A new rule approved by the New York State Joint Commission on Public Ethics that expands the definition of lobbying to include PR professionals is being called into question by the industry for effecting First Amendment rights.
JCOPE approved the advisory opinion on Tuesday, adding to the rule that PR consultants or agencies working on government issues must register as lobbyists when interacting with members of the press
"The implications are vast – it's profoundly unconstitutional," said civil rights attorney Andrew Celli, a founding partner of Emery Celli Brinckerhoff & Abady. Mr. Celli was representing four agencies, Anat Gerstein, BerlinRosen, Stu Loeser & Co. and Risa Heller Communications, which were proposing guidance for the advisory opinion on the definition of lobbying.
"This rule would have a tremendous chilling effect on our clients' ability to communicate with the media and the public," said Jonathan Rosen, principal and cofounder of BerlinRosen. "It's vague, unconstitutional and really gets in the way of the work of a free press."
Representatives from Anat Gerstein, Stu Loeser & Co. and Risa Heller Communications were not immediately available for comment.
"Any attempt by a consultant to induce a third-party -- whether the public or the press -- to deliver the client's lobbying message to a public official would constitute lobbying under these rules," JCOPE's advisory opinion document states.
Mr. Celli said the new rule can impact "pretty much anyone who is practicing PR at a high level in the state of New York." He added that working with the media and engaging media contacts is "the bread and butter" of the industry.
"The idea of requiring anyone to have to report to the government before they talk to the press is a very dangerous proposition," New York Press Association Executive Director Michelle Rea earlier told Crain's New York Business. CNYB also reported that The New York Civil Liberties Union is siding with PR agencies on this one.
Mark McClennan, 2016 National Chair of the Public Relations Society of America, said via email that the organization supports its members, PR firms, journalists and others who have expressed their opposition of the advisory opinion to expand the lobbying definition.
"We believe that JCOPE's new rule inadvertently misses its intended target. Completely and arbitrarily redefining established professions that may or may not about lobbying does not support JCOPE's mission to 'restore public trust in government by ensuring compliance with the State's ethics and lobbying laws, regulations, and guidance,'" he said in the email.
Mr. McClennan added that the "poorly worded action" could result in subpar practices by creating an "ethical grey-zone."
In addition to redefining the PR profession as a whole, Mr. McClennan said the new rule could cause small firms and independent consultants to increase billing rates to cover the upped cost of licensing and disclosure or pass on business opportunities.
"New York State runs on the power and revenue generated by its small- and mid-size businesses; this rule does many of those businesses a vast disservice," he said.
Additionally, Mr. McClennan said that making PR agencies that are not involved in lobbying disclose billing statements publicly "may have a chilling effect."
According to Newsday, JCOPE Chair Daniel Horwitz said: "If you are being paid to lobby, the public has a right to know that. We're not talking about infringing or impinging or confining or constraining the media's ability to pursue the stories that they are pursuing."
At this point, there is no appeal for the rule within the context of the commission, said Mr. Celli.