondunn.com Mylan L. Denerstein (admitted pro hac vice) Zainab Ahmad (D.D.C. Bar No. NY0345) Lee R. Crain (D.D.C. Bar No. NY0337) Alexandra Grossbaum (admitted pro hac vice) Lauren Kole (admitted pro hac vice) 200 Park Avenue New York, New York 10166-0193 Tel: 212.351.4000 MDenerstein@gibsondunn.com Zahmad@gibsondunn.com LCrain@gibsondunn.com AGrossbaum@gibsondunn.com LKole@gibsondunn.com Joshua S. Lipshutz (D.C. Bar No. 1033391) GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, DC 20036-5306 (202) 955-8500 JLipshutz@gibsondunn.com Counsel for Plaintiffs
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRANT TURNER, et al., Plaintiffs, v.
U.S. AGENCY FOR GLOBAL MEDIA, et al.,
Defendants.

Civil Action No. 20-2885 (BAH) Chief Judge Beryl A. Howell

ORDER Upon consideration of plaintiffs’ pending Motion for a Preliminary Injunction, ECF No. 12; the memoranda in support and opposition, and the exhibits thereto; the arguments presented at the hearing held on November 5, 2020; and the full record herein, it is hereby: ORDERED that plaintiffs’ Motion for a Preliminary Injunction is GRANTED IN PART AND DENIED IN PART; and it is further ORDERED that defendants shall be PRELIMINARILY ENJOINED from making or interfering with personnel decisions with respect to individual editorial or journalistic employees at Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, the Office of Cuba Broadcasting, and the Middle East Broadcasting Networks; and it is further ORDERED that defendants shall be PRELIMINARILY ENJOINED from directly communicating with editors and journalists, aside from the appointed Presidents and Directors of Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, the Office of Cuba Broadcasting, and the Middle East Broadcasting Networks, regarding journalistic or editorial matters without the consent of the President or Director of the network at which the particular editor or journalist is employed; and it is further

Case 1:20-cv-02885-BAH Document 44 Filed 11/20/20 Page 2 of 2
ORDERED that defendants shall be PRELIMINARILY ENJOINED from conducting any and all investigations into journalistic content, individual editors or journalists, or alleged editorial lapses or breaches of journalistic ethics at Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, the Office of Cuba Broadcasting, and the Middle East Broadcasting Networks, except as provided in the USAGM Procedures for Violations of the Principles, Standards, or Journalistic Code of Ethics, ECF No. 12-23.
Date: November 20, 2020
__________________________ BERYL A. HOWELL Chief Judge

 
 Case 1:20-cv-02885-BAH Document 45 Filed 11/20/20 Page 1 of 76

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRANT TURNER, et al., Plaintiffs, v.
U.S. AGENCY FOR GLOBAL MEDIA, et al.,
Defendants.

Civil Action No. 20-2885 (BAH) Chief Judge Beryl A. Howell

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,” 22 U.S.C. § 6202(c), by “serv[ing] as a consistently reliable and authoritative source of news” that is “accurate, objective, and comprehensive,” id. § 6202(c)(1); see also id. § 6202(b)(1). VOA, joined over time by Radio Free Europe/Radio Liberty (“RFE/RL”), Radio Free Asia, the Office of Cuba Broadcasting, and the Middle East Broadcasting Networks, through their efforts to “present a balanced and comprehensive projection of significant American thought and institutions” that “represent[s] America, not any single segment of American society,” id. § 6202(c)(2); see also id. § 6202(b)(2), have exported the cardinal American values of free speech, freedom of the press, and open debate to the dark corners of the world where independent, objective coverage of current events is otherwise unavailable.

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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 staterun 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.” 22 U.S.C. § 6202(c)(3); see also id. § 6202(b)(3). In light of this obligation, these outlets are not intended to promote uncritically the political views and aspirations of a single U.S. official, even if that official is the U.S. President. To the contrary, their mission of pursuing and producing objective journalism applies just as forcefully to their coverage of the U.S. government and its officials.
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
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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, U.S. Const. amend. I, the United States International Broadcasting Act of 1994 (“IBA”), as amended, 22 U.S.C. §§ 6201–16, the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq., and Pack’s fiduciary duties to USAGM as its CEO, and exceed Pack’s statutory authority, through their disregard for the statutory and regulatory “firewall” intended to protect the USAGM networks from Executive branch interference in their daily operations and journalistic endeavors. Am. Compl. ¶¶ 159–201, ECF No. 36. Plaintiffs seek an order preliminarily enjoining defendants’ “unlawful and unconstitutional conduct.” Pls.’ Mot. Prelim. Inj. (“Pls.’ Mot.”) at 1, ECF No. 12; see also Proposed Order, ECF No. 43-3. Defendants, for their part, counter that the
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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”), 5 U.S.C. §§ 1101 et seq. On the merits, they contend that 2016 amendments to the IBA allow Pack, as USAGM’s CEO, to reform and restructure the operations of the agency and its networks, while limitations on the First Amendment rights of government employees prevent plaintiffs from pursuing their constitutional claims. See generally Defs.’ Opp’n Pls.’ Mot. Prelim. Inj. (“Defs.’ Opp’n”), ECF No. 27; Defs.’ Suppl. Mem. Opp’n Pls.’ Mot. Prelim. Inj. (“Defs.’ Suppl. Mem.”), ECF No. 42.
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,” 22 U.S.C. § 6201(1), and to advance “the goals of United States foreign policy,” id. § 6201(4); see also OTF, 2020 WL 3605935, at *2; Decl. of Lee R. Crain (“Crain Decl.”), Ex. 6, VOA Through the Years, VOA PUBLIC RELATIONS (Apr. 3, 2017), ECF No. 12-8; Crain Decl., Ex. 7, MATTHEW C. WEED, CONG. RSCH. SERV., R43521, U.S. INTERNATIONAL BROADCASTING: BACKGROUND
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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 into house organs for the United States Government was seen as inimical to [their] fundamental mission.” Ralis, 770 F.2d at 1125. Accordingly, beginning in the 1970s, Congress has codified (and revised) in statute structures meant to guarantee this independence while guiding the scope of the coverage and providing for sufficient but cabined Executive branch oversight.
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 of 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
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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. 93510, 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

1

For example, in 1982, Congress amended the BIB Act to merge the board of the now-consolidated RFE/RL

and BIB. Board for International Broadcasting Authorization Act, Fiscal Years 1982 and 1983, Pub. L. No. 97-241,

tit. IV, § 403(a), 96 Stat. 296 (1982). This change was intended “to strengthen” BIB’s “oversight authority over the

operations of Radio Free Europe/Radio Liberty” and “clearly authorize[]” BIB “to make the major policy and

personnel decisions (without, however, becoming involved in daily RFE/RL management).” S. Rep. No. 97-71, at

31 (1981). Likewise, in 1985, Congress made explicit that “RFE/RL, Incorporated is responsible for its own

management and for daily broadcasts,” while BIB, “in an effort to preserve or enhance its ability to properly oversee

the operations of RFE/RL, Incorporated, must avoid even the appearance of involvement in daily operational

decisions and management of RFE/RL, Incorporated.” Act of Aug. 16, 1985, Pub. L. No. 99-93, tit. III, § 304(a)(5),

(8), 99 Stat. 405 (1985).

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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 22 U.S.C. §§ 6201–16), which repealed and replaced the BIB Act, id. § 310(e). The IBA declared that “it is the policy of the United States to promote 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,’ in accordance with Article 19 of the Universal Declaration of Human Rights,” id. § 302(1), a statement which remains the policy behind U.S. international broadcasting activities to this day, see 22 U.S.C. § 6201(1). To achieve Congress’s goal of streamlining international broadcasting, the IBA brought all U.S.–funded, non-military broadcasting activities under the umbrella of the United States Information Agency (“USIA”). IBA § 304(a). Congress abolished BIB, and, in its place, “established . . . a Broadcasting Board of Governors [(‘BBG’)]” within USIA, id. § 304(a), to consist of “eight presidentially appointed, [S]enate-confirmed governors, ‘no more than four of whom [could] be from the same political party,’ and . . . the Secretary of State, who ‘serve[d] as the ninth voting member ex officio,’” OTF, 2020 WL 3605935, at *2 (quoting CRS INT’L BROADCASTING REP. 5). The BBG was charged with oversight of “all broadcasting activities” under the IBA, including VOA, RFE/RL, and the other U.S. government–funded international broadcasting networks. IBA § 305(a)(1). 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
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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); 22 U.S.C. § 6202(a)(1); “shall . . . be consistent with the international telecommunications policies . . . of the United States,” IBA § 303(a)(2); 22 U.S.C. § 6202(a)(2); and “shall include” “a balanced and comprehensive projection of United States thought and institutions,” IBA § 303(b)(2); 22 U.S.C. § 6202(b)(2), (c)(2), and “clear and effective presentation of the policies of the United States Government and responsible discussion and opinion on those policies,” IBA § 303(b)(3); 22 U.S.C. § 6202(b)(3), (c)(3).3 Further, VOA and the networks “shall” “not duplicate the activities of private United States broadcasters” or “government supported broadcasting entities of other democratic nations.” IBA § 303(a)(3), (4); 22 U.S.C. § 6202(a)(3), (4).
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 in accordance with the highest professional standards of broadcast journalism,” IBA § 303(a)(5); 22 U.S.C. § 6202(a)(5), and deliver “news which is consistently reliable and authoritative, accurate, objective, and comprehensive,” IBA § 303(b)(1); 22 U.S.C. § 6202(b)(1); see also 22 U.S.C.

2

Notably, the IBA’s explication of the BBG’s powers omitted the express restrictions on Board interference

in the day-to-day management of the services that the 1985 amendments had added to the BIB Act. See IBA § 305.

3

Later additions to the standards and principles provide, for example, that VOA and the networks “shall”

“promote” democratic values, such as “respect for human rights, including freedom of religion,” 22 U.S.C.

§ 6202(a)(8), and call for “editorials, broadcast by the Voice of America, which present the views of the United

States Government,” id. § 6202(b)(3).

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§ 6202(c). 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, 22 U.S.C. § 6203, and reducing the Board to an advisory role, id. § 6205. The CEO inherited the powers previously exercised by the BBG and gained certain additional powers. See id. § 6204(a)(1)–(22). As a result, the CEO, acting alone, may now “direct and

4

In 1998, Congress passed the Foreign Affairs Agencies Consolidation Act of 1998, Pub. L. No. 105-277,

div. G, tit. XI–XIII, 112 Stat. 2681 (1998), which, among other efforts to reform American foreign policy

infrastructure in the aftermath of the Cold War, abolished USIA, id. § 1311, and preserved the BBG as an

independent agency, id. § 1312(b).

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supervise all broadcasting activities,” id. § 6204(a)(1), “assess the quality, effectiveness, and professional integrity” of network activities, id. § 6204(a)(2), “ensure” broadcast activities are consistent with statutory standards and principles, id. § 6204(a)(3), (b)(2), and “appoint such personnel for the [CEO] as the [CEO] may determine to be necessary,” id. § 6204(a)(11). The statutory firewall, requiring “respect [for] the professional independence and integrity of the Board, its broadcasting services, and the grantees of the Board,” remains in place, however, as a limit on the CEO’s exercise of his other statutory authorities, id. § 6204(b), consistent with the continuing statutory mandate that U.S.–funded international broadcasting “be conducted in accordance with the highest professional standards of broadcast journalism,” id. § 6202(a)(5). On December 23, 2016, President Obama signed the NDAA, and its amendments to the IBA, into law. OTF, 2020 WL 3605935, at *3.
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 Rule].5 On October 26, 2020, two weeks after plaintiffs initiated the instant litigation and fifty minutes before defendants filed their Opposition, USAGM rescinded the Firewall Rule, see generally Decl. of Michael Knapp (“Knapp Decl.”), Ex. 1, USAGM Final Rule, Oct. 26, 2020 (“Firewall Rule Rescission”), ECF No. 27-2; see also Suppl. Decl. of Lee R. Crain (“Suppl. Crain Decl.”) ¶ 2, ECF No. 30-1; Suppl. Crain Decl., Ex. 1, Background on Rescinding a So-Called “Firewall Rule,” U.S. Agency for Global Media (Oct. 26, 2020), ECF No. 30-2, on the grounds that the regulation inhibited the CEO’s performance of his statutory duties, stood in

5

In 2018, the agency changed its name from the “Board of Broadcasting Governors” (“BBG”) to the “United

States Agency for Global Media” (“USAGM”). OTF, 2020 WL 3605935, at *3 (citing Firewall Rule, 85 Fed. Reg.

at 36,150 n.1).

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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.

6

On August 25 and 26, 2020, at least some of the original plaintiffs were transitioned from administrative

leave to investigative leave, pending the completion of new security investigations. See Defs.’ Opp’n at 1; Turner

Decl. ¶ 10; Powers Decl. ¶ 35. Plaintiffs are contesting the charges related to their security clearances and

employment status, which are not at issue in this litigation, in separate proceedings before the U.S. Office of Special

Counsel. See Whistleblower Compls.

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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 undermine the networks’ independence, in direct conflict with the statutory and regulatory firewall.” Pls.’ Mem. P. & A. Supp. Pls.’ Mot. Prelim. Inj. (“Pls.’ Mem.”) at 9, ECF No. 12-1. Plaintiffs challenge these actions by Pack and his co-defendants as breaches of the IBA’s statutory firewall, the regulatory firewall created by the now-defunct Firewall Rule, and the First Amendment. See Am. Compl. ¶¶ 159–201. Essentially, plaintiffs ask the Court to draw a line between statutorily and constitutionally permissible oversight of VOA and the networks by USAGM’s CEO and impermissible efforts by Pack and his allies to exercise control that, in plaintiffs’ view, illegally and unconstitutionally interferes with VOA and the networks’ journalistic independence and integrity. Thus, brief description of the particular actions taken by defendants that plaintiffs believe cross this line follows.7
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

7

For the purposes of this motion, defendants do not dispute plaintiffs’ account of the facts underlying these

events. Transcript of Hearing (Nov. 5, 2020) (“Hr’g Tr.”) at 53:7–14, ECF No. 39.

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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,
13

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under which the CEO played a purely ministerial role in approving paperwork for journalists selected by one of the networks, see Bennett Decl. ¶ 26; Decl. of Sandra Sugawara (“Sugawara Decl.”) ¶ 20, ECF No. 12-69; Turner Decl. ¶¶ 31–32; Roe Decl. ¶ 20, with a model under which he will review visa applications on a case-by-case basis, Am. Compl. ¶ 74; Roe Decl. ¶ 19; Decl. of John Coe (“Coe Decl.”) ¶ 13, ECF No. 12-62.
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).
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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 AmericanMuslim nonprofit organization” without providing any context, id. ¶ 85; Turner Decl. ¶¶ 29–30; Bennett Decl. ¶¶ 32–33; Roe Decl. ¶¶ 10–15. Dewey, along with co-defendants Diane Cullo and Emily Newman, interviewed reporters at the service, sought lists of individuals involved in producing the video, and requested access to internal documents related to VOA’s review of the video. Am. Compl. ¶ 87. The investigation culminated in the placement of the Urdu service’s digital managing editor on administrative leave and the termination of four VOA contractors. Id. ¶ 88; Turner Decl. ¶¶ 28–30; Bennett Decl. ¶¶ 32–33; Roe Decl. ¶¶ 10–15. In contrast,

8

As the document docketed at ECF No. 12-24 notes, plaintiffs submitted this audio exhibit to the Court via

flash drive.

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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

9

As the documents docketed at ECF Nos. 12-25 and 12-26 note, plaintiffs submitted these video exhibits to

the Court via flash drive.

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Case 1:20-cv-02885-BAH Document 45 Filed 11/20/20 Page 17 of 76
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 VOA’s central newsroom has decided to abandon stories it would otherwise pursue out of fear of reprisal by defendants, Powers Decl. ¶ 27; Doe Decl. ¶¶ 17–19; Roe Decl. ¶¶ 25–26.
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
17

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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
18

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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 . . . for . . . attempting to educate the new CEO on avoiding legal violations, as well as guiding him on the firewall that protects VOA’s legally mandated editorial independence,” id. at 1. Though intended as a private communication, this letter was leaked to the media, Am. Compl. ¶ 103, and was the subject of public reporting by NPR, among other news outlets, see, e.g., Crain Decl., Ex. 26, Tr. of All Things Considered, Voice of America Journalists Protest Trump Appointees’ Actions, NPR (Sept. 1, 2020, 7:06 PM), ECF No. 12-28.
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
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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
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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 leadership . . . must recuse themselves from reporting on the Department and the part of the Administration implicated by the criticism”; and a journalist who “expresses personal views on political topics,” for example, by liking “a comment or political cartoon that aggressively attacks or disparages the President[,] must recuse themselves from covering the President.” Id. at 2–3. Plaintiffs interpret the policy as a whole, which fails to define a covered “personal interest,” “aggressive attack,” or “aggressive disparagement,” see id., as a blatant attempt to confer discretion to identify conflicts on USAGM management and to “signal[] that ‘attacks’ on (i.e., critical coverage of) the President are plainly out of bounds,” Am. Compl. ¶ 108.
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
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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 APA (Count I), the First Amendment (Count III), the IBA (Count IV), the Firewall Rule (Count V), and Pack’s fiduciary duties to USAGM as its CEO (Count VII), the Amended Complaint includes two new claims, challenging the rescission of the Firewall Rule under the APA (Count

10

On October 22, 2020, amici Reporters Committee for Freedom of the Press and sixteen media

organizations submitted a brief in support of plaintiffs’ motion. Br. Reporters Comm. Freedom of the Press & 16

Media Orgs. as Amici Curiae Supporting Pls.’ Mot. Prelim. Inj. (“Reporters’ Comm. Br.”), ECF No. 26. On

November 3, 2020, amicus Congressman Eliot Engel, Chairman of the House of Representatives Committee on

Foreign Affairs, also filed a brief in support of plaintiffs. Br. Congressman Eliot Engel as Amicus Curiae Supp.

Pls.’ Mot. Prelim. Inj. (“Engel Br.”), ECF No. 38.

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II) and defendants’ alleged violations of the statutory firewall as ultra vires (Count VI). Id. Plaintiffs also filed a Notice of Joinder, indicating that Chao was joining plaintiffs’ motion for preliminary relief. See Notice of Joinder Pl. Kelu Chao Pls.’ Mot. Prelim. Inj. (“Notice of Joinder”), ECF No. 37. Following a hearing on November 5, 2020, see Min. Entry (Nov. 5, 2020), the parties submitted supplemental briefing, see Defs.’ Suppl. Mem.; Pls.’ Suppl. Mem. P. & A. Supp. Pls.’ Mot. Prelim. Inj. (“Pls.’ Suppl. Mem.”), ECF No. 43, which was completed by November 12, 2020. Plaintiffs’ motion for a preliminary injunction is now ripe for resolution. 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

11

The D.C. Circuit has previously followed a “sliding scale” approach to evaluating preliminary injunctions,

but that approach is likely inconsistent with Winter, see Archdiocese of Wash. v. Wash. Metro. Area. Transit Auth.,

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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
897 F.3d 314, 334 (D.C. Cir. 2018) (observing that Winter may be “properly read to suggest a ‘sliding scale’ approach to weighing the four factors be abandoned”); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring) (noting that “this Circuit’s traditional sliding-scale approach to preliminary injunctions may be difficult to square with the Supreme Court’s recent decisions in” Winter and Munaf), and therefore will not be employed here, see OTF, 2020 WL 3605935, at *4 n.6; Singh v. Carter, 185 F. Supp. 3d 11, 16–17 (D.D.C. 2016).
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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
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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 the exercise of jurisdiction, albeit as to only one of plaintiffs’ claims.
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

12

The Supreme Court has observed that “[t]he limitations on third-party standing” may go to the merits of a

plaintiff’s claim, rather than the court’s jurisdiction. Lexmark Int’l, Inc. v. Static Control Components, Inc., 572

U.S. 118, 127 n.3 (2014); see also Defs.’ Opp’n at 10 (describing third-party standing as “expand[ing] the scope of

arguments available to a plaintiff pursuing his own claim”). The Court, however, left “consideration of that

doctrine’s proper place in the standing firmament” to “another day.” Lexmark Int’l, Inc., 572 U.S. at 127 n.3. This

Court, therefore, remains bound by the D.C. Circuit’s rule that third-party standing is a threshold, jurisdictional

issue. See, e.g., In re Hope 7 Monroe St. Ltd. P’ship, 743 F.3d 867, 871 (D.C. Cir. 2014); Deutsche Bank Nat’l Tr.

Co. v. FDIC, 717 F.3d 189, 194 n.4 (D.C. Cir. 2013) (“Prudential standing, like Article III standing, is a threshold,

jurisdictional concept.” (citing Steffan v. Perry, 41 F.3d 677, 697 (D.C. Cir. 1994) (en banc))).

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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 any one of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010). Plaintiffs carry the burden of establishing the elements of standing “with the manner and degree of evidence required at the successive stages of litigation.” Lujan, 504 U.S. at 561. “In the context of a preliminary injunction motion,” plaintiffs must “‘show a substantial likelihood of standing under the heightened standard for evaluating a motion for summary judgment.’” Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371, 377 (D.C. Cir. 2017) (quoting Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 912–13 (D.C. Cir. 2015)). “Thus, the plaintiff[s] cannot ‘rest on . . . mere allegations, but must set forth by affidavit or other evidence specific facts’ that,

13

Plaintiffs’ assertion of third-party standing does not excuse their burden to establish that they have Article

III standing in their own right. See Craig v. Boren, 429 U.S. 190, 193–95 (1976); LaRoque, 650 F.3d at 781 (noting

that the third-party standing doctrine presents a further limitation on plaintiffs “[i]n addition to the[] minimum

constitutional requirements” of Article III standing); Lepelletier v. FDIC, 164 F.3d 37, 42 (D.C. Cir. 1999)

(“Because [the appellant] seeks to raise the rights of third parties . . . he must show that he has standing under

Article III, and that he satisfies third party, or jus tertii, standing requirements.”). As explained infra Part

III.A.1.a.ii, the third-party standing doctrine requires plaintiffs to demonstrate, in addition to their own Article III

standing, 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. These factors supplement, rather than supplant, the

traditional Article III inquiry.

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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 Accordingly, the analysis that

14

Plaintiffs argue that the original five plaintiffs (Turner, Lennon, Walsh, Powers, and Tran), who are

employed directly by USAGM, rather than an international broadcasting network, have Article III standing on the

basis of economic harm and reputational harm. Pls.’ Mem. at 17 (citing Whitman-Walker Clinic, Inc. v. U.S. Dep’t

of Health & Hum. Servs., Civ. No. 20-1630 (JEB), 2020 WL 523076, at *21 (D.D.C. Sept. 2, 2020)); see also Pls.’

Reply at 3–6 (describing “damage to [plaintiffs’] own political and professional reputations,” id. at 5). Although

“[e]conomic harm . . . clearly constitutes an injury-in-fact,” Carpenters Indus. Council, 854 F.3d at 5, plaintiffs offer

no “affidavit or other evidence” to substantiate their claim of monetary injury and therefore have not carried their

burden regarding that alleged injury, Elec. Privacy Info. Ctr., 878 F.3d at 377 (quoting Lujan, 504 U.S. at 561).

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.

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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, 968 F.3d at 762; 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))).
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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 and protecting honest reporting could cost [their] livelihood[s],” id. ¶ 26.15
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,

15

Plaintiffs’ Notice of Joinder argues that Chao also suffered injury in fact from the impact of defendants’

actions on “‘[VOA]’s competitive edge in multiple crowded media markets abroad,’ after Ms. Chao and her

colleagues have given so much to build and maintain VOA’s audiences.” Notice of Joinder at 2 (quoting Roe Decl.

¶ 13). This argument appears to be abandoned in their Supplemental Memorandum. See Pls.’ Suppl. Mem. at 2–5.

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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 analogous

16

Plaintiffs rely on a Ninth Circuit case for the proposition that a “chilling of First Amendment rights can

constitute a cognizable injury” standing alone. Pls.’ Suppl. Mem. at 4 (quoting Index Newspapers LLC v. U.S.

Marshals Serv., 977 F.3d 817, 826 (9th Cir. 2020)). The D.C. Circuit has not adopted this rule. See Woodhull

Freedom Found. v. United States, 948 F.3d 363, 371 (D.C. Cir. 2020) (“[A] plaintiff must still demonstrate more

than a subjective chill to establish an injury-in-fact[.]” (citing Seegars, 396 F.3d at 1252; Am. Library Ass’n, 956

F.2d at 1194)).

17

The rule of Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013), maintaining that an allegation of chilled

speech is not cognizable absent “certainly impending” government action against a plaintiff, id. at 417–18, on which

defendants rely, see Defs.’ Suppl. Mem. at 12, is inapposite. Clapper concerned the chilling effect of a statute

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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.
allowing for government surveillance of certain communications on the speech of plaintiffs who believed that their future communications might be targeted. See 568 U.S. at 406–07. Plaintiffs alleged injury in fact not because their intended speech would violate the statute in question, but rather because the possibility of the statute being applied to surveil their lawful speech would deter them from engaging in such speech. Faced with this attenuated chain between the plaintiffs’ intended First Amendment activity and the potential harm, the Court required that any cognizable injury be “certainly impending.” See id. at 417–18. In contrast, when plaintiffs’ own intended First Amendment activities would run afoul of a potentially unconstitutional policy, the enforcement of which would directly cause injury, the Supreme Court has made clear that the more lenient “sufficiently imminent” standard applies. See SBA List, 573 U.S. at 159.
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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 statements of his intent to “drain the swamp” as applying to VOA, see supra Part I.B.3, support a strong inference that defendants would not hesitate to move against Chao should she violate defendants’ restrictions on First Amendment expression at Pack’s USAGM. Chao has stated cognizable injuries in fact to her First Amendment rights.
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;
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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 thirdparty 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
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(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 the same statutory restrictions, mandates, and principles as their VOA counterparts. Moreover, as explained supra Part I.B, defendants’ allegedly illegal actions have transpired within not only VOA but the other networks as well. Chao thus shares with both VOA and network journalists an “interest in enforcing the firewall, protecting the independence and credibility of the networks’ reporting, upholding the First Amendment, and sparing USAGM from [d]efendants’ gross mismanagement.” Pls.’ Reply at 6. Given her decades-long career at VOA, see Am. Compl. ¶¶ 22–23, and broad responsibility for implementation of the journalistic principles disputed in this litigation, see Second Chao Decl.¶ 3, Chao is without doubt among “the most effective advocate[s] of the rights at issue,’” LaRoque, 650 F.3d at 781–82 (quoting Duke Power Co., 438 U.S. at 80).
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.
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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).
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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. Though they are correct about the former, they are wrong about the latter.
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.), cert. denied, 558 U.S. 989 (2009), an employee may appeal a major adverse employment action, for example, termination or demotion, see 5 U.S.C. § 7512, to the Merit Systems Protection Board (“MSPB”), id. § 7513(d). If she does not prevail before the MSPB, the employee may pursue judicial review of her claims in the Federal Circuit. Id. § 7703. An employee cannot, however, directly challenge more minor adverse employment actions before the MSPB. The CSRA instead provides that, to challenge these less significant “personnel actions,” the implementation of which constitute “prohibited personnel practices,” see id. § 2302(a), (b), an employee must file a complaint in the U.S. Office of Special Counsel (“OSC”), id. § 1214(a)(1)(A). OSC then investigates the complaint “to determine whether there are reasonable grounds” to believe a violation of the statute has occurred. Id. § 1214(b)(2)(A). If OSC determines that such grounds exist, it “shall report the determination together with any findings or recommendations” to the MSPB and the agency. Id. § 1214(b)(2)(B). If the agency does not comply with OSC’s recommendations or otherwise act, OSC may, but is not required to, petition the MSPB for an order requiring the agency to take corrective action. Id. § 1214(b)(2)(C). Though an employee can appeal an adverse final determination by the MSPB
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to the Federal Circuit, see id. §§ 1214(c), 7703(b), the CSRA does not grant the employee any further administrative or judicial review if OSC declines to petition the MSPB.
Most relevant here, “personnel actions” that fall within OSC’s purview include “any . . . significant change[s] in duties, responsibilities, or working conditions.” Id. § 2302(a)(2)(A)(xii). The CSRA enumerates thirteen circumstances under which personnel actions become “prohibited personnel practices,” which must be brought before OSC in the first instance. Id. § 2302(b). One of those thirteen “prohibited personnel practices” occurs when a “personnel action” violates “any law, rule, or regulation implementing, or directly concerning, the merit system principles” listed in the statute. Id. § 2302(b)(12). These principles require, in relevant part, “proper regard for [employees’] constitutional rights.” Id. § 2301(b)(2). Consequently, personnel actions that implicate violations of constitutional rights, including alleged violations of the First Amendment, are therefore prohibited personnel practices that generally fall within the CSRA’s exclusive remedial scheme. See, e.g., Weaver v. U.S. Info. Agency, 87 F.3d 1429, 1432 (D.C. Cir. 1996) (“Among the merit system principles in § 2301 is the requirement that all employees be treated with proper regard for their privacy and constitutional rights. So it is a prohibited personnel practice to take a personnel action that unconstitutionally burdens an employee’s speech.” (internal quotations omitted)); Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574, 580 (D.C. Cir. 1994) (“[O]ur cases make clear that it is a ‘prohibited personnel practice’ to [take a personnel action against] someone because he ignored unconstitutional restrictions on his freedom of speech.”).
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
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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
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“‘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 one respect relevant here.18 The scope of preclusion depends at least in part on the nature of an aggrieved employee’s alternative cause of action. When a plaintiff seeks to circumvent the CSRA’s remedial structure through claims brought under the APA and other statutes, preclusion extends even to “type[s] of personnel action[s]” not explicitly listed in the CSRA. Mahoney, 721 F.3d at 635 (emphasis omitted) (quoting Filebark, 555 F.3d at 1013). In contrast, with respect to constitutional claims, even in cases centering on CSRA–covered actions, the Supreme Court has considered the availability of “meaningful review” in an Article III judicial forum when evaluating the scope of the CSRA’s exclusive remedial scheme, Elgin, 567 U.S. at 10, and the

18

The text of the CSRA provides a second exception, not relevant here, for “mixed cases,” that is, cases

alleging both an adverse employment action under 5 U.S.C. § 7512 that can be directly appealed to the MSPB

(bypassing OSC), see 5 U.S.C. § 7701, and discrimination prohibited by another federal statute, such as Title VII of

the Civil Rights Act of 1964 or the Age Discrimination in Employment Act of 1967. Plaintiffs may file mixed cases

in district court in the first instance. See 5 U.S.C. §§ 7702, 7703; Kloeckner, 568 U.S. at 604 (holding that “the

CSRA routes” mixed cases “to district court”).

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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 CSRA itself satisfies this requirement, because this administrative process concludes with a final decision by the MSPB that is appealable to the Federal Circuit, “an Article III court fully competent to adjudicate petitioners’ [constitutional] claims.” Elgin, 567 U.S. at 17.
For employees challenging prohibited personnel practices that OSC declines to bring before the MSPB, the CSRA does not specify a path to judicial review of constitutional claims. Congressional silence notwithstanding, this Circuit has found, and defendants do not contest, see Defs.’ Suppl. Mem. at 9, that aggrieved employees without recourse to the Federal Circuit under the CSRA may bring their constitutional claims for equitable relief in district court, see, e.g., Abdelfattah v. U.S. Dep’t of Homeland Sec., 787 F.3d 524, 534 (D.C. Cir. 2015) (observing that “the CSRA d[oes] not preclude judicial review of . . . constitutional claims altogether” because “[c]ivil servants and job applicants c[an] still ‘seek equitable relief against their supervisors, and the agency itself, in vindication of their constitutional rights’” (quoting Spagnola v. Mathis, 859 F.3d 223, 229–30 (D.C. Cir. 1988) (en banc) (per curiam))); Griffith v. Fed. Lab. Rels. Auth., 842 F.2d 487, 494–95 (D.C. Cir. 1988). Nonetheless, even for “claims arising directly under the Constitution,” the CSRA’s exhaustion requirement is a “jurisdictional prerequisite.” Weaver, 87 F.3d at 1433; see also Steadman, 918 F.2d at 967 (“When [an employee’s] statutory and constitutional claims are ‘premised on the same facts’ and the CSRA remedy ‘would have been fully effective in remedying the constitutional violation,’ exhaustion [of CSRA remedies] is mandated.” (quoting Andrade v. Lauer, 729 F.2d 1475, 1493 (D.C. Cir. 1984))).
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A narrow exception to this exhaustion rule for employees otherwise covered by the CSRA is recognized, however. An employee whose “constitutional claim raises issues totally unrelated to the CSRA procedures . . . can . . . come directly to district court” without satisfying the exhaustion requirement. Steadman, 918 F.2d at 967; see also Weaver, 87 F.3d at 1433–34 (finding that the exhaustion requirement applies only when constitutional claims “are premised on the same facts as the plaintiff’s CSRA claims and the CSRA remedy would have been fully effective in remedying the constitutional violation” (internal quotations omitted)); Andrade, 729 F.2d at 1492 (holding that exhaustion of CSRA remedies is not required when there is “complete divergence between the issues presented by the constitutional and personnel/statutory claims”). This loophole to CSRA preclusion is admittedly a narrow one, and does not excuse the exhaustion requirement for claims, that, while framed as constitutional challenges, are in truth a disguised “vehicle” to challenge CSRA–covered personnel actions or practices. Elgin, 567 U.S. at 22; see also id. at 15 (“[The CSRA’s] exclusivity does not turn on the constitutional nature of an employee’s claim, but rather on the type of employee and the challenged employment action.”); Steadman, 918 F.2d at 967 (noting that direct judicial review of constitutional claims will be available “[o]nly in the unusual case”). When it applies, however, as defendants acknowledge, see Defs.’ Suppl. Mem. at 10, the exception allows district courts to exercise subject-matter jurisdiction over constitutional claims for which plaintiffs have not exhausted their CSRA remedies. The question next addressed is whether Chao’s claims fall within this narrow exception.
ii. Application to Chao Plaintiffs concede that Chao has not filed a complaint with OSC or otherwise sought to avail herself of the CSRA’s remedial scheme. See Pls.’ Suppl. Mem. at 10–16. They argue
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instead that the CSRA “would not cover” Chao’s claims related “to the statutory firewall or statutorily protected journalistic independence or . . . ‘unlawful’ action in general,” that is, her APA (Counts I, II, and V), IBA (Counts IV and VII), and ultra vires claims (Count VI), Pls.’ Suppl. Mem. at 14, while her constitutional claim (Count III) does not challenge a change to “working conditions” within the CSRA’s meaning and therefore is not subject to the CSRA’s exhaustion requirement, Pls.’ Suppl. Mem. at 12–14.
As explained above, the CSRA plainly precludes judicial review of statutory claims by covered employees related to their employment, whether (or not) the allegations amount to a “personnel action” or “prohibited personnel practice” explicitly enumerated in the CSRA or the CSRA provides a remedy for such claims. See supra Part III.A.1.b.i; see also Nyunt, 589 F.3d at 449 (“[F]ederal employees,” such as plaintiff “an international radio broadcaster [at] [VOA],” “may not bring employment and personnel suits . . . under the APA.”); Graham v. Ashcroft, 358 F.3d 931, 934 (D.C. Cir. 2004) (“[E]mployees with judicial review rights under the CSRA may not obtain judicial review of personnel actions outside the bounds of the CSRA[.]”); Defs.’ Opp’n at 13–14. Accordingly, the Court likely lacks subject-matter jurisdiction over Counts I, II, IV, V, VI, and VII, making a likelihood of success on these claims highly doubtful for purposes of the requested preliminary injunction.
Jurisdiction, then, turns on whether Chao’s constitutional claim (Count III) is likely exempt from the CSRA’s exhaustion requirement because she does not contest the constitutionality of a covered “working condition.” Defendants argue that Chao’s “basic contention,” understood to be a claim that defendants’ actions “have affected, or might affect, the conditions of her employment or the way she does her job,” falls “squarely within the CSRA’s structure” as a “significant change in her working conditions” that allegedly violates her
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constitutional rights. Defs.’ Suppl. Mem. at 10; see also id. at 10–12; 5 U.S.C. §§ 2301(b)(2), 2302(a)(2)(A)(xii), (b)(12). Plaintiffs counter that, because Chao’s daily responsibilities have not changed, her “working conditions” have not been affected and her claim does not raise, directly or indirectly, a challenge to a “prohibited personnel practice,” Pls.’ Suppl. Mem. at 11– 12, thereby avoiding triggering CSRA coverage.
The CSRA does not define “working conditions.” Plaintiffs assert that “not every action that affects an employee is a ‘significant change’ to a ‘working condition,’” Pls.’ Suppl. Mem. at 13, while defendants assume that the term encompasses any change that “pertains directly to the employment relationship and the performance of the employee’s work,” Defs.’ Suppl. Mem. at 10. The Supreme Court, in interpreting “working conditions” in the labor-management provisions of the CSRA, has said that the term “more naturally refers, in isolation, only to the ‘circumstances’ or ‘state of affairs’ attendant to one’s performance of a job,” not to the agreedupon terms of employment. Fort Stewart Schs. v. Fed. Lab. Rels. Auth., 495 U.S. 641, 645 (1990). Likewise, the D.C. Circuit, interpreting the same provision, has found that “working conditions” as a term of art “ordinarily calls to mind the day-to-day circumstances under which an employee performs his or her job.” Dep’t of Def. Dependents Schs. v. Fed. Lab. Rels. Auth., 863 F.2d 988, 990 (1988). In other words, these courts have determined that the term “working conditions” generally refers to the daily, concrete parameters of a job, for example, hours, discrete assignments, and the provision of necessary equipment and resources.
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
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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 IBA, as described above, erect deliberate barriers between VOA and the networks, on one side, and their managers in the Executive branch, on the other, to preserve those assets, see supra Part I.A. In this sui generis environment, unique among government agencies, see Hr’g Tr. 24:6–25:4; Pls.’ Suppl. Mem. at 9, dramatic shifts in policy and practice that implicate the very constitutional rights on which U.S.–funded international broadcasting is predicated are outside the bounds of a “working condition.”
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, including from USAGM” that run the risk of “directly intrud[ing] on VOA’s professional independence and interfer[ing] with news coverage” speak to the mission and policies behind U.S.-funded international broadcasting and are governed by the statutory firewall. Id. In contrast, requests from supervisors or editors “for relevant editorial script or video changes in a story” are “part of the everyday nature of journalism” and do not implicate the firewall. Id. at 101. The latter speaks to the daily supervisor-employee relationship and is a working condition; the former implicates
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constitutional values and rights and is not. That violations of constitutional rights and other egregious offenses are frequently found to fall outside the CSRA’s defined “personnel actions,” including “working conditions,” supports this conclusion. See, e.g., Gustafson v. Adkins, 803 F.3d 883, 890 (7th Cir. 2015) (finding that supervisor’s conduct in installing covert surveillance equipment in female changing area “extends beyond the bounds of ‘personnel action,’ as defined by the CSRA”); Stewart v. Evans, 275 F.3d 1126, 1130 (D.C. Cir. 2002) (holding that claims related to a “warrantless search” of an employee’s property are not precluded by the CSRA); Brock v. United States, 64 F.3d 1421, 1424 (9th Cir. 1995) (finding that rape and sexual abuse of an employee by a supervisor was not a “working condition”).19
Chao’s constitutional claim is thus sufficiently distinct from any CSRA–covered change in “working conditions” to allow the exercise of jurisdiction even in the absence of CSRA exhaustion, as the D.C. Circuit’s decision in Weaver makes clear. In Weaver, the Circuit found that a VOA employee need not exhaust her CSRA remedies to challenge a prepublication review requirement that required her to submit “all speaking, writing, and teaching material on matters of ‘official concern’ to [her] employer[] for review.” 87 F.3d at 1431. The plaintiff failed to

19

Mahoney v. Donovan, a case in which the D.C. Circuit construed the term “working conditions” to

encompass an administrative law judge’s APA challenge to his supervisor’s method of assigning cases, the failure to

provide access to legal research resources, ex parte communications between his supervisor and a litigant appearing

before him, and the agency’s practice of providing advance notice to the Department of Justice in certain

circumstances, see 721 F.3d at 636, is not to the contrary. The ALJ’s complaints in that case concerned the

quotidian daily matters that are traditionally understood as “working conditions.” Though the court found that

actions which “affect the ability of [employees] to do their jobs efficiently and effectively” may “affect working

conditions,” id., it applied that standard only to the alleged failure to provide access to docket numbers and other

research tools. Further, the Circuit acknowledged that the last two allegations, which implicated the ALJ’s

“decisional independence,” were “less clear[ly]” working conditions within the meaning of the statute. Id. The

panel chose to interpret “working conditions” to encompass interference with an ALJ’s decisional independence

primarily because that interpretation was most “consistent with the language and structure of the [CSRA].” Id. at

637. But see Ass’n of Admin. Law Judges v. Colvin, 777 F.3d 402, 405 (7th Cir. 2015) (finding that claim of

interference with ALJ’s “decisional independence” was not precluded by the CSRA where preclusion would “nullify

the express protection of such independence” in the APA, see 5 U.S.C. §§ 554(d)(2), 3105). Here, Chao claims a

constitutional basis for the editorial independence she seeks to vindicate. Mindful that “where Congress intends to

preclude judicial review of constitutional claims its intent to do so must be clear,” Webster v. Doe, 486 U.S. 592,

603 (1988), the logic of Mahoney does not control because a close call of statutory interpretation should be resolved

in a constitutional claimant’s favor.

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comply with the requirement and, as a result, was formally admonished. Id. at 1432. Her First Amendment claims related to the admonishment, a “disciplinary or corrective action” covered by the CSRA as a “personnel action,” see 5 U.S.C. § 2302(a), were precluded until she exhausted CSRA remedies. Weaver, 87 F.3d at 1433–34. Her constitutional challenge to the policy itself, however, framed as a “simple pre-enforcement attack on a regulation restricting employee speech,” id. at 1434, “s[tood] independently of the oral admonishment . . . and therefore it raise[d] no exhaustion problem,” id. at 1432. Likewise, Chao alleges that the policies and procedures introduced by defendants restrict her First Amendment rights even though her working conditions have not yet been altered. See Firenze v. NLRB, Civ. A. No. 12-10880-PBS, 2013 WL 639151, at *8 (D. Mass. Jan. 10, 2013) (finding that the CSRA did not preclude preexhaustion exercise of jurisdiction over an employee’s First Amendment challenge to a rule preventing employees from publicizing grievances at work because “the promulgation . . . of such a rule” was not a “personnel action” under the statute and “there [was] no allegation that [any other] prohibited ‘personnel action’ ha[d] taken place vis-à-vis the First Amendment claim”). Her claim is analogous to a pre-enforcement challenge to defendants’ allegedly unconstitutional interference with her First Amendment rights, distinct from and antecedent to her experiencing a covered personnel action.
The Supreme Court’s subsequent statement in Elgin that the CSRA precludes direct judicial review even of those constitutional claims that are an indirect “vehicle” to challenge personnel actions may have weakened the rule of Weaver and raised the barriers to entry into district court.20 Nonetheless, both Elgin’s and Weaver’s guidance remains particularly

20

At least one other district court has concluded that, because Elgin “clarified” the impact of the CSRA’s

preclusive effect on constitutional claims and found those claims to be precluded when they are a “vehicle” to

challenge a covered employment action, Weaver no longer “stand[s] for the proposition that [a district court] has

jurisdiction” over purely constitutional claims that do not implicate CSRA–covered actions. Nat’l Ass’n of Immigr.

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applicable in a case such as this, where Chao has not been the subject of any covered “personnel action.” Cf. Elgin, 567 U.S. at 15, 22 (emphasizing that CSRA exclusivity turns “on the type of the employee and the challenged employment action,” id. at 15, and applied to petitioners’ requested relief “to reverse the removal decisions, to return to federal employment, and to receive . . . compensation,” all of which were “precisely the type of personnel action” and “kinds of relief” subject to administrative process under the CSRA, id. at 22). The statutory text and Circuit precedent thus confirm that Chao’s constitutional claim presents the “unusual case” in which CSRA–covered working conditions and her allegations so completely diverge that exhaustion is not required.21
This question is a close one, and defendants have proffered a strong argument that, because defendants’ actions change “the way [Chao] performs her job,” they are changes to “working conditions” covered by the CSRA, subject to the jurisdictional exhaustion requirement. Defs.’ Suppl. Mem. at 10; see also id. at 10–11. At this preliminary stage, however, especially given the non-traditional nature of the potential “working conditions” at issue, the actions Chao challenges appear to fall outside the “working conditions” covered by the CSRA. She has not been the target of any other “personnel action” and therefore “raise[s] issues totally unrelated to

Judges v. McHenry, No. 1:20-cv-000731, 2020 WL 4693166, at *7 (E.D. Va. Aug. 6, 2020). That conclusion by a

district court outside this Circuit is, of course, not binding, and this Court disagrees based on a close reading of the

two cases. Moreover, the D.C. Circuit has not rejected Weaver in Elgin’s wake.

21

The Elgin majority also expressed concern that allowing constitutional claims related to CSRA–covered

actions to proceed outside the CSRA’s remedial scheme would “create the possibility of parallel litigation,”

567 U.S. at 14, and “deprive the aggrieved employee, the MSPB, and the district court of clear guidance about the

proper forum for the employee’s claims at the outset of the case,” id. at 15. Admittedly, this case could implicate

both concerns: the original five plaintiffs are in the midst of challenging their placement on administrative leave

before OSC, see Whistleblower Compls., and the line between Chao’s CSRA–exempt claims and future, potentially

CSRA–covered constitutional claims may be fuzzy. Chao herself, however, has no recourse to the CSRA remedies

at present because defendants have taken no adverse action against her, and the original plaintiffs, who are pursing

CSRA remedies, likely lack standing to bring their related claims in district court, see supra Part III.A.1.a.i.

Moreover, litigation brought in different fora by different groups of plaintiffs, each of whom can access only one

forum, does not present the threat of parallel litigation that the Supreme Court sought to discourage. Additionally,

cases such as Chao’s, in which the constitutional claim stands truly independent of a CSRA–covered action, will be

rare, minimizing the risk of confusion.

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the CSRA procedures.” Steadman, 918 F.2d at 967. That Chao’s and others’ constitutional rights hang in the balance only bolsters this conclusion.22
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 CSRA, any claims that she is precluded from bringing in her own right can advance on the contractors’ behalf. Pls.’ Suppl. Mem. at 10–11; see also Pls.’ Reply at 9. For purposes of the CSRA’s ban on “prohibited personnel practices,” the statute defines three categories of covered employees. See 5 U.S.C. § 2302(a)(2)(B). Individuals who work for the federal government in other capacities, for example, as contractors or as employees of the Legislative branch (who are excepted from the statute’s coverage), therefore cannot pursue administrative remedies under these CSRA provisions. See, e.g., Davis v. Billington, 681 F.3d 377, 384 (D.C. Cir. 2012) (finding that “none of the [chapters of the CSRA governing personnel actions] provide procedural rights or remedial measures for civil-service employees of non-Executive agencies”); Navab-Safavi v. Broad. Bd. of Governors, 650 F. Supp. 2d 40, 67 n.14 (D.D.C. 2009), aff’d sub nom. Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011) (“[B]ecause plaintiff is a

22

Even if Chao’s claims challenge covered “working conditions,” this Court would not be deprived of all

jurisdiction. Though not addressed by the parties, when a plaintiff subject to an administrative exhaustion

requirement seeks preliminary equitable relief, “[i]f the court may eventually have jurisdiction of the substantive

claim, the court’s incidental equitable jurisdiction, despite the agency’s primary jurisdiction, gives the court

authority to impose a temporary restraint in order to preserve the status quo pending ripening of the claim for

judicial review.” Wagner v. Taylor, 836 F.2d 566, 571 (D.C. Cir. 1987); see also Sampson v. Murray, 415 U.S. 51,

83 (1974); DeNovellis v. Shalala, 135 F.3d 58, 62 (1st Cir. 1998) (recognizing the availability of “injunctive relief

on claims by federal government employees that their civil service rights have been violated,” even where

administrative remedies have not been exhausted, subject to a finding of “genuinely extraordinary” irreparable

harm); Abbott v. United States, 144 F.3d 1, 5 (1st Cir. 1998) (same); Sataki v. Broad. Bd. of Governors, 733 F. Supp.

2d 22, 42 (D.D.C. 2010) (“While Plaintiff [a network journalist]’s failure to exhaust will . . . bar this Court from

deciding the merits of Plaintiff’s claims, it does not necessarily deprive the Court of jurisdiction over Plaintiff’s

Motion for a Preliminary Injunction.”); Jordan v. Evans, 355 F. Supp. 2d 72, 77 (D.D.C. 2004) (“[T]his Court is not

barred from considering [a government employee’s] claim for injunctive relief even though she may not have

exhausted her administrative remedies[.]”). If Chao were to file a complaint with OSC that OSC chose not to

present to the MSPB, she would then be able to bring her claims in this Court. See supra Part III.A.1.b.i. Even

without exhaustion of CSRA–covered claims, then, preliminary equitable relief in this Court is available to her upon

a showing of “genuinely extraordinary” irreparable harm.

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contractor and not an employee, the Civil Service Reform Act of 1978 has no application here.” (internal citation omitted)).
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 [CSRA], but rather manifestation of a considered congressional judgment that they should not have statutory entitlement to review for adverse action.” Fausto, 484 U.S. at 448–49; see also Davis, 681 F.3d at 386 (“We are satisfied that Congress omitted the subset of employees that includes [plaintiff] from the remedial protections of the CSRA . . . intentionally . . . . And . . . ‘it is where Congress has intentionally withheld a remedy that we must most refrain from providing one[.]’” (quoting Wilson v. Libby, 535 F.3d 697, 709 (D.C. Cir. 2008))); Graham, 358 F.3d at 934 (“[I]n not granting review to some employees under the CSRA for actions covered by the CSRA, Congress meant to preclude those employees from securing review under other avenues.” (emphasis in original)). As a result, both because of and despite the fact non-covered government workers lack any CSRA remedy, judicial review of claims related to CSRA–covered actions brought by such employees, other than claims for equitable relief for constitutional wrongs, is also precluded.23 Tellingly, the single case plaintiffs cite in support of the availability of judicial review for contractors involved only constitutional claims. See Navab-Safavi, 650 F. Supp. 2d at 49. Thus, USAGM contractors likely are equally unable to

23

See, e.g., Davis, 681 F.3d at 385–86 (finding that the CSRA precluded creation of a Bivens cause of action

for First and Fifth Amendment violations alleged by an employee who, because he worked for the Legislative

branch, was not covered by the CSRA, despite the unavailability of a CSRA remedy to him); Lamb v. Holder,

82 F. Supp. 3d 416, 421 (D.D.C. 2015) (“[Plaintiff] is excluded from the CSRA provisions regarding termination,

and therefore his termination is not subject to judicial review.”); Peter B. v. CIA, 620 F. Supp. 2d 58, 69 (D.D.C.

2009) (“Although CIA employees are excluded from those employees permitted to invoke the CSRA’s review

procedures, their exclusion does not leave them ‘free to pursue whatever judicial remedies [they] would have had

before enactment of the CSRA.’” (quoting Fausto, 484 U.S. at 447)).

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pursue Counts I, II, IV, V, VI, and VII. The status of their constitutional claims need not be resolved in light of the finding that Chao’s constitutional claim is not precluded by the CSRA.24
The Court therefore has subject-matter jurisdiction only over Chao’s constitutional claim (Count III). The likelihood of success on the merits of that claim are considered next.
2. First Amendment Claim Count III of the Amended Complaint, Chao’s only claim that likely survives the preclusive effect of the CSRA, seeks injunctive relief under the First Amendment. See Am. Compl. ¶¶ 173–79. Chao alleges that defendants’ actions in breach of the firewall violate the First Amendment by “unconstitutionally restraining rights under the First Amendment’s guarantees of free speech and freedom of the press”; “unconstitutionally retaliating” against journalists and editors who engage in protected First Amendment activity; “unconstitutionally discriminating based on perceived viewpoint”; and imposing a “vague and overbroad conflict of interest policy that confers on [defendants] unconstitutionally unfettered discretion to suppress speech.” Id. ¶ 174. Defendants challenge the likelihood of success of this claim on several grounds, none of which are persuasive at this juncture.
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.

24

While contractors are not “covered employees” under the CSRA, they may be subject to the exclusive

remedial scheme of the Contract Disputes Act of 1978, 41 U.S.C. §§ 601 et seq., which “established a

comprehensive framework for resolving contract disputes between executive branch agencies and government

contractors,” Menominee Indian Tribe of Wis. v. United States, 614 F.3d 519, 521 (D.C. Cir. 2010). The parties did

not address this potentially preclusive statute in their briefing or at the hearing, however. Depending on the precise

terms of the contracts and the specific allegations at issue, the contractors’ claims, both statutory and constitutional,

could fall within the Contract Disputes Act’s ambit. See, e.g., Nat’l Star Mail Route Contractors Ass’n v. U.S.

Postal Serv., 223 F. Supp. 3d 14, 33 & n.14 (D.D.C. 2016) (noting that a cause of action “on the contract,” and

therefore precluded by the Contract Disputes Act, could lie for alleged “statutory and constitutional violations”).

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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 section 702 of the APA, which provides a private cause of action for and waives sovereign immunity with respect to claims “that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority,” 5 U.S.C. § 702, forecloses any equitable cause of action. Defs.’ Opp’n at 19–20. As explained above, however, Chao’s APA claims are precluded by the CSRA. See supra Part III.A.1.b.ii; see also Fornaro, 416 F.3d at 66–67. Under defendants’ reasoning, the CSRA cuts off Chao’s APA claims and, though not themselves viable, those APA claims, in turn, cut off her ability to seek equitable relief directly under the First Amendment. Under the government’s view of the law then, Chao is left with no way to present her claims to a federal court.
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 CSRA the requisite congressional “intent to foreclose” equitable relief entirely. Armstrong, 575 U.S. at 328 (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n, 535 U.S. 635, 647 (2002)); see also supra Part III.A.1.b.i. Indeed, Elgin itself addressed the viability of petitioners’
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“constitutional claims for equitable relief.” 567 U.S. at 8. Although the Court held that such claims, at least when they present a “vehicle” through which to challenge a CSRA–covered adverse employment action, are subject to the administrative review process, id. at 22, it nowhere cast doubt on the availability to the petitioners of the equitable cause of action they pled. To the contrary, the Court determined that their equitable claims could in fact be raised during CSRA proceedings in anticipation of their eventual review by the Federal Circuit. See id. at 17. Likewise, the D.C. Circuit in Weaver, which addressed the merits of the plaintiff’s challenge to a prepublication review regulation under First Amendment, not APA, principles, see 87 F.3d at 1439–43, appears to have proceeded under precisely the cause of action Chao pleads here. Chao, too, may advance her claim for equitable relief directly under the First Amendment.
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,
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they claim, by the IBA’s firewall provisions, which “incorporate First Amendment standards against which Congress has insisted that management of the networks be measured.” Reporters’ Comm. Br. at 11 (citing Tripp, 284 F. Supp. 2d at 56).
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, Civ. A. 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 contend that the Supreme Court’s articulation of the employee-speech doctrine in Garcetti v. Ceballos, 547 U.S. 410 (2006), controls.

25

For this reason, plaintiffs’ calls for VOA and the networks to be regarded as “credible, professional news

outlets, vested with full First Amendment protections,” fail. Pls.’ Reply at 22; see also Pls.’ Mem. at 29; Reporters’

Comm. Br. at 11–16. Plaintiffs’ reliance on Tripp v. Department of Defense, 284 F. Supp. 2d 50 (D.D.C. 2003), to

support their view that VOA and the networks are “entitled to the First Amendment protections reserved to the

press,” Pls.’ Mem. at 29 (citing Tripp, 284 F. Supp. 2d at 55–57), is misplaced. In Tripp, another Judge on this

Court concluded that a newspaper “published and financed” by the Department of Defense was entitled to full First

Amendment protections, 284 F. Supp. 2d at 55 n.3, but cited no direct judicial authority in reaching this conclusion,

relying instead largely on explicit statements by Congress that the publication should “enjoy the full protection of

the First Amendment,” id. at 56 (citing H.R. Rep. 101-121, at 838 (1989)). Congress has made no equivalent

declarations in its passage of or deliberations regarding the BIB Act, the IBA, VOA, or the networks. See supra Part

I.A.

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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. Board of Education, 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
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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 niche in our constitutional tradition.”); Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967) (“Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”).
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
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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.
Against this backdrop of the weighty First Amendment interests in protecting freedom of the press and the heightened protection assigned to equivalent interests of public employees in
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the academic context, the logical conclusion is that Garcetti does not apply to the core editorial or journalistic functions of government-employed journalists. Though, as the Ninth and Fourth Circuits have acknowledged, speech made “pursuant to official duties” outside of these functions remains subject to Garcetti, speech made in relation to editorial and journalistic activities is protected under the First Amendment, using the analysis set forth in Pickering.26 To merit First Amendment protection under Pickering, a government employee must show, first, that her speech addressed “matters of public concern,” Pickering, 391 U.S. at 568; see also Connick, 461 U.S. at 145–46, and, second, that her interest “in commenting upon matters of public concern” outweighs “the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees,” Pickering, 391 U.S. at 568.
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

26

This rule is consistent with previous decisions of the D.C. Circuit applying the employee-speech

framework to claims brought by VOA and network employees and contractors. The D.C. Circuit in Weaver, a pre–

Garcetti case, applied Pickering to decide the merits of that plaintiff’s pre-enforcement challenge to a prepublication

review requirement enforced by USIA. See 87 F.3d at 1440–43. Likewise, in its only post-Garcetti decision

reaching the merits of a First Amendment claim brought by a VOA contractor, the D.C. Circuit applied Pickering

without reference to Garcetti. Navab-Safavi, 637 F.3d at 315–18. Though at least one district court in this Circuit

has applied Garcetti to a VOA employee’s First Amendment claims, see Jangjoo, 244 F. Supp. 3d at 170–72, that

case centered on internal emails sent by an employee “air[ing] grievances against” his supervisors and therefore did

not implicate the employee’s editorial or journalistic functions, id. at 170.

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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
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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. Civ. A. 05-0472 (JDB), 2005 WL 1017877, at *7–8 (D.D.C. May 2, 2005). Finally, with respect to preenforcement 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 (citing 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
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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 defendants rather than a “particularized disciplinary action” taken against her, Weaver, 87 F.3d at 1439, the question is whether the restrictions defendants have allegedly imposed on Chao’s and her colleagues’ speech are no more restrictive than “‘reasonably necessary to protect’ various government interests,” id. at 1436 (quoting NTEU, 513 U.S. at 474). In the unique context of the editorial and journalistic activities undertaken at VOA and the networks, the determination of which measures are “reasonably necessary” to promote the efficiency of the public services these outlets perform is informed by the IBA. The IBA implements a carefully constructed balance between CEO authorities, intended to streamline agency management and promote efficiency, see 22 U.S.C. § 6204(a), and preservation of VOA and the networks’ “professional independence and integrity,” id. § 6204(b). That statutory scheme reflects a considered congressional determination that USAGM’s pursuit of agency efficiency is cabined by the mandate that U.S.–funded international broadcasting “be conducted in accordance with the highest professional standards of broadcast journalism.” Id. § 6202(a)(5). As the D.C. Circuit put it in interpreting the BIB Act, USAGM is “given evaluative and review responsibilities” while “day-to-day control [is] left to the stations themselves.” Ralis, 770 F.2d at 1125. Thus, except where the 2016 amendments to the IBA now specifically entrust a particular function to the CEO, USAGM’s cabined evaluative and review responsibilities are likely to be “reasonably necessary” to ensure the efficiency of agency
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operations and the effective provision of the networks’ public services. In contrast, with respect to core editorial and journalistic activities governed by Pickering, the IBA indicates that actions by USAGM that implicate day-to-day control of the networks are presumptively unnecessary, given the bifurcated roles that Congress has intentionally created. The inclusion, through the statutory firewall, of a mandate for USAGM to respect the outlets’ “professional independence and integrity” reflects that Congress determined this interest to be of greater public importance than the general government interest in efficiency. 22 U.S.C. § 6204(b). Indeed, this Circuit has recognized that USAGM and its media outlets have an interest in maintaining an appearance of “the highest journalistic credibility” that is owed weight in the Pickering analysis. Navab-Safavi, 637 F.3d at 316. With these background principles in mind, the constitutionality of each of defendants’ challenged actions is considered next.
(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
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networks’ choice of journalistic personnel must be weighed against USAGM’s interests in fulfilling its statutory mandate and ensuring the functioning of U.S. international broadcasting.
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.” 22 U.S.C. § 6204(a)(11). The statute thus suggests a congressional decision that CEO control over USAGM employees is “reasonably necessary” to the agency’s efficient performance of its duties. Further, Chao does not allege any direct impact of Kligerman’s removal on her or her colleagues’ exercise of First Amendment rights, beyond its symbolic weight as an indicator of defendants’ general disregard for the statutory firewall. Kligerman’s removal is thus not likely to be found unconstitutional.
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,” 22 U.S.C. § 1474(1), a limit that, as defendants point out, USAGM “has sometimes been accused of ignoring,” Defs.’ Opp’n at 25 (citing Nyunt, 589 F.3d at 447; Grosdidier, 560 F.3d at 496; Broad. Bd. of Governors v. Am. Fed’n of Gov’t Emps. Local 1812, 66 F.L.R.A. 380 (2011)). In
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light of this provision and the CEO’s authority under the IBA to “supervise” VOA and the networks’ employment of foreign journalists, see 22 U.S.C. § 6204(a)(1), Pack, as CEO, has made a reasonable determination that he has a statutory obligation to give J-1 visa applications greater scrutiny than they have received in the past. His decision to implement this choice at a programmatic level, without rejecting the applications of specific individual J-1 visa holders while approving others, suggests that it falls within the ambit of USAGM’s “evaluative and review responsibilities.” Ralis, 770 F.2d at 1125.
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 foreign journalists and likely survives Pickering. Id. at 496.
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
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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. 22 U.S.C. § 6204(a)(11). Further, while a programmatic approach to assessing J-1 visa applications is likely among the “evaluative and review responsibilities” entrusted to USAGM, efforts to influence or make personnel decision with respect to editorial and journalistic employees unquestionably constitute “day-to-day” management of the sort left to VOA and the networks. Ralis, 770 F.2d at 1125. Thus, the IBA clearly indicates that interference by USAGM officials with VOA and the networks’ editorial and journalistic personnel is not “reasonably necessary” under Pickering.
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.
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(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.” 22 U.S.C. § 6202(b)(3). Thus, this particular use of VOA as a mouthpiece for U.S. government views is plainly anticipated by and written into the IBA. Plaintiffs attempt to dismiss this statutory mandate by arguing that it does not “require any USAGM network to publish content written by the government [or] give any government official the authority to dictate how opinion pieces are presented and where.” Am. Compl. ¶ 101 n.27. They do not, however, allege that any VOA journalists are assigned to write these editorials or to post them under their names. The “manner” of the speech at issue, then, O’Donnell, 148 F.3d at 1135, burdens the First Amendment rights of VOA in the abstract rather than individual employees. Under Pickering, this organizational interest of a subagency does not outweigh the deference owed to the determination of VOA’s parent agency that posting editorials on VOA’s homepage is “reasonably necessary” to facilitate compliance with a statutory provision that imposes explicit content requirements on VOA. Second, defendants’ requests to participate in news coverage meetings and efforts to directly oversee journalists’ assignments constitute direct communications with network
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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
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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 news coverage fall within the CEO’s duties under the IBA to “supervise” VOA and the networks, 22 U.S.C. § 6204(a)(1), “to assess the quality, effectiveness, and professional integrity of” broadcast activities, id. § 6204(a)(2), and “[t]o ensure,” id. § 6204(a)(3), that VOA and the networks present “a balanced and comprehensive projection of United States thought and institutions,” id. § 6202(b)(2); see also Defs.’ Opp’n at 25–26. In light of the IBA’s separation of evaluative and review responsibilities from the day-to-day responsibilities assigned to the networks, see Ralis, 770 F.2d at 1125, any argument that it is “reasonably necessary” under the IBA regime for USAGM to carry out investigations and disciplinary measures in response to discrete stories or of particular individuals is questionable at best. More importantly for present purposes, more tailored methods, short of defendants stepping into the newsroom themselves, are available if defendants wish to monitor VOA and network coverage in order to carry out their statutory responsibilities. For example, VOA’s Best Practices Guide anticipates that USAGM
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“leadership” will “communicate[] challenges to VOA’s reporting down the chain,” presenting one alternative forum through which defendants could seek information about VOA stories. Best Practices Guide at 101 (emphasis omitted). Likewise, USAGM’s policy on potential ethics violations describes a graduated process for investigations, under which the network carries out initial investigations of discrete situations and USAGM becomes involved only if a widespread pattern of breaches at VOA or one of the networks comes to light. See USAGM Procedures at 1–2. Defendants’ direct communications with and investigations of VOA and the networks’ journalists are therefore not “reasonably necessary” and are likely to be found unconstitutional under Pickering.
(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
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“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 protection when he reports conduct that interferes with his job responsibilities, even if the report is made outside his chain of command.’” (quoting Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir. 2009))). At this time, then, it appears that plaintiffs are not likely to succeed in challenging the chilling effect of USAGM’s tweets or the investigation into Herman as an act of retaliation, though this question need not be fully resolved at this preliminary stage. See Aamer, 742 F.3d at 1041 (“[W]e are addressing only petitioners’ likelihood of success on the merits, not the actual merits of their claim.”).
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
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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 as to which they have publicly expressed personal opinions that could call their neutrality as reporters into question. Plaintiffs fear that this facially neutral policy might be applied in a manner that discriminates on the basis of viewpoint, see, e.g., Pls.’ Mem. at 35–36, but, at present, do not allege that any discriminatory application has occurred.28 So long as the policy is applied

27

Compare Conflicts Policy at 3 (suggesting that VOA and network journalists “consider whether recusal or

mitigation is required” after expressing a political opinion on social media), with, e.g., Crain Decl., Ex. 32, Ethical

Journalism: A Handbook of Values and Practices for the News and Editorial Departments, N.Y. TIMES 7, 16, 25

(2004), ECF No. 12-34 (preventing journalists from reporting in cases that could give rise to an actual conflict or the

appearance of a conflict, id. at 7, 25, and stating that journalists “may not campaign for, demonstrate for, or endorse”

candidates or political causes and “may not wear campaign buttons or . . . display any other insignia of partisan

politics,” id. at 16), and Crain Decl., Ex. 33, Los Angeles Times Ethics Guidelines, L.A. TIMES 12–14 (2014), ECF

No. 12-35 (noting that “[s]taff members should avoid public expressions or demonstrations of their political views,

whether on bumper stickers, lawn signs, blog posts, social media or online comments,” id. at 12, and reserving to the

paper the right to “restrict a staff member’s assignment” on the basis of a real or perceived conflict, id. at 14), and

Crain Decl., Ex. 34, Associated Press Statement of News Values and Principles, ASSOCIATED PRESS 10 (2020), ECF

No. 12-36 (“[AP employees] must refrain from declaring their views on contentious public issues in any public

forum, whether through blogs, social networks, comments pages, petitions, bumper stickers or lapel buttons.”).

28

A challenge brought by a VOA or network employee alleging discriminatory application of the policy on

the basis of political bias would likely be precluded by the CSRA as a challenge to a “prohibited personnel

practice.” See supra Part III.A.1.b.i.

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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 § 6202 of the IBA. 22 U.S.C. § 6204(a)(3). Among the standards and principles is a requirement that VOA and the networks deliver “news which is consistently reliable and authoritative, accurate, objective, and comprehensive.” Id. § 6202(b)(1). Pack’s determination that clarifications to the existing conflicts-of-interest policies were “reasonably necessary” to ensure compliance with this mandate and the continued credibility of VOA and the networks is owed deference. See NavabSafavi, 637 F.3d at 316 (finding that USAGM and its media outlets have a shared interest in maintaining “the highest journalistic credibility” that is owed weight in the Pickering analysis). USAGM’s interest in credibility, which Chao herself concedes is one of VOA and the networks’ “most essential assets,” Second Chao Decl. ¶ 10, likely outweighs the minimal burden on employee speech imposed by the conflicts-of-interest policy on its face. Plaintiffs are not likely to succeed in challenging the policy under Pickering.
(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
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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,” 22 U.S.C. § 6204(a)(5), “[t]o allocate funds appropriated for international broadcasting activities,” id. § 6204(a)(6), “[t]o . . . procure, rent, or lease supplies, services, and other property for journalism, media, protection, and broadcasting,” id. § 6204(a)(10), and “[t]o obligate and expend, for official reception and representation expenses, such amount as may be made available through appropriations,” id. § 6204(a)(12). Common sense dictates that it is “reasonably necessary” for the CEO to have control over agency funds and the distribution and use thereof. Weighed against the ambiguous First Amendment interests plaintiffs identify, this logic is likely to prevail under Pickering.
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.
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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

29

Defendants originally argued that this factor weighed against injunctive relief because the five original

plaintiffs’ loss of employment, reputational harms, and alleged difficulty in repairing the damage done to USAGM

by defendants did not constitute irreparable harm, nor could they demonstrate irreparable harm by relying on the

First Amendment rights of third-party journalists. See Defs.’ Opp’n at 36–39. The subsequent joinder of Chao, who

experiences irreparable harm to her own First Amendment rights as a result of defendants’ actions, renders these

arguments moot.

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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); 22 U.S.C. § 6201(1). To this end, Congress has consistently determined that “the professional independence and integrity” of U.S.–funded international broadcasting outlets is key to achieving that goal. 22 U.S.C. § 6204(b); see also Ralis, 770 F.2d at 1125 (“It was deemed important by Congress [in the BIB
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Act] that institutional arrangements be such that the stations not lose their ‘non-official status’; to transform Radio Free Europe and Radio Liberty from independent broadcasters into house organs for the United States Government was seen as inimical to the fundamental mission of those stations.”); supra Part I.A. That U.S. foreign policy with respect to U.S.–funded international broadcasting is centered on the promotion and exportation of First Amendment values only bolsters the inevitable conclusion that enforcement of VOA and network editors’ and journalists’ First Amendment rights is in the public interest. 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
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 Case 1:20-cv-02885-BAH Document 22-1 Filed 10/22/20 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GRANT TURNER, et al, Plaintiffs,
v. U.S. AGENCY FOR GLOBAL MEDIA, et al.,
Defendants.

Case No. 20-cv-2885-BAH

BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND 16 MEDIA ORGANIZATIONS AS AMICI CURIAE SUPPORTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

i

Case 1:20-cv-02885-BAH Document 22-1 Filed 10/22/20 Page 2 of 20 TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF AMICI CURIAE ................................................................................................... 1 INTRODUCTION .......................................................................................................................... 6 ARGUMENT .................................................................................................................................. 8
I. The success of the USAGM networks as credible news organizations is inseparable from the editorial firewall insulating them from political “tampering.” ..................................... 8
II. Journalists at the USAGM broadcasters receive the same First Amendment protections as journalists at private news organizations. ......................................................................... 11
CONCLUSION............................................................................................................................. 16
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TABLE OF AUTHORITIES
Cases Adams v. Trustees of University of N.C.-Wilmington, 640 F.3d 550 (4th Cir. 2011) ................... 14 Am. Freedom Def. Initiative v. WMATA, 901 F.3d 356 (D.C. Cir. 2018) .................................... 15 Demers v. Austin, 746 F.3d 402 (9th Cir. 2014) ....................................................................... 7, 14 Garcetti v. Ceballos, 547 U.S. 410 (2006) ....................................................................... 12, 13, 14 Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)........................................................ 14 Husain v. Springer, 494 F.3d 108, 124 (2d Cir. 2007) ................................................................. 15 Jangjoo v. Broadcasting Bd. of Governors., 244 F. Supp. 3d 160 (D.D.C. 2017) ................. 13, 14 Johanns v. Livestock Marketing Ass'n, 544 U.S. 550 (2005) ....................................................... 13 Koala v. Khosla, 931 F.3d 887 (9th Cir. 2019)............................................................................. 15 M.N.C. of Hinesville, Inc. v. U.S. Dep’t of Defense, 791 F.2d 1466 (11th Cir. 1986).................. 12 Matal v. Tam, 137 S. Ct. 1744 (2017) .................................................................................... 12, 13 Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)..................................................... 7, 10 Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011) ......................................................... 12 Newspapers Guild of Greater Phila., Local 10 v. NLRB, 636 F.2d 550 (D.C. Cir. 1980) ........... 16 Ralis v. RFE/RL, Inc., 770 F.2d 1121 (D.C. Cir. 1985)............................................................ 6, 10 Tripp v. Dep’t of Defense, 284 F. Supp. 2d 50 (D.D.C. 2003) ..................................................... 11 Walker v. Texas Div. Sons of Confederate Veterans, Inc., 576 U.S. 200 (2015).......................... 13
Statutes 22 C.F.R. § 531.3(b) ....................................................................................................................... 7 22 C.F.R. § 531.3(c)........................................................................................................................ 7 22 U.S.C. § 6202(a) ............................................................................................................... passim 22 U.S.C. § 6202(b) ........................................................................................................................ 6 22 U.S.C. § 6204(b) .................................................................................................................. 7, 13 Foreign Relations Authorization Act, Fiscal Year 1977, Pub. L. No. 94-350, 90 Stat. 823 (1976) ……………………………………………………………………………………………….6, 8, 9 National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, 130 Stat. 2548
(2016) ....................................................................................................................................... 10 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277,
112 Stat. 2681 (1998)............................................................................................................ 9, 10 Tex. Transp. Code Ann. § 504.005(a) .......................................................................................... 13 United States International Broadcasting Act of 1994, Pub. L. No. 103-236, 108 Stat. 382 (1994)
..................................................................................................................................................... 9
Other Authorities Alan L. Heil, Voice of America: A History (2003) ...................................................................... 11 Anthony Lewis, Nixon and a Right of Reply, N.Y. Times (Mar. 24, 1974),
https://perma.cc/95M5-G5F3.................................................................................................... 10 David S. Law, The Paradox of Omnipotence: Courts, Constitutions, and Commitments, 40 Ga. L.
Rev. 403 (2006)......................................................................................................................... 15 Gregory Mitrovich, Hoover Inst., Cold War Broadcasting Impact (2004)..................................... 9 H.R. Rep. No 93-510, as reprinted in 1973 U.S.C.C.A.N. 2271 (1973).................................. 8, 11 Les Neuhaus, Ethiopia Drops Charges Against Journalists, Associated Press (Mar. 22, 2006),
https://tinyurl.com/y3kg5dql....................................................................................................... 6
ii

Case 1:20-cv-02885-BAH Document 22-1 Filed 10/22/20 Page 4 of 20 Matthew C. Weed, Cong. Research Serv., R43521, U.S. International Broadcasting: Background
and Issues for Reform (2016).................................................................................................... 12 Ranjan Borra, The Problem of Jamming in International Broadcasting, 11 J. Broadcasting 355
(1967) .......................................................................................................................................... 9 Reporters Committee Letter: Congress Must Protect Voice of America’s Editorial Independence,
Reporters Comm. for Freedom of the Press (Apr. 28, 2020), https://perma.cc/34QC-8G5D .... 5 S. Rep. No. 107-60 (2001) ........................................................................................................ 7, 12 U.S. Agency for Global Media, Audience and Impact: Overview for 2019 (2019) ........... 6, 10, 11 VOA’s First Broadcasts, VOA News (Mar. 8, 2012), https://tinyurl.com/y2ccoc28 ..................... 8
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INTEREST OF AMICI CURIAE Amici curiae are the Reporters Committee for Freedom of the Press (the “Reporters Committee”) and sixteen media organizations. Lead amicus the Reporters Committee is an unincorporated nonprofit association of reporters and editors dedicated to defending the First Amendment and newsgathering rights of the news media.1 Founded by journalists and media lawyers in 1970, when the nation’s press faced an unprecedented wave of government subpoenas forcing reporters to name confidential sources, the Reporters Committee today serves as a leading voice for the legal interests of journalists and news organizations. The Committee to Protect Journalists is an independent, nonprofit organization that promotes press freedom worldwide. We defend the right of journalists to report the news without fear of reprisal. CPJ is made up of about 40 experts around the world, with headquarters in New York City. A board of prominent journalists from around the world helps guide CPJ's activities. Free Press is a national, nonpartisan, non-profit organization with approximately 1.5 million members in the United States and around the world. It works to defend Internet freedom and press freedom, including the right of journalists and others to gather and report on information as well as the public’s right to see, hear and read that information—both of which are crucial to a functioning democracy. Free Press has participated in numerous court and agency proceedings on media, telecommunications, and technology law topics, including those involving First Amendment issues, since the organization's founding in 2003.

1

No counsel for a party authored this brief in whole or in part, and no party or counsel for

a party made a monetary contribution intended to fund the preparation or submission of this

brief. No person other than amici curiae or their counsel made a monetary contribution to the

preparation or submission of this brief.

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Freedom of the Press Foundation (“FPF”) is a non-profit organization that supports and defends public-interest journalism in the 21st century. FPF works to preserve and strengthen First and Fourth Amendment rights guaranteed to the press through a variety of avenues, including building privacy-preserving technology, promoting the use of digital security tools, and engaging in public and legal advocacy.
The Media Institute is a nonprofit foundation specializing in communications policy issues founded in 1979. The Media Institute exists to foster three goals: freedom of speech, a competitive media and communications industry, and excellence in journalism. Its program agenda encompasses all sectors of the media, from print and broadcast outlets to cable, satellite, and online services.
MPA – The Association of Magazine Media (“MPA”) is the industry association for magazine media publishers. The MPA, established in 1919, represents the interests of close to 100 magazine media companies with more than 500 individual magazine brands. MPA’s membership creates professionally researched and edited content across all print and digital media on topics that include news, culture, sports, lifestyle and virtually every other interest, avocation or pastime enjoyed by Americans. The MPA has a long history of advocating on First Amendment issues.
The National Press Club Journalism Institute is the non-profit affiliate of the National Press Club, founded to advance journalistic excellence for a transparent society. A free and independent press is the cornerstone of public life, empowering engaged citizens to shape democracy. The Institute promotes and defends press freedom worldwide, while training journalists in best practices, professional standards and ethical conduct to foster credibility and integrity.
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The National Press Club is the world’s leading professional organization for journalists. Founded in 1908, the Club has 3,100 members representing most major news organizations. The Club defends a free press worldwide. Each year, the Club holds over 2,000 events, including news conferences, luncheons and panels, and more than 250,000 guests come through its doors.
The National Press Photographers Association (“NPPA”) is a 501(c)(6) non-profit organization dedicated to the advancement of visual journalism in its creation, editing and distribution. NPPA’s members include television and still photographers, editors, students and representatives of businesses that serve the visual journalism industry. Since its founding in 1946, the NPPA has vigorously promoted the constitutional rights of journalists as well as freedom of the press in all its forms, especially as it relates to visual journalism. The submission of this brief was duly authorized by Mickey H. Osterreicher, its General Counsel.
The News Leaders Association was formed via the merger of the American Society of News Editors and the Associated Press Media Editors in September 2019. It aims to foster and develop the highest standards of trustworthy, truth-seeking journalism; to advocate for open, honest and transparent government; to fight for free speech and an independent press; and to nurture the next generation of news leaders committed to spreading knowledge that informs democracy.
The Online News Association is the world’s largest association of digital journalists. ONA’s mission is to inspire innovation and excellence among journalists to better serve the public. Membership includes journalists, technologists, executives, academics and students who produce news for and support digital delivery systems. ONA also hosts the annual Online News Association conference and administers the Online Journalism Awards.
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PEN American Center (“PEN America”) is a non-profit association of writers that includes novelists, journalists, editors, poets, essayists, playwrights, publishers, translators, agents, and other professionals. PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible, working to ensure that people everywhere have the freedom to create literature, to convey information and ideas, to express their views, and to make it possible for everyone to access the views, ideas, and literatures of others. PEN America has approximately 7,500 members and is affiliated with PEN International, the global writers™ organization with over 100 Centers in Europe, Asia, Africa, Australia, and the Americas.
Radio Television Digital News Association (“RTDNA”) is the world’s largest and only professional organization devoted exclusively to electronic journalism. RTDNA is made up of news directors, news associates, educators and students in radio, television, cable and electronic media in more than 30 countries. RTDNA is committed to encouraging excellence in the electronic journalism industry and upholding First Amendment freedoms.
Reporters sans frontières is one of the largest international press freedom and freedom of information NGOs in the world. Through its U.S. chapter, Reporters Without Borders USA, RSF advocates for press freedom in the United States and globally, and provides legal assistance and training to journalists so they can protect themselves in the field and online.
The Society of Environmental Journalists is the only North-American membership association of professional journalists dedicated to more and better coverage of environmentrelated issues.
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Society of Professional Journalists (“SPJ”) is dedicated to improving and protecting journalism. It is the nation’s largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a wellinformed citizenry, works to inspire and educate the next generation of journalists and protects First Amendment guarantees of freedom of speech and press.
The Tully Center for Free Speech began in Fall, 2006, at Syracuse University's S.I. Newhouse School of Public Communications, one of the nation's premier schools of mass communications.
As organizations committed to defending First Amendment freedoms, including the right to gather and report the news, amici have a powerful interest in ensuring that the constitutional rights of all journalists, including working journalists at USAGM networks, are not infringed, see, e.g., Reporters Committee Letter: Congress Must Protect Voice of America’s Editorial Independence, Reporters Comm. for Freedom of the Press (Apr. 28, 2020), https://perma.cc/34QC-8G5D, and that the U.S. Agency for Global Media (“USAGM”) complies with Congress’s instruction to observe “the highest professional standards of broadcast journalism,” 22 U.S.C. § 6202(a)(5).
Amici respectfully submit this amici curiae brief pursuant to Local Civil Rule 7(o).
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INTRODUCTION The success of publicly funded journalism at Voice of America (“VOA”) and its sister networks, as credible sources of news for millions around the world, depends on editorial independence. See Ralis v. RFE/RL, Inc., 770 F.2d 1121, 1125 (D.C. Cir. 1985). The trust of the audience depends on it; listeners turn to Radio Free Europe, for example, as an alternative to state media, not as their second state-media option. See, e.g., U.S. Agency for Global Media, Audience and Impact: Overview for 2019, at 17 (2019) (finding that videos fact-checking local disinformation are among VOA and RFE/RL’s most popular offerings in Russia). And the safety of the reporters depends on it; journalists are always at risk of retaliation for their work, but rarely more so than when tarred as spies or government cut-outs. See, e.g., Les Neuhaus, Ethiopia Drops Charges Against Journalists, Associated Press (Mar. 22, 2006), https://tinyurl.com/y3kg5dql (describing charges of “treason” against five VOA reporters who were “accused of attempting to overthrow the government” of Ethiopia). At base, to transform these “independent broadcasters into house organs for the United States Government” would be “inimical to the fundamental mission of those stations.” Ralis, 770 F.2d at 1125. To prevent that outcome, the independence of news organizations operating under the USAGM is guaranteed by law. Since VOA was chartered, Congress has required that its work “be accurate, objective, and comprehensive.” Foreign Relations Authorization Act, Fiscal Year 1977, Pub. L. No. 94-350, § 503, 90 Stat. 823, 831 (1976). Congress has since mandated that all U.S. international broadcasting “be conducted in accordance with the highest professional standards of broadcast journalism,” 22 U.S.C. § 6202(a)(5); that news offerings be “consistently reliable and authoritative, accurate, objective, and comprehensive,” id. § 6202(b)(1); and that USAGM leadership “respect the professional independence and integrity of the [Broadcasting
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Board of Governors], its broadcasting services, and the grantees of the Board,” id. § 6204(b). As the agency’s own regulations explain, that “firewall” is “violated when any person within the Executive Branch or a Network, but outside the newsroom, attempts to direct, pressure, coerce, threaten, interfere with, or otherwise impermissibly influence any of the USAGM networks . . . in the performance of their journalistic and broadcasting duties.” 22 C.F.R. § 531.3(c). These barriers ensure the fact—and, crucially, the credible appearance—of independence.
Just as important, the reporters at the networks—as “working journalists,” even if paid with public funds, S. Rep. No. 107-60, at 24 (2001)—are protected by the First Amendment. The First Amendment “erects a virtually insurmountable barrier” with respect to “government tampering” where “news and editorial content is concerned.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 259 (1974) (White, J., concurring). And while the Constitution did not require Congress to constitute VOA or its sister networks as professional, independent news organizations in the first instance, Congress chose to do so—just two years after Tornillo was decided. That choice has both interpretive and constitutional significance. Just as the First Amendment can enforce a state’s decision to guarantee academic freedom, see, e.g., Demers v. Austin, 746 F.3d 402, 411 (9th Cir. 2014), it enforces editorial freedom when the government decides to hire reporters as reporters. And in insisting on adherence to the “highest professional standards” of journalism, 22 U.S.C. § 6202(a)(5), Congress made clear its intent to do just that.
Were it otherwise, perversely, the United States would never be able to credibly commit to producing professional journalism, because it could not credibly commit to reporters’ independence—even if it would serve the government’s interests to tie itself to the mast. See 22 C.F.R. § 531.3(b) (“Within any credible news organization, a firewall exists between anybody involved with any aspect of journalism . . . and everyone else in the organization.”) (emphasis
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added). The damage to trust in news organizations like VOA would be irreparable; there would be no way to un-ring the announcement that their autonomy was only ever provisional. That outcome would vindicate VOA’s skeptics, who have insisted, for instance, that “broadcasting funded by a government cannot be independent of that government.” H.R. Rep. No. 93-510 (1973), as reprinted in 1973 U.S.C.C.A.N. 2271, 2280 (minority views of Rep. Michael Harrington). The lesson of experience, though, has been the opposite. U.S. international public broadcasting remains a valuable journalistic enterprise so long as the safeguards established by Congress and the Constitution hold steady. For the reasons set forth herein, amici urge the Court to grant the injunction to reaffirm them.
ARGUMENT I. The success of the USAGM networks as credible news organizations is inseparable
from the editorial firewall insulating them from political “tampering.” From the outset, publicly funded broadcasting has staked its claim to trust on professionalism. As Voice of America’s first transmission in 1942 announced, “The news may be good or bad; we shall tell you the truth.” See VOA’s First Broadcasts, VOA News (Mar. 8, 2012), https://tinyurl.com/y2ccoc28. While Congress believed that U.S. broadcasting would advance “[t]he long-range interests” of the United States, lawmakers always insisted that VOA would promote those interests by—and not instead of—reporting the news. Foreign Relations Authorization Act, Fiscal Year 1977, Pub. L. No. 94-350, § 503, 90 Stat. 823, 831 (1976). “To be effective,” they recognized, “Voice of America . . . must win the attention and respect of listeners.” Id. That insight has been borne out by experience. By providing truthful information not available in closed societies, VOA and its sister networks earned enormous engagement in the Eastern Bloc and beyond. In an effort to quash that appeal, by 1958, the Soviet Union had
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invested in an “army of jammers . . . five or six times more expensive than all the broadcasting of the Voice of America in all languages in all parts of the world.” See Ranjan Borra, The Problem of Jamming in International Broadcasting, 11 J. Broadcasting 355, 360 (1967) (quoting a U.S. delegate to the United Nations). The USSR claimed, of course, that it did so because of the broadcasts’ low quality: “not the voice of America but a sort of wailing over radio.” Id. at 361 (quoting Nikita Khrushchev). In fact, as both Western and Soviet audience research found, listeners tuned in “to access information not available through the Soviet media, or to verify or refute Soviet media claims.” Gregory Mitrovich, Hoover Inst., Cold War Broadcasting Impact 18 (2004). Notably, during the Chernobyl disaster, VOA provided “invaluable information to East European, Russian, and Ukrainian audiences about the dangers of radiation and the steps they needed to take to avoid radiation poisoning,” while state media remained silent. Id. at 12.
Throughout the networks’ history, Congress has closely and carefully maintained the independence that underpins that trust. In VOA’s charter, signed into law by President Gerald Ford in 1976, Congress required that the agency’s news “be accurate, objective, and comprehensive”; that it not represent any “single segment of American society”; and that it always present “a balanced and comprehensive projection of significant American thought and institutions.” Foreign Relations Authorization Act, Fiscal Year 1977, Pub. L. No. 94-350, § 503, 90 Stat. 823, 831 (1976). In 1994, when Congress acted to consolidate non-military broadcasting under a single agency, it also established firm professional standards for all of the networks— including the requirement that agency leadership “respect the[ir] professional independence and integrity.” United States International Broadcasting Act of 1994, Pub. L. No. 103-236, § 305, 108 Stat. 382, 436 (1994). Congress retained that requirement when it reorganized the networks in 1998, see Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L.
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No. 105-277, § 1323, 112 Stat. 2681, 2681–780, and again when it reorganized them further in 2016, see National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1288, 130 Stat. 2548. That statutory history reflects Congress’s “manifest” intent—consistently expressed over the course of five decades—that the networks “enjoy independence in programming and broadcasting decisions.” Ralis, 770 F.2d at 125.
Congress adopted these provisions with a clear understanding of why editorial independence matters at home—and how the First Amendment protects it. VOA’s charter was codified by statute just two years after the Supreme Court decided Tornillo, reaffirming that the Constitution condemns “compulsion exerted by government on a newspaper to print that which it would not otherwise print.” 418 U.S. at 256. At the time, the crucial role of an independent and adversarial press as a check on government was fresh in the public consciousness. Cf. Anthony Lewis, Nixon and a Right of Reply, N.Y. Times, (Mar. 24, 1974), https://perma.cc/95M5-G5F3 (discussing President Nixon’s support for a “right of reply” law similar to that rejected in Tornillo three months later and noting that “[o]verhanging the debate is the reality of Watergate”). There should be little doubt, then, that Congress understood the content and importance of journalistic standards when it applied them to VOA and its peers.
Under this framework, the networks’ commitment to high-quality journalism has produced explosive audience growth. Together, according to USAGM’s most recent data, they reach a staggering 350 million viewers and listeners every week. See U.S. Agency for Global Media, Audience and Impact: Overview for 2019, at 2 (2019). Just as important, the audience trusts the networks to tell them the truth. Seventy-seven percent of Radio Free Asia listeners say they find its journalism credible; the same is true of eighty-three percent of VOA’s audience. Id. at 5. And in Cuba, where USAGM broadcasts Radio and TV Martí, fully “97 percent of the
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audience found the information trustworthy, while 79 percent said that little or none of what they learned from Martí was available from other sources.” Id. at 18. It is difficult to imagine how the networks could have achieved that degree of success had they operated as, or been seen as, a Ministry of Truth. II. Journalists at the USAGM broadcasters receive the same First Amendment
protections as journalists at private news organizations. As Plaintiffs explain, Defendants’ actions clearly violate the statutory and regulatory firewalls that protect the networks’ independence. See Mot. Prelim. Inj. at 19–29, No. 20-cv2885 (D.D.C. Oct. 13, 2020). But it cannot be overemphasized that these restrictions also have constitutional significance: they incorporate First Amendment standards against which Congress has insisted that management of the networks be measured. Cf. Tripp v. Dep’t of Defense, 284 F. Supp. 2d 50, 56 (D.D.C. 2003) (concluding that Congress intended Stars and Stripes, the military newspaper, “to operate like other commercial newspapers, and enjoy First Amendment protections and prohibitions”). That point is critical to preserving the hard-won credibility of government-funded broadcasting. “Who in this world,” after all, “will believe that these radio stations operate in any way ‘like a free press’ . . . with ‘professional independence’ . . . when they are financed principally and directly by the U.S. Government?” H.R. Rep. No. 93-510, 1973 U.S.C.C.A.N. at 2278 (1973) (additional views of Rep. Benjamin Rosenthal). The answer, in part, is that an enforceable guarantee of editorial independence conveys to the audience that the public broadcasters are in the business of news—including news critical of the U.S. government—rather than propaganda. See Alan L. Heil, Voice of America: A History (2003) (citing Ivory Coast broadcaster’s observation that VOA’s “credibility and determination to ‘tell the news straight’ (Americans are famous for that) is the real reason it is believed in faraway places”).
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Since there is no serious argument that the First Amendment would allow the government to discipline the editorial choices of a conventional media organization, see Mot. Prelim. Inj., supra, at 30–39, Defendants will no doubt argue that VOA is not such an organization—that its reporters’ work is not protected by the First Amendment because it is either the government’s own speech, see Matal v. Tam, 137 S. Ct. 1744, 1757–58 (2017), or speech “pursuant to their official duties,” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).2 Those arguments are wrong: VOA journalists are journalists. To be sure, their position is “unique.” S. Rep. No. 107-60, at 24. And, to amici’s knowledge, neither the D.C. Circuit nor any other appeals court has addressed the First Amendment framework that should govern disputes between the journalists and bureaucrats over the application of the firewall.3 But from a first-principles perspective, to treat journalism—even publicly funded journalism—as government or public-employee speech would distort those doctrines. It would vitiate, too, the government’s own ability to promise

2

The individual USAGM networks have somewhat different organizational relationships

to the federal government. See Matthew C. Weed, Cong. Research Serv., R43521, U.S.

International Broadcasting: Background and Issues for Reform 7–9 (2016) (distinguishing fully

“federal” broadcasters, including VOA, from “grantee” broadcasters, such as Radio Free Asia).

Amici focus on the rights of VOA and its journalists since, to the extent reporters employed

directly by USAGM can assert First Amendment rights against it, it follows a fortiori that

grantee broadcasters and journalists can too. Cf. M.N.C. of Hinesville, Inc. v. U.S. Dep’t of

Defense, 791 F.2d 1466, 1471 (11th Cir. 1986) (concluding that, even assuming arguendo that a

newspaper distributed by the military itself would “not enjoy First Amendment protection,” the

First Amendment was implicated by the use of a pervasively regulated private “surrogate”

instead).

3

The D.C. Circuit has, however, addressed a mirror image dispute. In Navab-Safavi v.

Glassman, a contractor for VOA’s Persian News Network who was “not a journalist” alleged

that she had been fired in retaliation for appearing in a music video critical of the Iraq War. 637

F.3d 311, 313–14 (D.C. Cir. 2011). There, the Board argued that its interest in maintaining an

appearance of “the highest journalistic credibility” was of constitutional weight. Id. at 316. The

Court found that point “inarguable,” even though it ultimately concluded that it did not justify

taking action against the private speech of an employee who was not a journalist. Id.

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work consistent “with the highest professional standards of broadcast journalism.” 22 U.S.C. § 6202(a)(5).
As the Supreme Court recently warned, courts must “exercise great caution” before extending the government-speech doctrine because of its potential for “dangerous misuse.” Matal, 137 S. Ct. at 1758. As relevant here, the Court has only ever identified government speech where the defendant exercised “direct control” that, in VOA’s case, the governing statute prohibits. Id. at 1760 (quoting Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 213 (2015)). In Johanns v. Livestock Marketing Ass’n, for instance, the Secretary of Agriculture “exercise[d] final approval authority over every word used in every promotional campaign” at issue. 544 U.S. 550, 561 (2005). But for the Secretary of State or the chief executive at USAGM to exercise that degree of control would be a plain firewall violation. See 22 U.S.C. § 6204(b). In Walker, meanwhile, Texas reserved “sole control over the design, typeface, color, and alphanumeric pattern for all license plates.” 576 U.S. at 212 (quoting Tex. Transp. Code Ann. § 504.005(a)). Again, were the Secretary or chief executive to insist on picking the header photo in every VOA story, the Secretary or chief executive would be breaking the law.
For much the same reason, characterizing VOA’s journalism as official-capacity speech would make little sense in this case. In Garcetti, the Supreme Court concluded that certain statements made by public employees “pursuant to their official duties” are not protected by the First Amendment because regulating them “simply reflects the exercise of employer control over what the employer itself has commissioned or created.” 547 U.S. at 421–422. That point would be apposite, of course, if a VOA reporter claimed a First Amendment violation because an editor chose to kill a story. See Jangjoo v. Broad. Bd. of Governors, 244 F. Supp. 3d 160, 170–73
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(D.D.C. 2017) (applying Garcetti to a retaliation claim brought by a social media manager for Persia News Network against his supervisor).4 But these particular Defendants have no lawful ability to ‘control’ VOA’s journalistic activities, and no legitimate interest in interfering with editorial judgment. Further, reporters are much like academics in that their work “implicates additional constitutional interests that are not fully accounted for by [the Supreme Court’s] customary employee-speech jurisprudence.” Garcetti, 547 U.S. at 425; cf. Demers, 746 F.3d at 411 (excluding university academic speech from Garcetti on that ground); Adams v. Trs. of Univ. of N.C.-Wilmington, 640 F.3d 550, 562 (4th Cir. 2011) (same). As Garcetti acknowledged, the Constitution imposes some constraint on the government’s ability to define away the fundamental characteristics of a job it chooses to hire for. 547 U.S. at 424–26. As a result, when a state decides to run a university like a university, First Amendment protections attach. The same should be true when the state decides to run a broadcaster like a broadcaster.
Comparison with the First Amendment framework that governs student newspapers is also instructive. Under Hazelwood School District v. Kuhlmeier, a state institution that chooses to launch a newspaper need not award it the First Amendment latitude of a major metropolitan daily. 484 U.S. 260, 273 (1988). But a state actor may do so. Just as Congress has with USAGM, state actors may create news organizations subject to full First Amendment protections from state interference in their editorial discretion; schools can decide, for instance, that their educational interests are better served by ceding control than by reserving it. To that end, “all the circuits that have considered the issue have determined that, at the very least, when a public

4

Jangjoo also highlights that, to the extent the government-speech doctrine applies to

VOA, it would be a shield available to those who have a legal right to control the content of the

network’s speech: the newsroom’s chain of command. 244 F. Supp. 3d at 173 n.6 (concluding

that the government-speech doctrine barred a First Amendment claim based on an employee’s

disagreement with a supervisor about what to post to the network’s social media accounts).

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university creates or subsidizes a student newspaper and imposes no ex ante restrictions on the content that the newspaper may contain, neither the school nor its officials may interfere with the viewpoints expressed in the publication without running afoul of the First Amendment.” Koala v. Khosla, 931 F.3d 887, 903 n.9 (9th Cir. 2019) (quoting Husain v. Springer, 494 F.3d 108, 124 (2d Cir. 2007)). The key question is always what kind of institution the state set up in the first place—and the boundaries of that project become constitutional constraints, not just school rules. So too here. Congress, had it wanted to, could have founded broadcasters that did nothing but transmit State Department talking points. Instead, Congress established a short, closed list of constraints on broadcasting content, see 22 U.S.C. § 6202(a), and otherwise guaranteed the networks an independence equal to that of private news organizations. That is, Congress mandated professional journalism of the highest quality, a mandate that law, regulation, and functional norms have protected for decades. VOA is clearly a First Amendment institution.
Holding USAGM to Congress’s vision—and the broadcasters’ professional reality for the last fifty years—squares with the core First Amendment principle that the government must play by the rules it chooses to adopt. It is uncontroversial, for instance, that “[o]nce the state has created a limited public forum” for certain speech, “it must respect the boundaries that it has set.” Husain, 494 F.3d at 121; see also Am. Freedom Def. Initiative v. WMATA, 901 F.3d 356, 365 (D.C. Cir. 2018) (assuming that, even in a nonpublic forum, the government cannot change the rules with intent to censor). That principle is not just a restraint on the state; it empowers the state to earn others’ trust, by tying its own hands. See David S. Law, The Paradox of Omnipotence: Courts, Constitutions, and Commitments, 40 Ga. L. Rev. 407, 410 (2006). That power is critical if the government is to be in the business of journalism, where “credibility is
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central to the[] ultimate product and to the conduct of the enterprise.” Newspaper Guild of Greater Phila., Local 10 v. NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980).
Since its inception, public broadcast journalism’s challenge has been to win the trust of its audience—to bury any impression that Radio Free Europe, for example, is an American Pravda. Since its inception, public broadcasting has been dogged by the criticism that government cannot produce credible reporting—that its own interests will always trump journalistic rigor. For half a century, though, journalists at VOA and its sister networks have shown that the “highest professional standards” of the field are congruent with the interests of the United States, and vice versa. 22 U.S.C. § 6202(a)(5). Congress enshrined that compatibility in law; the First Amendment backstops it.
CONCLUSION For the foregoing reasons, amici respectfully urge the Court to grant the preliminary injunction.

Dated: October 22, 2020

Respectfully submitted,
/s/ Bruce D. Brown
BRUCE D. BROWN (D.C. Bar No. 457317)
Counsel of Record for Amici Curiae KATIE TOWNSEND GABRIEL ROTTMAN REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS 1156 15th Street NW, Ste. 1020 Washington, DC 20005 Telephone: 202.795.9300 bbrown@rcfp.org
Counsel for Amici Curiae
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