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US News Editors Find It Increasingly Difficult To Defend First Amendment

A survey of editors from print and online publications found most news organizations are weaker in their ability to defend the right to freedom of the press than they were ten years ago.

The Knight Foundation conducted the survey [PDF], along with the American Society of News Editors (ASNE), Associated Press Media Editors (APME), and Reporters Committee for Freedom of the Press. Sixty-six editors were surveyed.

Around half of news editors indicated their news organizations were “no longer prepared to go to court to preserve First Amendment freedoms.” Eighty-nine percent indicated this was because defending the First Amendment is too expensive.

Forty-four percent of editors indicated their news organization was less able to go on the offense and sue to open up access to information.

“Newspaper-based (and especially TV-based) companies have tougher budgets and are less willing to spend on lawyers to challenge sunshine and public records violations,” one editor acknowledged.

Another editor declared, “The loss of journalist jobs and publishers’ declining profits means there’s less opportunity to pursue difficult stories and sue for access to information.” The costs of litigation constrain organizations.

“Government agencies are well aware that we do not have the money to fight. More and more, their first response to our records request is, ‘Sue us if you want to get the records,'” one editor stated.

The Associated Press reported in March, “The Obama administration censored materials it turned over or fully denied access to them in a record 596,095 cases, or 77 percent of all requests. That includes 250,024 times when the government said it couldn’t find records, a person refused to pay for copies, or the government determined the request to be unreasonable or improper.”

State legislatures throughout the United States frequently exempt themselves from public records laws, making it even more burdensome for news organizations to obtain records.

However, there also has been somewhat of a shift in news media. “Watchdog journalism” has declined substantially. With “less investigative work,” there are less incentives to wage legal battles for records.

“So many newsrooms do not cover government to the extent they used to. Instead, they are focusing on ‘passion’ or ‘franchise’ topics, and they often are not topics that require record-based reporting,” one editor responded.

The most common attack on First Amendment freedom is a subpoena seeking access to “unpublished materials.” Nearly half of editors said they have confronted this situation recently. Less frequent are attacks in the form of libel lawsuits, censorship efforts, or pressure to reveal confidential sources.

This report from the Knight Foundation comes the same week that Reporters Without Borders (RSF) released its World Press Freedom Ranking for 2016. The United States moved up to 41st out of 180 countries, but RSF noted the rise in ranking should not mask “overall negative trends.”

“The main cause for concern for RSF continues to be the current administration’s obsessive control of information, which manifests itself through the war on whistleblowers and journalists’ sources, as well as the lack of government transparency, which reporters have continually criticized,” RSF declared. “The Obama administration has prosecuted more whistleblowers under the Espionage Act than all previous administrations combined. Jeffrey Sterling, a former CIA operative, was convicted solely on the basis of metadata in January 2015 of disclosing classified information to James Risen and is now serving a 3.5 year prison sentence.”

It also is a “cause of concern” that journalists covering campaign events during the 2016 presidential election have been “restricted by candidates” and insulted or bullied on social media. Plus, there continue to be arrests of journalists covering Black Lives Matter protests and other demonstrations.

Given the lack of resources to defend the First Amendment, it is easy to presume many news editors would err on the side of caution and not pursue journalism, which could result in legal liability. In fact, back in 2014, a survey by two Indiana University professors found fewer and fewer U.S. journalists believe using “confidential business or government documents without authorization” is acceptable.

The Knight Foundation awarded $200,000 to the Reporters Committee for Freedom of the Press to help the organization expand its work “providing legal assistance to journalists and shaping a new path for free speech law.” The funding will be used for cases, where reporters can go on the offense and expand First Amendment protections.

As the Knight Foundation concluded, when representatives of the First Amendment’s “most important historic defenders say they are worried, all Americans should be worried.” Indeed, it is clear the First Amendment has suffered over the last decade, and there is a great need for journalists to fight back as hard as possible.

Andriy Parubiy, on cover of his book "A View From The Right"
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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof Press. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."