Public Relations Firms Fight For Free Speech Protections

Progressive New York’s Attack on Free Frank VernuccioSpeech Continues

By Frank Vernuccio, Esq. 


The November Team, a public relations firm  is sounding an alarm concerning free speech rights in New York.

According to the organization, New York’s Governor Andrew Cuomo, who has occasionally been spoken of as a vice presidential candidate, is attacking at least one aspect of free speech rights.

In his State of The State speech, Cuomo, who became rather notorious for stopping the Moreland Commission which was designed to attack the Empire State’s rampant corruption issues (both the former Democrat Assembly speaker, Sheldon Silver, and the former Republican Senate Majority leader, Dean Skelos, left office following corruption charges. Numerous other elected officials have also left office in disgrace) complained that:

“Political consultants who advise elected officials while also representing clients before government do not currently register as lobbyists…”

Why Cuomo believes those private conversations should be recorded by the government remains unclear. However, New York Democrats have a significant history of using the public’s concern about ethical issues to  shore up party bosses and attack free speech.  The New York City Campaign Finance bureaucracy has been accused of attacking candidates not favored by Democrat party leaders.  In 2014, U.S. Senator Charles Schumer, a powerful Democrat in Congress, introduced a measure in the U.S. Senate to limit the First Amendment in regards to paid political speech during campaigns.

Cuomo’s plan would mean that phone calls between public relations (PR) offices and members of the press would have to be reported to a government agency, the state’s Joint Commission on Public Ethics (JCOPE), which has expanded its Advisory Opinion to include PR-type firms.

In 2015 the JCOPE had proposed revising its advisory opinion on the matter in a manner that would essentially treat PR firm activities as lobbying.

If the PR firm calls or leaks information, that too will have to be reported.  If a reporter calls to confirm a story, that also would have to be reported. Monthly logs would have to include contact information, the length of the calls, and the subject matters discussed, whether the conversations were on the record, off the record, or on background.

The law firm of Emery Celli Brinckerhoff & Abady has been retained to represent several of New York’s PR firms in the matter.  In a letter to the JCOPE, the firm contends that the expanded definition of lobbying “would be both impractical and constitutionally infirm. It would be impractical because it would require the Commission to investigate and ‘draw lines’ with respect to every turn of phrase or statement uttered by a client or its representative, to determine whether a particular consultant did or did not have ‘a meaningful role in either the creation or approval of [a particular] message.’…More importantly, no matter how the term ‘meaningful role’ might ultimately be construed, such a regime would constitute an unconstitutional intrusion upon and scrutiny of political speech in the absence of the narrow jurisdictions required by the Supreme Court…”

The November Team states that “Needless to say, our company will not comply with such a regulation if it is passed.  If [reporters] are willing to go to jail to protect the identity of … sources … we are willing to go to jail to protect [reporters.]”

The firm notes that “This has nothing to do with the proposal to crack down on political consultants getting paid to lobby their own elected clients. That is an entirely separate issue. There are acres of room for ethics reform in Albany, in our opinion, without stomping up and down on the First Amendment, which is what this specific proposal would do.”

Writing in Newsday, November Team principal William F.B. O’Reilly noted that:

“Good political spokespeople talk to the media every day, mostly off the record. … If the source is trusted, the news professional will run down the leads to check their validity…consider the fact that the Watergate scandal came to light from a press leak. Almost all scandals come to light that way. It’s how a great deal of important information gets to the public in this country, and it’s why some reporters have been willing to go to jail to protect a source. This doesn’t apply just to politics. It applies to all industries.”

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