The following are Reporters Committee for Freedom of the Press executive director Lucy Dalglish’s prepared remarks for her First Amendment Lunch speech, given on Saturday, June 27 in Tucson. This is not a transcript.
I’d like to talk about newsgathering, democracy, politics and money.
Our founders believed we had a fundamental human right to speak our minds. In the First Amendment to the Constitution, they wrote: “Congress shall make no law … abridging freedom of speech.”
Then they added another clause: “and of the Press.”
They also thought we had a right to freedom of the press. In their time, that meant people who had access to a printing press and a method of distribution.
Why is the press clause there? It’s certainly not because our founders thought that those who publish the news and their own opinions were special people. They’re not.
No — it’s because in this country self-determination is a fundamental human right.
And how do we govern ourselves?
We vote.
Our system of democracy really operates on information and faith.
Not the religious kind of faith. Rather, it’s faith and confidence in our system of government: Faith that voters will seek out truthful information about the issues of the day, and faith that they will use it to make informed decisions at the ballot box.
But they can’t do that in a vaccum. Voters don’t have the time or resources to gather all of that truthful, independently collected information on their own.
Rather, we count on the independent, non-government sponsored press to do it for us.
That system of a watchdog press has served us well for more than 200 years.
This role has been filled by thousands of local newspapers; hundreds of broadcast stations; hundreds of “alternative” publications like those you work for; and a host of other news organizations that employed well-trained seasoned professionals that I tend to consider the institutional “mainstream media.”
But, as you know, these days, more and more people are able to serve that “press” function than ever before because of the internet. You don’t need a printing press or a broadcast license. Major foundations are handing out grants to encourage these volunteer “citizen” journalists. In many respects, this will serve us well as a nation.
But I’d like to share with you some observations that have kept me up at night lately.
It’s very popular to bash the mainstream media. The rap on mainstream media is that they are stifling voices because they’re owned by just a very few rich conglomerates.
But from where I sit, here is what mainstream media has done in the last 45 years on behalf of the public:
1. They have trained thousands of people to gather information, interpret it and disseminate it to the public.
2. They fought for narrowing libel law so that our elected officials couldn’t shut them == or anyone else — up just for writing critical stories. Rather, after New York Times v. Sullivan in 1964 public officials who have been defamed have to prove the mistake was done intentionally.
3. The mainstream media led the battle for federal open meetings and open records laws. Did you know federal FOIA was introduced by a progressive California congressman named John Moss and pushed heavily by the American Society of Newspaper Editors back in the 1950s. It took ASNE more than 10 years and lots of money to get that law.
4. They fought to open courtrooms all the way to the U.S. Supreme Court. Let’s look at some of those cases. Nebraska Press Association v. Stuart in 1976 stands for the proposition that if you learn something in an open courtroom, a judge can’t gag you from reporting it. Richmond Newspapers v. Virginia in 1980 says the public has a First Amendment right to attend criminal trials except in the most extreme circumstances. The two Press Enterprise v. Riverside cases in California in the mid-1980s stand for the proposition that the public can’t be kicked out of pre-trial hearings or jury selection. What do those cases have in common? They were fought by small and medium-sized local newspaper owners.
5. Remember the Pentagon Papers? The New York Times and the Washington Post led the effort in 1970 to make clear that, except under the most extreme circumstances, government may not censor information via a prior restraint on speech or the press.
Even the most recent infamous prior restraint on Wikileaks in federal court in Californa was not struck down until the mainstream media sunk a significant amount of money into fighting that legal battle on behalf of a coalition of unknown bloggers.
6. The mainstream media has been heavily involved in efforts to protect whistleblowers and other confidential sources through state and federal shield laws and whistleblower protections.
7. And, there is not a single state open meeting or open records law or case in any state in America where the local news media were not the driving forces representing the public’s right to know.
Media companies, mostly newspapers, paid for all of this. It wasn’t cheap. They made money, to be sure. But they spent a lot of that money fighting for the public’s right to know what its public and private institutions were up to. They spent the money on your behalf. You may have noticed your local media have hit hard times. It’s been much worse than the economy as a whole.
The Rocky Mountain News, Kentucky Post, Cincinnati Post and Seattle Post-Intelligencer have closed.
The Detroit newspapers are only offering home delivery three days a week.
The Star Tribune in Minneapolis, the Philadelphia Inquirer and the entire Tribune Co. are in bankruptcy.
The Newspaper Association of America laid off half of its entire staff last month.
In the past three months, I’ve visited state houses in Texas and Florida. The legislative press corps in 2009 is less than half what it was two years ago in both states.
The Boston Globe is in limbo. I was giving a speech at the Globe about a month ago on the day the Newspaper Guild was voting on contract concessions. People were scared.
And so am I. I’m afraid. Very afraid that the folks we’ve always counted on to push for open government won’t be able to continue this battle.
I’d give anything to once again have a big bad-ass Knight-Ridder Washington Bureau out there doing what it takes to find out what really happened when we went to war in Iraq. They were far ahead of the game. And they launched a federal FOIA battle early on in the war on terror to find out how we’ve been treating out wounded veterans.
I’d give anything to have Copley Newspapers in San Diego back on the scene. Last year, they fought hard to open a federal criminal case that hid the prosecution of a major figure in the Duke Cunningham corruption case.
Last month, the National Freedom of Information Coalition asked about a dozen media lawyers nationwide whether they’ve noticed a decline in the ability of media companies to go after public records.
Here’s what one of them in the Midwest said:
Without doubt, news organizations are prosecuting fewer enforcement actions under (our state’s) open meetings and public records acts.
What’s worse, increasingly state and local public officials know they can withhold information and access with less risk of getting called on the question by once aggressive newspapers and broadcasters.
In the last 12 months, we have been consulted just as frequently about denials of access. Yet, all sides know that to go the next step to sue simply is not likely under today’s budgetary constraints.
First, because (our) newsrooms no longer have access to staff or corporate counsel, journalists must engage outside counsel for advice and to prosecute access cases.
And, as public employees more frequently go on the offensive to preserve secrecy, their efforts benefit from an emerging imbalance in weaponry.
A seemingly endless supply of government staff lawyers is available to marshal arguments against access and to impose impediments to openness.
As a result government incurs no out of pocket costs in saying no, unless a lawsuit with a fee award follows.
In days past, journalists could back a threat of litigation with an occasional lawsuit and even a fee recovery from time to time. In the early days of the access cold war, we had a balance of power because editors and news directors could muster a budget for fighting the right fights or tackling the bigger issues.
That balance is rapidly eroding with shrinking media revenues, audience and staff.
In one instance, the choice for the editor and publisher came down to budgeting discretionary legal fees of $50,000-75,000 to hire my firm to fight an important access issue or to forego the upfront costs for litigation in an effort to save a staff position or two for another year.
Rightly, the money was placed toward job retention.
But, surely there are greater societal costs.
First, access in that instance was lost. Misconduct went unchallenged, openness and accountability were illusory and readers were deprived of important information.
Longer term, without the press serving as the enforcement arm for the sunshine laws, more government officials will deny access with impunity, especially because government seldom enforces the access laws against public officials who violate them.
Who will suffer when these mainstream media companies no longer launch these battles?
We all will.
Because those folks that in my office we often refer to as “Jammie Surfers” — the independent volunteer reporters who work from their basements late at night and may or may not have training in collecting and reporting news also don’t have any money. They’re not getting paid, remember? They’re doing journalism ostensibly because they like to write. They like to spout off. They like to have conversations or debate with people online.
While I’m on that topic, let me spout off a bit about a pet peeve. Citizens in this country have no idea where their news is coming from.
An acquaintance of mine, Laura Frank, was recently out of a job when the Rocky Mountain News folded. Astonishingly, she says several sources and friends told her, “We’re sorry your newspaper folded. But don’t worry. We’ll still read your stories on the internet.”
Are Americans really that dumb? Don’t they know that the Googles and Yahoos of the world rely on The Associated Press, which largely relies on stories from newspapers and broadcasters all over the country?
I was on a panel a couple of months ago in Long Beach with Bruce Wallace, foreign editor of the LA Times. He had spent most of his career traveling the world and reporting for a variety of international publications. He told the audience of about 700 college students:
“In all my years as a foreign correspondent, I never ran into a correspondent from Google.”
My friends, in the very near future, our financially failing newsrooms will not be there to fight the court and legislative battles to keep courtrooms, records and meetings open.
No one will be there to ensure you will continue to get access to truthful, independently gathered information that you need to make decisions at the ballot box.
With all due respect, as well-intentioned as your local judges and elected officials may be, they’re not going to be able to do it on their own. We need a watchdog press.
Who will keep a check on government?
Who will keep a check on big business?
Do you want to know which banks are getting your tax dollars and whether the money will be spent wisely?
We have a problem. A really big problem.
