It began with a phone call asking for help. A reporter friend in New York needed to see some sealed court documents in a securities fraud case, but his newspaper—like many in the industry—had a shrinking news budget, dwindling staff, and strict limits on the use of legal counsel. He asked me, as a journalist-turned-lawyer, to write a letter on his behalf, asking that the materials be made public. Without them, there could be no story.
Major news organizations win such court battles all the time. Just last month, for instance, The New York Times and NBC Universal convinced a judge to release sealed court documents about the Bernie Madoff scandal. As a result, the public learned of allegations about a questionable relationship between the disgraced financier and the owners of the New York Mets.
Sadly, many news organizations no longer have the legal resources to fight for the public’s right to know. Budget cutbacks and changes in the business models of traditional media organizations have stifled the ability of news organizations to finance access litigation.
In the past five years, access litigation has “fallen dramatically” and the slowdown is expected to worsen, according to a 2009 Knight Foundation study.
This is “a scary time,” says Lucy Dalglish, executive director for the Reporters Committee for Freedom of the Press. “Fewer media companies—or individual news outlets—are willing or able to take on large legal fights to obtain public documents.” Without help from lawyers, a tremendous number of stories will go unreported, Dalglish warns.
Her concerns are well-founded. For years, news organizations have complained that high legal costs prevent them from fighting for access to government information. While some states try to address the problem by awarding attorneys’ fees when requests for government information are improperly handled, such statutes fall short because they require a news organization to front the costs of a lawsuit. These costs are often too much to bear. In Wisconsin, after two newspapers won access to government information about judicial candidates—and recovered their fees for doing so—a spokesman for former governor Jim Doyle expressed surprise that these newspapers “had the resources to sue the state.”
Organizations like the Knight Foundation and the National Freedom of Information Coalition are trying to help. Last year, these organizations established a $2 million fund to finance access litigation costs. But nonprofits cannot by themselves provide news organizations with the necessary legal resources necessary to do their jobs.
Law and journalism schools need to step up. They should jointly create First Amendment centers to train law and journalism students in prosecuting government information requests, fending off defamation claims, and handling other issues critical to the public’s right to know. These centers should also offer legal services to media organizations that would otherwise not be able to afford them. Law and journalism schools already engage in similar types of public service. Law schools’ legal clinics enable budding lawyers to help clients with a variety of legal issues. Journalism school programs allow students to investigate matters of public interest. The Medill Innocence Project, for instance, run by Northwestern University’s journalism school, has uncovered eleven wrongful criminal convictions. And at least two of these wrongful convictions were unearthed because Northwestern’s law students worked hand-in-hand with their journalism school counterparts.
Law and journalism schools clearly have the resources and skills to help journalists fight for access to government records. It is imperative that schools provide this help if the media are to remain independent watchdogs, keeping government honest and the public informed.
As for my friend, the New York newspaper reporter, my hands were tied. I couldn’t write a letter to the judge because my firm had a conflict of interest related to the case. As far as I know, the reporter never gained access to the sealed documents, and there haven’t been any public revelations about their contents. I can only hope that in the future, a journalist’s ability to fully and accurately report the news will not hinge on a favor.
Craig A. Newman is a partner with Richards Kibbe & Orbe LLP, the New York-based law firm, and chairman of the National Advisory Board of the Cronkite School of Journalism & Mass Communication at Arizona State University.