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SESSION THREE: The Future of Journalism: Law and Ethics in a Changing Media Ecosystem

These pages are notes taken by Bill Densmore of the Donald W. Reynolds Journalism Institute while attending and participating April 9, 2010, in a one-day seminar at Harvard Law School: "Journalism's Digital Transition: Unique Legal Challenges and Opportunities." The event was organized by the Online Media Legal Network of the Berkshire Center for Internet & Society at Harvard. There are three panels; we'll build a page on each. THE CONFERENCE AGENDA HAS DETAILS ON PARTICIPANTS AND OVERVIEW TOPICS.

Phil Malone, a Harvard Law clinical professor, is moderating this panel.


  • Jon Hart, Dow Lohnes PLLC, general counsel to the Online News Association
  • Dan Kennedy, assistant professor, Northeastern University School of Journalism, WGBH commentatory
  • Josh Stearns, program manager, and
  • Lucy Dalglish, executive director, Reporters Committee for Freedom of the Press
  • Rob Bertsche, Prince Lobel Glovsky & Type, LLP and counsel to New England Newspaper & Press Assn.
  • Cameron Stracher, co-director, Program in Law and Journalism, New York University


Malone ask each of the panels to provide their summary of the issues.

  • Jon Hart: He congratulates Berkman and David Ardia on putting together the Online Media Legal Network. His career has focused on people trying to figure out how to make money doing journalism. He thinks there will be a mix of profit and non-profit going forward.
  • Dan Kennedy: He thinks non-profit will be an increasingly important part of the mix. He cites the "small, cheap, fast, foundation-supported journalism" of the New Haven Independent as compelling.

Kennedy: He thinks one problem to discuss is the prohibition against non-profits making political endorsements. "It's a matter of free speech, Congress shall make no law -- what part of no law do you not understand." It was in 1954, when Lyndon Johnson was running in a race in which right-wingers were using McCarthy-like tactics to defeat Johnson. Johnson pushed through a law that prohibited non-profits from working for or against political candidates.

Paul Starr suggested making an exemption for news organizations. "But I'm going to suggest something a little bit more sweeping, and that is that we should just undo the blanket prohibition." He thinks we should remove this restriction from everyone, just just journalists.

  • Josh Stearns: He's delighted that people are now talking about the role of public policy and journalism. He's interested in news sharing and credentialing. He cites a non-traditional news organization that has just been pushed out of the state capitol in Minnesota. He's interested in non-traditional ownership models and PEG access.
  • Lucy Dalglish: She says no reporter who was in legal trouble has ever had to pay to get legal help from RCFP. She has some major concerns -- "Virtually all of the issues we are dealing with today have to do with money . . . these days, nobody is making enough money."

What does that mean, she asks? Most court cases to advance news gathering were brought by a news organization. "Nobody is going to be out there to fight for this . . . . "

As to access: "Those people in control of those records, those courtrooms, they know you don't have the money to fight them, so they are acting with impunity." In New York, courts are arguing that because there is personal information in court records, "We're just not going to make them public anymore." Her warning is that we have to deal with the consequences of technology. Reporters are gleeful about what the internet can do; Dalglish says the officials are aghast.

She is skeptical about non-profits because she doesn't see how they are sustainable. "Nobody else wants to come in and sustain a program that has somebody else's name printed on it."

  • Rob Bertsch. He thinks "the model of the objective news source is dying a quick death . . . we have an incredible mess out there . . . and frankly I think it is more like it was at the birth of the First Amendment than we have ever had. That's pretty interesting to me, I think it's a fruitful time . . . all I want to do is put on my seatbelt and ride with it."

He thinks local news coming from newspapers "is actually going to hit a renaissance. I think it is going to be more important than ever . . . we are going to find that is where the real action is in developing journalistic quality."

A couple of observations by Bertsch: Increasingly we have to realize the First Amendment is a "local ordinance" in a world sense. "I don't know where that ends up but I think it's something we all have to pay attention to." Thinks like libel law in England or Indonesia.

He worries about an increasing concern for politeness. Judges are saying "that's not nice, that's not a good thing to do. Some of those things may be true, but I don't think that's the law."

At a recent meeting, he was concerned that police chiefs wanted to talk about the damn comments and the terrible things were saying about them in comment sections.

  • Cameron Stracher. He says he's concern that new media is undermining the protections of old media. "In trying to get protections for all we lose some of the protections that we have come to take for granted . . . when you push the limits we realize the freedoms we had are not as broad as we thought they were."

For example, in passing a federal shield law, does that mean every blogger gets rights of evidentiary privilege that they didn't have before. "That may lead to the demise of the federal shield law (idea)."

FCC policy and the future of journalism

Josh Stearns overviews multiple initiatives in DC having to do with the future of media. I'll provide a link to his summary here later.

The problem: Funding the business of journalism: Role for government?

Malone asks if there is a role for governmetn in funding journalism?

  • John Hart says Michael Zimbalist, who started the Online News Association, says newspapers lost $1.2 billion in classified revenue, but Craigslist only monetizes $60 million of that.
  • Stearns says that David Westphal of USC did some research and said government subsidizes the government to the tune of about $2 billion a year in postal subsidies, legal notices and other things.
  • Dalglish says legal notices are a huge subsidy for small papers. "Some of those newspapers -- just gone," if those legal notices go away.
  • Says Kennedy: "No. The first role of journalism is to keep an eye on government, not jump in bed with government." He says any direct subsidies are very problematic. He cites an idea from Dan Gillmor -- fairly substantial government subsidies to get broadband into every home. "The let news organizations take it from there, but at least the road will have been opened for them." He says it is conceptual similar to postal subsidies. "There's real parallels there that you can see . . . but direct government subsididies, absolutely not. That's a very dangerous road to go down."
  • Bertsch agrees and says no to "direct government subsidies." He says he has trouble understanding the principle against putting legal notices on line. Even though he knows that is not in the interests of a lot of his clients.
  • Stracher says no.
  • Stearns, from "I think we can't say no, unless we are ready to close down NPR and PBS, which we are not ready to do . . . first, can we create political fire walls . . . or can we create a public-private foundation . . . that would then put the money out. I think we need to explore this question more. There are examples abroad we are exploring now . . . I am not ready to say no yet."
  • Dalglish says the fact that NPR works as well as it does is a 20th-century miracle.
  • Kennedy says NPR could survive without government subsidies and PBS couldn't. "And I think those two are directly related."

On limitation of endorsing by non-profits

Malone asks, in this new-media world how important is it that organizations benefitting from non-profit status, how important is it that they play the role of endorsing candidates?

  • Kennedy says he's talked with Paul Bass about it of the New Haven Independent. He says he doesn't want to endorse. "But as more and more local journalism becomes non-profit, you are talking more and more players off the field in terms of having a vigorous discussion of politics."
  • Stearns: He suggest the government funding something like the Knight News Challenge -- maybe money that ran through Knight. "Could we fund that kind of experimentation that would not get at content? . . . could we create a training or technical assistance fund?"
  • Stracher: "I think the problem is no matter what you do it is fraught with politics." He says "net neutrality" is a political term. He says the interstate highway system lead to the decline of rural areas. He agrees government should have a role in building infrastructure, however.

What about the backlash risk?

  • Dalglish: Once information is released it goes viral. Judges worry about protecting jury pools. The judge is worried about enpaneling a jury, so they feel they have to protect the privacy and identity of jurors. Two hundred years ago that wasn't issue. Judges don't like technology who have been stunned by jurors looking up things on their mobile device, or "tweeting" what they've learned in court. Judges love control, and that includes all of the information related to a case.
  • Hart thinks the Federal Trade Commission is going to propose a bill to regulate behavioral advertising. It could help media companies in some ways by helping consumers manage privacy.

Update on the federal shield law

  • Dalglish says U.S. Sen. Richard Durbin, D-Ill., is blocking getting a revised shield law proposal to the senate floor because he wants some language in it that would include a test of the "experience" of a person who is going to be entitled to shield under the law. She discusses with Josh Stearns about whether this is credentialing.
  • Stearns says in committee there has been some discussion of a earnings test (as in how much to you earn doing journalism), which he fears would rule out a lot of nonprofits.
  • Bertsch: We can't have a czar decide who is a jouranalist and who isn't. He thinks the only conclusion we can reach is, "We are all in this together," and, in effect, everybody is a journalist.
  • Dalglish: Got calls from New York City and Westchester County -- they now can bring cell phones, cell phone cameras, laptops and can't take photographs in hallways in city hall. "What I was able to put together in the last six months where these calls have been trickling in . . . it is usually the case where some citizen comes in with a geeky camera . . . . " She sees these as cases of harassment from the point of view of city workers who think of it as a hostile work environment. Thinks like Gawker. "They just ban it for everybody."
  • Galglish notes a nonsequetor: They took out pay phones, now they can't use cell phones in the old pay-phone booths.
  • Kennedy: What really strikes me is this notion that we don't want to push the First Amendment too far. The FA is not for journalists, it is for everybody. Some of the problems about credentialing are difficult ones.

Malone asks: Will Section 230 (CDE) go away?

There's a consensus maybe not, but warns Dalglish: "I just think we haven't seen a nasty enough case."

And add Jon Hart quickly: "Involving a senator's daughter."

  • Stracher: He is worried we are going to lose some of these cases. When you lose them, you make bad law. He has lost some of them and he regrets filing them. Bad cases make bad law. It used to be when he was at CBS, the network always fought subpoenas. Now news organizations are more nuanced in how they are trying the handling of subpoenas. He says that is causing less "bad law" to be made.

Discussion about SLAPP lawsuits

Discussion wrapped up with a discussion of strategic lawsuits against public participation (SLAPP).

Questions and answers

  • Kennedy says a lot of the talk about subsidies is about preserving the journalism order that we have had up to this point. Aside from getting his Northeastern students jobs, he couldn't care less about that.

He thinks the big expansion of journalism from 1960 on was an anomaly. He says the Washington Post newsroom, after rounds of cutting, "is now about the size it was when they broke Watergate." He says The Boston Globe now seems to be in some equilibrium.

  • Stearns: Says the years Kennedy sites are the years of media consolidation also. So we shouldn't be careful not to celebrate that growth. He says nobody has done the big "market-failure analysis" that needs to be done. Folks agree there is not enough foundation money -- and perhaps not enough advertising money either -- to support jouranlism. "I do believe we are facing a market failure." He says the difference with librarians is that librarians are funded by the taxpayers.
  • Stracher: In some ways Watergate and Woodward and Bernstein was the beginning of the cult of the rock star in journalism. "May be are in an appropriate winnowing where we are returning to a more normal state."
  • Stearns: Someone said earlier of you are paid by government, you are going to kow-tow to government. He cites Katie Couric sidling up to power as an example to the contrary.
  • Kennedy: "We tend to cover many stories as if they are sporting event."
  • Stracher: "Cozing up to political powers is nothing new." Reporters used to pay cards with Harry Truman. And they kept Roosevelt's disability secret.