It’s a cliché to say so, but we’re at a moment of transition for American journalism. The digital disruption that has challenged the newspaper industry and other legacy publishers has also created opportunities for independent journalists and startup news organizations. And the disruption has implications for the legal landscape in which journalism is produced, as new platforms and questions emerge.
Jeff Hermes has a unique window on those changes. He is the former director of the Digital Media Law Project at Harvard’s Berkman Center for Internet & Society, where he led initiatives to provide free legal resources to independent journalists and online media ventures. An attorney, Hermes is now the deputy director of the Media Law Resource Center, a nonprofit association for content providers and their legal counsel that serves as a resource on media law and policy issues.
I spoke recently with Hermes about the legal needs of independent journalists, online media ventures, and news startups. Parts of the discussion have been edited for grammar and clarity.
Let’s start with a question from 30,000 feet: What’s the biggest threat today to press freedom in the United States?
A lack of understanding of speech and press rights among the ever-increasing number of speakers communicating with the world. This is an issue that affects not only new speakers on the Internet (say, bloggers) but also traditional press organizations. When people don’t understand their rights, it can have a deleterious effect on their speech and on the speech of others. You can develop a culture in which speech and press rights lose their central values.
If I were a speaker, new or otherwise, and didn’t understand my rights, how might that affect a more established media outlet?
It happens in different ways. First, imagine a person is sued for defamation for posting certain content online, and that person, not knowing how to assert First Amendment defenses, inadvertently creates a bad precedent for all. Other parties or courts could use the case as legal authority against a press organization.
Second, it’s important to be mindful of cultural acceptance of speech restrictions. If you don’t understand your rights, you might accept restrictions that you otherwise wouldn’t, and the net effect is to create or feed an environment in which speech restrictions are okay—and that can erode a press organization’s ability to protect its rights.
Let’s say I want to be a new content provider online—an independent journalist or the creator of a media venture. One of my early decisions would be business form. Should I incorporate? Should I just start publishing? Is there a “right” decision to be made here?
You’re not required to have a corporate form to publish online. But if you don’t use one, you’re a sole proprietor—and if you’re sued, your personal assets are on the line. So most use a corporate form, which insulates your personal assets from lawsuits related to journalistic activities done in the corporate name.
With that in mind, it’s smart to consider complexity issues (how hard is it to set up and maintain a particular form?) as well as tax issues (different forms are taxed differently). Also think about your plan for the organization. Do you want to grow and sell it? Do you want someday to solicit outside investors? Those things might make one form more attractive than another.
A growing number of startup news ventures want to operate as nonprofits, as 501(c)(3) organizations. But journalism isn’t a tax-exempt activity recognized by the IRS, so obtaining that status is hard. What’s the IRS looking for? How can a news venture improve its chances of being recognized as a 501(c)(3)?
The IRS has had an existential crisis related to nonprofit journalism. It understands there is such a thing. PBS and NPR come to mind, and Congress effectively has said they’re nonprofits. Meanwhile, the IRS has been taxing The New York Times for years, so the IRS is familiar with journalism as a for-profit activity. The agency struggles to make sense of the difference.
501(c)(3) organizations receive a federal tax exemption and can receive deductible donations from individuals and charities. But the rules governing who qualifies as a 501(c)(3) have eight criteria, eight purposes for the exemption—and journalism isn’t one of them. But education is. The trick, then, is to justify to the IRS why your venture is not only journalistic but educational.
Putting aside the question of form, there are lots of platforms I could use to distribute my content online, if I were an independent journalist or new media venture. What legal issues might affect my platform choice?
If you’re an independent journalist, especially, you’re probably using a third-party platform to distribute your content—anything from a webhost to a blogging service. A third-party platform is a link in your chain of speech, between you and your audience, and it can restrict your speech as an intermediary. So you need to consider the controls it can use (through terms of service, for example) to interfere with your content or operations. You also need to consider to what extent a platform is resistant to government subpoenas or demands to remove your content.
Along the same lines, if you create an online journalism venture that includes a platform for third-party use and content sharing (like a message board or comments section), what are a few things that should be on your legal radar?
Primarily two things: your terms of service and your privacy policy. They are the contract between you and your users, and the terms in particular require you to think about how people will use your site. For example, do you want it to be a restrictive or permissive place? That will inform the terms you adopt. For the privacy policy, it’s much trickier. Federal and state laws impact your responsibilities regarding user information, depending on the information you’re gathering and how you’re using it. You might seek legal counsel for that.
Also, your own liability is minimal. Section 230 of the Communications Decency Act basically says you’re not responsible for what your users post. The exceptions: If you help to develop the content creating the liability (you design part of a user’s defamatory cartoon); if a federal criminal law is implicated (a user posts child pornography to your site); or if intellectual property rights are at issue (a user posts a copyrighted photo without authorization from the rights-holder). For the third scenario, though, another law kicks in to minimize your liability: the Digital Millennium Copyright Act, which protects you from liability for copyright-infringing third-party content as long as you remove it when you’re notified of it, and then take certain steps.
On the subject of liability, one general challenge for independent journalists and new ventures is responding to a legal threat. Do I hire a lawyer? Do I try to handle the threat myself? What’s a good way to make that decision?
Most established media organizations have institutional knowledge that helps them judge when they’re on thin ice, allowing them to consult legal counsel only when it’s most needed. Startups typically don’t have the resources to keep a bunch of lawyers on retainer, and many of them don’t yet have the institutional knowledge that helps them make the thin-ice judgments. So it’s usually smart to think in advance about whom you’d call if an issue arose.
Obtaining insurance to cover your publishing activities can facilitate that process. The providers of media policies often have rosters of attorneys who will help you if an issue causes you to make a claim under the policy. Otherwise, to find a media lawyer on your own, take advantage of groups like mine, and state bar associations, which all can help you search for a lawyer to meet your needs.
Independent journalists and online ventures, new or not, do have some unique legal needs, but many of their needs are the same ones that more traditional organizations face: defamation, privacy, access to information, and so on. The independents and online entities just face them, in many cases, with fewer resources.
Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.