Turner v. U.S. Agency for Global Media

• Decision Date: 20 November 2020
• Docket Number: Civil Action No. 20-2885 (BAH)
• Citation: 502 F.Supp.3d 333
• Parties: Grant TURNER, et al., Plaintiffs, v. U.S. AGENCY FOR GLOBAL MEDIA, et al., Defendants.
• Court: U.S. District Court — District of Columbia

502 F.Supp.3d 333

Grant TURNER, et al., Plaintiffs,

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

Civil Action No. 20-2885 (BAH)

United States District Court, District of Columbia.

Signed November 20, 2020

Joshua S. Lipshutz, Gibson, Dunn & Crutcher, LLP, Washington, DC, Alexandra Grossbaum, Pro Hac Vice, Mylan L. Denerstein, Pro Hac Vice, Zainab Naeem Ahmad, Lee Ross Crain, Gibson, Dunn & Crutcher, LLP, New York City, NY, Lauren Kole, Pro Hac Vice, Gibson, Dunn & Crutcher, LLP, Denver, CO, Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Plaintiffs.

Christopher M. Lynch, Michael Fraser Knapp, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

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.

The United States’ commitment to this cultural export has contributed to the downfall of oppressive regimes around the world, from Nazi Germany to the Soviet Union. Central to the success of this critical foreign policy work, however, is the premise that, in contrast to the state-run propaganda that dominates media in the countries where VOA and its sister networks broadcast, U.S.–funded international broadcasting outlets combat disinformation and deception with facts, told through an American lens of democratic values. Thus, "to transform" these outlets "into house organs for the United States Government" would be "inimical to [their] fundamental mission." Ralis v. RFE/RL, Inc. , 770 F.2d 1121, 1125 (D.C. Cir. 1985). Instead, to provide a model of democratic debate and deliberation informed by the contributions of a free press, VOA and its sister networks must "present the policies of the United States clearly and effectively," alongside "responsible discussions and opinion on these policies." 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 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 "), 470 F.Supp.3d 8, 12 (D.D.C. 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 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 , 470 F.Supp.3d at 12; 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 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...