·  Legal News, Analysis, & Commentary


The Harm of Close Hold Embargoes

— October 17, 2016

The First Amendment’s clause regarding the freedom of the press is crucial to maintaining a well-informed electorate and a world-class republic. Within a small social unit, such as a family or neighborhood, it’s possible for everyone to know everyone else, but in a polity as large as the United States, we rely on media outlets to bring us accurate information so we can make decisions concerning matters about which we lack firsthand experience. Because of the specific rights given to the media industry as a whole by the First Amendment, we have good reason to expect them to fulfill certain responsibilities in conjunction with that freedom, such as fair and accurate reporting that maintains the spirit in which the First Amendment was conceived. When the same government that provides for free media chokes them with close hold embargoes, that freedom is chipped away and the purpose is lost. When we can’t even know that the information we’re reading is the result of close hold embargoes, though, the damage is infinitely more insidious.

News is more than just a public service, it’s also a business. Reporters, editors, and even the kids that deliver newspapers earn their wage by contributing to the effort to inform the public. The aim of fair and accurate reporting by a private (non-governmental) news agency is always going to be tempered by the need to support that endeavor financially. In short, if a news outlet can report on a fast-breaking or interesting story before the others get a chance to do so, they stand a chance of selling more copies (or attracting more clicks and eyeballs, nowadays). The need to scoop a story became stressful and overwhelming for journalists, so they were the first to innovate the concept of the embargo. At its core, a news embargo is simply a mutual agreement to block outlets from reporting on a story until a certain time, allowing reporters to dig more deeply into the facts and hopefully report a more complete picture without having to rush to press with half-baked articles and questionable “facts.” This is a good thing.

Close hold embargoes are a whole other beast. This is when a newsmaking entity, such as the U.S. Food and Drug Adminstration (FDA), releases news to media outlets on the condition that they agree to wait until a certain time to report it, and they agree to report that news without doing any further research or interviewing any other sources until the embargo is past. The result is that the first reports of a given story in the media are exactly the story that the newsmaker wants, without any dissent or nuance. It’s important, because the human cognitive bias known as “anchoring” causes people to tend to accept as base fact the first information they hear about a subject, subjecting further information to scrutiny to see if it’s factual by how well it conforms to the information already “anchored” in their minds. Sure, a news agency is free to dig more deeply or interview other sources independently once the embargo is over, but at that point the horse is out of the barn. The time it takes for the conscientious news outlet to develop a more complete story is time that the public has already spent digesting the controlled version released by the first outlets out of the gate the minute the embargo expires. Journalists are back to the choice of whether to scoop a story in order to attract eyeballs (and therefore revenue), or whether to be good journalists.

The most disturbing quality of close hold embargoes is how secret they are. It seems that one of the conditions of an outlet being allowed access to fresh news is to keep the reality of the embargo under wraps. In other words, not only are a journalist’s hands tied when it comes to researching a story from other angles, it’s also forbidden to mention that one’s hands are tied, leading to the (mis)conception that the story being released at the expiration of the embargo is really a fully-researched, well-considered story and not just the line that the newsmaker wants fed to the public. As a journalist of sorts myself, I can only imagine how incredibly frustrating that must be. This secret is only revealed in accidental glimpses, such as a slip by the New York Times that mentioned that the FDA had required reporters not to speak to outside sources until after the news had been officially released. The FDA was not pleased about the breach.

The secret nature of close hold embargoes makes it really difficult to discern when they are being used, and by whom. However, it’s safe to say that their use is not necessarily limited to government agencies, and that that businesses and other interests manipulate the press in similar ways. When we can no longer trust that independent journalists are free to research and report the best possible information to a public that can’t know everything they need to know first-hand, the spirit of the First Amendment is violated. And when we can’t even know that we’re not allowed to know, it must make Benjamin Franklin spin so hard in his grave that the good citizens of Philadelphia, where he’s buried, ought to consider installing wind turbines.

Benjamin Franklin's grave at the Christ Church Burial Ground in Philadelphia, Pennsylvania. Photo by Brian Dunaway, courtesy of Wikimedia Commons
Benjamin Franklin’s grave at the Christ Church Burial Ground in Philadelphia, Pennsylvania. Photo by Brian Dunaway, courtesy of Wikimedia Commons


How the FDA Manipulates the Media
The Whole Picture: Close Hold Embargoes Shape What Consumers Know and When They Know It
The FDA has been using embargoes to manipulate journalists. Here’s how.
Anchoring Effect: How The Mind is Biased by First Impressions

Join the conversation!