The need for press freedom and government transparency is as urgent today as ever, but the newsrooms that long defended key rights have fewer resources. A year-old externship program at Yale Law School is trying to help. The ten students in the Media Freedom and Information Access Practicum work pro bono to support journalists on issues ranging from national security to online speech to access to state and federal records, and have already represented more than a dozen clients.
In May, Rachael Scarborough King spoke with Jack Balkin, Knight Professor of Constitutional Law and the First Amendment and the practicum’s supervisor, and Nabiha Syed, a recent graduate who was one of the four founding students. An expanded version of the interview, which was published in the July/August issue of CJR, appears here. This transcript has been edited for space and clarity.
How would you describe the mission of the project?
JB: You can think about it two ways: there are media freedom claims, and then there are media access claims. When you had newspapers flush with cash, they would not only protect their own interests, but they would also protect the interests of the public and free speech interests by bringing and defending lawsuits. Some of the most famous lawsuits in the history of the First Amendment have been lawsuits that were either brought by or against newspapers—New York Times Co. v. Sullivan being an obvious example, the Pentagon Papers case being another.
But as new technologies and digital networks place economic pressure on news organizations they have to cut costs, and one of the places they end up cutting costs is in the legal defense of First Amendment freedoms and information access rights. Somebody’s got to pick up the slack. And one group of institutions that might pick up the slack would be law schools, for obvious reasons—they already have legal talent, and they have strong connections to the preservation of First Amendment freedoms. So it was natural that we might try something here at Yale.
What kinds of cases have you been taking on so far?
NS: In our docket we have national security cases, which happen to be the most recent forum where we see barriers put up to prevent journalists from getting access to information. We have new media cases that deal with things like anonymous speech online. We have the everyday assisting local journalists to get materials that they need in writing their stories, so we do state records-access work. We have federal FOIA work. It kind of runs the gamut, because we realized that we have a mandate that’s flexible—that talks about supporting both news gatherers but also the process of newsgathering.
Is this approach to legal representation part of a larger move toward nonprofit models for journalism? How does it respond to the changing definition of journalism we’ve seen in recent years?
JB: One of the big trends that this clinic is a part of is what I would call the disaggregation of the functions of the twentieth-century newspaper. What we’ve noticed in the digitally networked environment is the disaggregation of content into different types of specialization. We’re now seeing a different type of disaggregation, so that different functions are being performed by different entities.
For example, legal clinics and NGOs that do not necessarily understand themselves to be journalistic enterprises nevertheless are engaged in litigation that uncovers information that is of value to the public. This is a feature of the way things are changing—FOIA requests are now an important part of the arsenal of any NGO in the United States, and so facility with FOIA has become almost a requirement And just as some nonprofits might take some of the work of investigative journalism onto their plates, so too other nonprofits might take some of the work of defending media freedoms onto their plate.
At the same time, journalists are engaged not only in the work of newsgathering, but also the work of news curation: deciding what is valuable, giving advice, and working collaboratively with non-journalists to achieve journalistic values in society. Journalists now might do reporting, as they’ve done before, or they might work with some NGO to get the information out, or they might interact with their readership or with the general public in order to get information that’s relevant to democracy out into the public. This is a cooperative, curatorial model that a lot of people have been talking about recently, and now we just see that extending to cooperation with attorneys.
Has it become more difficult for journalists to access information?