United States Project

Survey: Editors see media losing ground as legal advocate for 1st Amendment

April 21, 2016

Editors around the country are losing confidence in the news industry’s ability to fulfill its role as a First Amendment champion, and they believe that shrinking resources are to blame, according to a report released this morning by the Knight Foundation in partnership with the American Society of News Editors, Associated Press Media Editors, and the Reporters Committee for Freedom of the Press.

The project, which grew out of efforts by Knight and the other groups to understand how the industry is responding to its changing economic and legal circumstances, polled newsroom leaders about a range of media law problems. The 66 editors who responded, drawn from a cross-section of ASNE and APME members, were mostly high-ranking (80 percent at the editor-in-chief level) and from large print and online organizations (31 percent with circulations exceeding 100,000, and 44 percent with 1-10 million unique views per month online). A substantial share come from large newspapers. It’s not exactly a representative sample of American media as a whole—but as the report notes, these are the types of outlets that have traditionally been most likely to take on costly litigation.

“We wanted to know if, in the digital age, leading newspapers were still taking on First Amendment challenges,” the report says.

As I’ve written before, the news industry, especially newspapers, has shaped American media law for decades by paying the bills to bring the big cases—to unseal court papers, to open meetings, to protect confidential sources, and to compel the disclosure of public records. But in the past decade, as the report notes, economic trends have put pressure on the capacity of news organizations to litigate and otherwise to take stands to advance free speech and press rights.

The implication of the survey is that serious problems are not far off: 53 percent of the editors agree that “news organizations are no longer prepared to go to court to preserve First Amendment freedoms,” and 65 percent say the industry as a whole is weaker than it was 10 years ago when it comes to pursuing legal action related to free expression.

Here are some of the other key findings:

  • Less Money, Mo’ Problems: Among the editors who said the industry is “less able to go to court” today than 10 years ago, 89 percent said economic pressures are the main reason. 27 percent said they had been unable to bring cases at their own organizations because they could not afford it. One editor added: “The loss of journalist jobs and publishers’ declining profits mean there’s less opportunity to pursue difficult stories and sue for access to information.”
  • First Amendment in the Digital Age: An overwhelming majority of the editors (88 percent) agreed with the statement, “In the digital age, there are many unsettled legal questions about the scope of free expression.” Meanwhile, 71 percent agreed with the statement, “First Amendment law has not kept up with technological developments.” And 59 percent disagreed with the statement, “First Amendment law is largely settled.”
  • Offensive vs. Defensive Cases: The poll asked the editors about their experience with “defensive” cases (i.e., “defending against a libel lawsuit, a lawsuit charging invasion of privacy, government subpoenas, etc.”) and “offensive” cases (i.e., “seeking access to information, public meetings or court proceedings, challenging statutes or policies that hamper newsgathering, etc.”). Most editors said their organizations are capable of defending themselves “about the same” as 10 years ago, but 44 percent said they were less capable of bringing offensive cases. Among the organizations that did bring offensive cases in the past two years, the most common were efforts to obtain government information. Among the organizations that litigated defensively in the same time period, the most common issues were subpoenas seeking access to unpublished materials, followed by libel claims.
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Notably, in a news release related to the report, the Knight Foundation said the survey highlights “the need to understand the changing First Amendment landscape” and that it was granting $200,000 to the Reporters Committee to “advance that understanding through legal action.” The idea is to use the funds to support journalists who pursue media law cases that could chart new territory, with a focus on local and digital cases.

“The survey shows that editors are concerned about digital media and whether the law is keeping pace with those media,” Bruce Brown, executive director of the Reporters Committee, told CJR. “We also understand that it can be difficult for journalists and news outlets in small communities to bring cases. That’s why we’re focusing on local and digital opportunities.”

The Reporters Committee plans to use the funding to create a new attorney position dedicated to those cases. Asked where the Committee hopes to chart new First Amendment territory, Brown said it could be digitally-driven work in any number of areas, including encryption and privacy, FOI cases involving electronic access to public records, and rulemaking related to data journalism.

“Basically, we want to develop the next generation of First Amendment law,” he said.

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.