Legal Aid

Yale’s Jack Balkin and Nabiha Syed discuss a new effort to protect press freedoms

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?

JB: We’re in the middle of building out what I call a national surveillance state, which is a state that does a lot of the work of government by analyzing and collecting information. As they ramp up these features, we need to find out what government is doing, what kind of information it’s collecting, how it’s collecting it, whether it’s abusing its privileges or not.

At the same time, as the nature of government changes, as new programs get created and implemented, there is a natural bureaucratic tendency to resist inspection and investigation. So it wouldn’t be surprising to see governments become a little stingier than they were before. Certainly the Bush administration took a relatively hard line on these issues, and the jury is still out on what the Obama administration’s policy is going to be.

How has the clinic changed from how you first envisioned it a year ago?

NS: The most surprising thing is how quickly people have been willing to give us work. We have a relationship with The New York Times, for example, and if you had asked me when we were starting this out last year if I would ever talk to someone at The New York Times and help them with legal work, I would have laughed at you. It turns out that they’ll ask us for advice and they’ll be like, “Hey we have a case on this—take it, run with it, go for it.” We have the same relationship with the ACLU and a variety of people, and it’s because so much is changing and people have a need for bodies, and we have them and we’re free.

How is the externship funded?

JB: Right now the funding is coming from the law school; we have a little bit of money from the law school’s Knight Law and Media Program we can use. The externship is less expensive than a full clinic, but it’s also limited in terms of the jurisdictions in which it can take cases and the kind of things students can do. We are in the process of trying to raise funds to hire a full-time clinical professor so that we can expand and do more work. Ideally, we’d like to take cases nationwide and we even want to do some international work, but in an externship model that’s not really possible.

What are your long-term goals?

NS: I deeply, deeply believe that it’s important to have more methods for spreading ideas than just litigation. I would love to see us start a YouTube channel, and to get to the point where if people Google “what to do if accused of defamation,” we come up as a place where you can not necessarily get legal advice, but learn the landscape. I’d like to be the source that puts out the policy papers that people look up when they want to know what is going on in this field, so we’re your one-stop shop for information.

Do you see any drawbacks to taking this type of work out of the newsroom and into the nonprofit arena?

JB: I can think of advantages. An NGO might be able to defend some interests that a major metropolitan newspaper would regard as secondary. It might be willing to do the kind of FOIA work that a major metropolitan newspaper wouldn’t invest in because it’s time-consuming and expensive.

The model we had before assumed that the interests of newspapers were coextensive with the interests of free speech and with a free press generally, and that was always a kind of seat-of-the-pants assumption. These organizations, which were for-profit enterprises, were treated as a proxy for the public interest, but of course if you thought about it for a moment you would realize that a for-profit enterprise—which has to answer to its shareholders, as newspapers increasingly have to do—is not a perfect proxy for the pubic interest. So an NGO or a nonprofit clinic at a law school might be able to provide a different perspective, and between these two types of organizations the joint sum of their work might better approximate the public interest.

NS: I would lament the day when we replace a lawyer in the newsroom who has a personal relationship; that would be tragic. Where we can be situated is where people don’t have other options or they’re priced out of other options or they have don’t have time for them. That’s where we can step up.

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Rachael Scarborough King is a former reporter for The New Haven Register and a Ph.D. candidate in English and American literature at New York University.