Third, for SCOTUSblog to be editorially independent of Goldstein and the firm, the committee said, it cannot “serve as a client-generating vehicle for either.” That’s significant here because Goldstein “uses SCOTUSblog as a platform for publicity…, making the blog part of his personal brand,” according to the committee, which also found the site’s editorial firewalls inadequate. “For a firewall to satisfy the Standing Committee, it would separate the law practice from the publication to prevent the law practice—which is an active advocate before the Supreme Court—from influencing editorial content.”
To support those comments, the committee noted:
[A]t least two people work on both sides of the firewall. Mr. Goldstein, who earns his living at the law firm, controls the blog’s editorial direction and has day-to-day story conversations with SCOTUSblog reporters. The firm manager of Goldstein & Russell also works as the deputy manager of SCOTUSblog. Three of the firm’s four lawyers are listed on the SCOTUSblog masthead. Other contributors to the blog represent clients before the Supreme Court, and the blog covers their cases without noting their relationship to SCOTUSblog. The blog and the firm share office space and resources. Far from keeping the blog editorially independent of the law practice as the rules require, these policies appear to permit the law practice to blend in with the blog.
For those reasons, the committee said, it would not reconsider SCOTUSblog’s application, and it “looked no further at other questions” raised by the application.
No doubt, SCOTUSblog is a puzzle—in large part because of Goldstein. Yes, he practices before the Court, and, as CJR reported in April, for many years he funded the site out of pocket: $250,000 per year from his law practice. Moreover, Goldstein has said he’s not a journalist, and that he has an “ethical obligation as an officer of the court that supersedes any other ethical obligation.” Goldstein said at the May hearing that he does his “level best” to balance the competing interests, and Hunter said that basically means, “It’s just up to you to sort of do the right thing in any given instance.”
Those facts do challenge the site’s editorial independence, but SCOTUSblog’s firewalls are stronger than the committee suggests—and when Goldstein asked the committee at the May hearing what more he could do to separate the site and firm, the only suggestion, from Itkowitz, was the creation of a journalistic advisory board. We’d be remiss, too, if we didn’t at least note the image and credibility problems of a gallery unwilling to credential SCOTUSblog but more than willing to credential foreign correspondents employed by state-run or state-owned publications, whose home countries lobby the federal government.
Finally, the most disappointing part of the Standing Committee’s decision is its apparent preference for traditional news media. As a Harvard study reported recently, citizen and independent journalistic activity, some of which might be characterized as conflicted or activist, is critical in the current news environment, in which the production and distribution of news is more dispersed than ever—and the traditional news media are reinventing themselves to survive. Non-traditional forms of journalistic activity are vital to public affairs reporting as the economic foundation of newspapers, the chief source of such reporting, continues to erode.
According to the Harvard study:
Many … who undertake independent journalistic activity … are likely to be motivated by personal concerns over particular issues, whether social, political, environmental, or otherwise. But [that motivation] may raise questions about the objectivity of their reporting … Credentialing organizations might be concerned that these individuals would either report on events in a biased fashion or (less likely) use their access to restricted locations as an opportunity for protest … The practice of denying credentials based upon perceptions of bias can all too easily lead to viewpoint-based decisions made to protect the credentialing organization itself rather than the public.
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