Litigation frustration

Leading editors are worried that the news industry’s ability to fight for First Amendment rights in court is waning, a recent report found.

In a survey of top editors from print and online newspapers, 65 percent said that news organizations are in a weaker position than they were 10 years ago to pursue freedom of expression cases. While the editors expressed more confidence in their own publications’ ability to take on legal cases, they tended to be more pessimistic about the state of the industry as a whole.

The report was released April 21 by the Knight Foundation in association with the American Society of News Editors, Associated Press Media Editors and the Reporters Committee for Freedom of the Press. Although not a scientific poll, the survey of 66 editors offers a glimpse into the mindset of industry leaders.

The Knight Foundation also announced on the same day a $200,000 grant to the Reporters Committee to help expand the Knight Litigation Project, which provides legal aid to journalists and news organizations pursuing newsgathering and First Amendment cases.

Economic constraints are often a formidable obstacle to journalists who want to pursue these cases. Of those who thought that the news industry’s ability to pursue legal action was declining, nearly nine in 10 cited money as the reason.

A majority of the editors, who were mostly from large newspapers, said that their own organizations hadn’t backed away from pursuing any legal cases due to lack of resources. But economic pressures could pose more of a problem for smaller organizations looking to litigate First Amendment cases.

“The digital disruption has uprooted the traditional business model for journalism, making it harder for newsrooms to pursue First Amendment cases and ensure the rights that it protects are upheld,” said Shazna Nessa, Knight Foundation’s director of journalism, in a press release.

Of the 27 percent of respondents who described money as an obstacle for their own organization, several said that Freedom of Information Act requests posed a particular challenge — whether because the fees were prohibitive or because challenging denied requests would require a costly court battle.

Some editors also pointed to a decrease in watchdog journalism throughout the industry as a reason journalists may be pursuing fewer cases.

“News organizations may be increasingly pursuing stories that are less likely to result in legal issues,” the report said.

First Amendment cases are also posing unprecedented challenges for journalists in the digital age. Most of the editors agreed that new technology has left open many questions about First Amendment law.

Large news organizations seem to be holding their ground in the face of these challenges: A majority of the editors engaged in some legal activity over the two-year period from 2014-2015. Seventy-one percent of editors said that their ability to defend themselves against lawsuits or government subpoenas was the same as it was 10 years ago. Editors who had to defend themselves in court during the past two years most commonly faced subpoenas for unpublished materials, as well as libel lawsuits. Some also fought court orders that aimed to prevent digital content distribution.

Large newspapers are also continuing to proactively challenge restrictions on freedom of expression, but 44 percent of editors said their organizations were less able than 10 years ago to pursue these cases. Those who did most commonly went to court to seek access to information, including public records, sealed court records and trial materials.

The vast majority of editors used private law firms or in-house counsel to take on their legal cases. Only a handful used pro bono services, with 6 percent using the pro bono services of a private law firm and an additional 6 percent using a law school or nonprofit.

The report’s authors acknowledged that the opinions of these top editors may not necessarily represent the entire industry. But the survey suggests a growing concern among leading news organizations that the industry may be in danger of losing the ability to vigorously pursue First Amendment cases in court.

“While not a scientific sample, this quick poll shows the need for a great deal more study and understanding of the changing First Amendment landscape,” the report concluded.

Eric Newton, a consultant to the Knight Foundation who co-authored the report, said that after the results were published, some journalists were unsurprised to learn that editors are worried about newspapers’ ability to take on First Amendment cases.

“Others used the report to promote creative solutions that are currently under-used by the industry, especially the growing trend of nonprofits helping with legal work,” Newton said in an email.

“It is hopeful, a parallel trend to the increase in nonprofit journalism,” he added.