Illegal Restrictions on Speech to Continue

On Thursday, March 30, 2006, in response to public outcry over NASA’s suppression of climate science research which is inconsistent with the Bush administration’s political agenda, NASA unveiled a new media policy that it is touting as a free-speech breakthrough for agency scientists. The policy, however, falls far short of promises made by NASA Administrator Michael Griffin’s about scientific freedom of employee speech, specifically that the agency desires a “culture of openness.”

In December of last year, lead NASA climatologist Dr. James Hansen was threatened with “dire consequences” by a political appointee at NASA for statements he made about the consequences of climate change.

“Under this so-called reform Dr. Hansen would still be in danger of ‘dire consequences’ for sharing his research, although that threat is what sparked the new policy in the first place,” commented GAP Legal Director Tom Devine.

While the policy makes some improvements upon existing practices, it does not comply with existing free speech laws, and technical loopholes inserted in the eight-page document undermine NASA’s promises of unrestricted scientific freedom.

“The new policy violates the Whistleblower Protection Act (WPA), the Anti-Gag Statute, and the law protecting communications with Congress, the Lloyd-Lafollette Act. The loopholes are not innocent mistakes or oversights. GAP extensively briefed the agency lawyer on these requirements, and he insisted he understood them fully. NASA is intentionally defying the good government anti-secrecy laws,” added Devine.

GAP identified the areas in which the new policy is an improvement on the old:

  • NASA Administrator Michael Griffin’s reassuring rhetoric is of symbolic value, demonstrating official respect for scientific freedom.
  • The new media policy does not cover scientific reports, web postings, or professional dialogue such as at conferences. This allows scientists to share information with their colleagues without going through public affairs political appointees.
  • The policy officially recognizes scientists’ free speech right to express their “personal views” when they make clear that their statements are not being made on behalf of NASA.However, in six critical areas the new policy falls short of genuine scientific freedom and accountability, and potentially undermines the positive guarantees.
  • The gags remain sweeping, but the newly recognized rights are undefined in scope and context. While recognizing the existence of a “personal views” exception, the policy doesn’t announce the circumstances when that right cancels out conflicting restrictions, which are phrased in absolute terms applying to contexts such as “any activities” with significant media potential. This leaves a cloud of uncertainty that translates into a chilling effect for scientists.
  • The policy fails to comply with the legally-mandated requirements of the Anti-Gag Statute to explicitly include notice that the WPA and Lloyd Lafollette Act (for congressional communications) limit and supersede its restrictions.
  • The policy institutionalizes a requirement for “review and clearance by appropriate officials” for “all NASA employees” before they may release any “information that has the potential to generate significant media, or public interest or inquiry.” This means that scientists can be censored and will need advance permission from the “appropriate” official before anything can be released. This type of prior restraint violates First Amendment of the Constitution.
  • The policy defies the WPA by requiring prior approval for all whistleblower disclosures that are “Sensitive But Unclassified” (SBU). The legal definition of SBU is so broad and vague that it can be interpreted to sweep in virtually anything. The WPA only permits that restriction for classified documents or those whose public release is specifically banned by statute.
  • The policy bans employees’ rights to make anonymous disclosures, requiring them to seek advance permission. This limits their free speech and specifically violates the WPA.
  • The policy gives NASA the power to control the timing of all disclosures, which means scientists can be gagged until the information is dated and the need for the public to know about critical scientific findings has passed.

“Before this ‘new’ policy emerged, we saw unqualified theocrats at NASA’s public affairs office demand that scientists skew their theories to defend administration policy,” stated GAP President Louis Clark. “This policy does not establish the substantial change needed for scientists to realize their necessary freedom of speech.”