Coming of age as a reporter in the post-Watergate era there were several things the old-timers did not like about us kids: we had never used a linotype machine, we drank water not whiskey, and we each knew how to send a Freedom of Information Act letter demanding documents from the government. Woodward and Bernstein had inspired us, and we were ready to fight the government for access to records at every step.
Unfortunately, the financial fire consuming daily newspaper journalism has consumed profits, jobs, and our resolve to fight tooth-and-nail to preserve our First Amendment rights.
Fortunately, some innovators, including the First Amendment Coalition in San Rafael, Calif., are developing possible solutions so that the journalists’ zeal for public access cases doesn’t die when the profits sink.
It is easy to understand why newspapers won’t risk thousands of dollars in a legal battle at the same time they are deciding how many employees will be employed next week. A 2016 study released by the Knight Foundation in cooperation with a number of large news organizations showed editors believe they are losing confidence in their ability to remain a champion of First Amendment and access cases. They simply don’t have the money to fight these cases.
In an age where technology allows government officials to bury information and to conduct public business by text message, these access cases have never been more important. But who has the money to pay the lawyers to fight them?
One solution might be to imitate the First Amendment Fellowship program started by the FAC in California. Glen A. Smith, who has been battling First Amendment cases for 30 years, is the first of these Legal Fellows at the FAC. I met Glen early in the 2000s when our newspaper demanded workers compensation records from the local sheriff’s department. When Smith got us the records, we reported that dozens of deputies routinely developed injuries covered by workers compensation just months before they hit retirement age. Their rehabilitation from these injuries usually took several years at which time they would return to work and then retire—at a pension much higher than the one they would have received before the injury. I don’t recall what we spent on that battle, but it was worth it.
Smith acknowledged that the FAC Fellowship is “at most, the classic finger in the dike. We can try to fill the gap, but let’s face it, newspapers are not spending money on these cases as they used to.”
When you fail to fulfill the watchdog role your value to the readers declines. It contributes to the downward spiral of the industry. Government officials can hide records. Courtrooms can be closed to public access. Lawmakers can discuss how they plan to vote with other lawmakers all by text message using an app called “Confide” that erases messages after they are read. And if the press is not asking for these records to be unsealed, these courtrooms to be open, these messages to be made public, then government officials can do as they please.
To some extent, Smith said, the legal profession is to blame. The legal bills were far too daunting. When a reporter on our 35,000-circulation paper in Albuquerque, N.M. won the Pulitzer Prize for National Reporting, our legal bill in 1993 dollars was $125,000. Had we not been part of a large media company, I am not sure we could have afforded the bill.
The best hope for a revival of first amendment battles is a benevolent model by large non-profit, public interest groups: ProPublica, Reporters Committee for the Freedom of the Press, The American Civil Liberties Union, First Amendment centers attached to large law schools, and the fellow ship program at FAC. Some have started down this road. And a handful of large news organizations still fight access cases, although not as often as they did before.
Smith believes that the fellowship is in many ways like a start-up public advocacy group that received its first round of venture capital funding. To get more, it needs to show impact. If it wins some prominent cases, more dollars can flow into these centers. There are wealthy citizens who understand the need to fight these fights. And the remaining newspaper companies must hold firm to their obligations as the Fourth Estate.
Access and First Amendment battles are too important to this democracy to be slain by declining profits.
Tim Gallagher is president of The 20/20 Network, a public relations and strategic communications firm. He is a former Pulitzer Prize-winning editor and publisher at The Albuquerque Tribune and the Ventura County Star newspapers. Reach him at [email protected]