Newspapers were at the center of many free speech and access-to-information battles of the last century, but those days are all but done. Most newspapers are a husk of their former selves, and their legal budgets are as desiccated as the classified ad sections that once made them rich.
This raises the question of who will fund high-stakes public interest battles instead. Will it be the tech giants, like Google and Twitter, whose platforms have largely supplanted the newspapers as a daily source of information? Or does the tech industry’s fixation with growth and data control preclude it from truly taking up the public interest torch?
Opinions are mixed. Some think an important element of public interest advocacy will disappear with the newspaper industry. Others, meanwhile, express hope that companies born of the digital world are already learning to step up as advocates of the public interest.
Twilight of the newsroom lawyer
Adam Liptak, a lawyer and Supreme Court reporter for the New York Times, called attention in 2009 to the problem of newspapers’ shrinking legal budgets. His account showed how even small papers like the Press-Enterprise of Riverside, California had fought all the way to the country’s top court to win right-to-access victories, such as the public’s right to attend jury selection.
Liptak’s report also described how such papers had fallen on hard times, and how this was having a direct impact on public interest litigation. Five years later, needless to say, that trend has accelerated.
Today, many small newspapers are all but gone or survive as digital shells, while even big news names like USA Today and the New York Times have undergone rounds of belt-tightening.
In their place are tech juggernauts like [company]Google[/company] and [company]Facebook[/company], which are the first-stops for many people’s morning news. Meanwhile, new breeds of news entities like Reddit and BuzzFeed with massive audiences prefer to style themselves as “tech” rather than media companies.
And the prospect of these companies stepping into courtrooms to fill the public interest voids left by the newspapers is by no means assured.
“For Google and Yahoo and others it’s not part of the DNA as the way as it was for newspapers,” says Ken Paulson, a former editor of USA Today who is now President of the First Amendment Center.
Paulson added that budgeting money for public interest litigation was “part of the business model” of the newspaper industry but that, in the digital news world, companies’ overriding pre-occupation is building audience and selling ads.
On the internet, absent in court
“My old paper, the New York Times, hasn’t settled a case in 50 years,” said George Freeman, a long-time assistant general counsel at the Times, in a phone interview earlier this year.
That type of tenacity is what put the Times at the center of famous media law cases like Pentagon Papers and Sullivan. In the latter case, the Supreme Court rejected an Alabama politician’s attempt to use libel law to suppress civil rights criticism and, as a result, the Times established a broad free speech right to criticize public figures.
The New York Times is still around, of course, but it commands a smaller share of media attention in the age of news delivered on Facebook or Twitter by viral news sites. And notably, the names of these digital competitors rarely appear on court challenges that the Times and other traditional news brands continue to file when they believe the government is threatening the rights of the public and press.
Two recent examples include a challenge to FAA policies that forbid news companies from using drones in reporting, and a demand to gain access to White House visitor logs. In both cases, groups of news outlets banded together to file a challenge.
According to Robert Balin, a media lawyer with Davis Wright Tremaine, the media companies’ collective challenge is a long-established practice under which one news company will circulate a legal brief, and invite others — who are normally competitors — to add their names.
“It’s a cost-effective way for the media to be heard. It defrays the cost for individual companies, and law firms will cap the fees at a reasonable amount,” explained Balin.
So far, however, the names on top of the briefs continue are the usual ones — like the Washington Post or Gannett — rather than “born digital” media services like Twitter or BuzzFeed. (This may be changing, however, as Gawker and BuzzFeed were among the companies to add their names this year to an appeal brief over publisher’s liability for online comments).
Worse, in some cases, tech companies have acted as outright adversaries in access-to-information cases. Apple, for instance, recently sued to overturn an initial victory by Reuters over the sealing of hundreds of pages of court documents in an important intellectual property trial. And news companies, including the Times and the Atlantic, successfully sued earlier this year to prevent Google from sealing a public transcript of court proceedings.
Public interest in the digital era
The leading companies of the tech-driven media age appear, at first glance, not to have the same interest in acting as public advocates as their print predecessors, but a closer look reflects a more complicated conclusion.
As Freeman, the long-time Times lawyer, explained, the nature of media law itself is changing for two reasons. The first is as a result of the internet itself, which acts as a massive source of public access in the first place, and which has eliminated the need for some types of litigation in the first place.
In the case of libel, Freeman claims, the ability for near-instant corrections, and the fact that anyone can publish their own account of events, means that the stakes are lower when it comes to reputation and public image.
“In the old days, if your local paper said something bad and you can’t show up at the golf course course or church, all you can do is say ‘I’ve sued them.’ Now, you can blog.”
The second big change in the media public interest landscape, according to Freeman, are the sources of censorship and oppression.
These days, the threat to free speech and the public interest often comes in the form of copyright and other types of intellectual property claims, or from governments intruding on digital privacy. And, on this front, the track record of the tech industry has often been impressive.
Paulson of the First Amendment Center, who is critical of the tech industry’s lack of commitment to traditional public interest litigation, acknowledges its legal courage in other areas.
“Google and Yahoo, have global challenges to take on. For instance, Google has that [right to be forgotten] ruling out of Europe. That’s a brand new game, and something the Des Moines Register would never have to tackle. The major digital players also have to deal with government encroachment and spying. The upshot is that you don’t have as many people fighting for access to records in Des Moines. There are much more cosmic concerns.”
Thus, even as companies like Google are ambivalent or even hostile to some right-to-access causes, they may also be the public’s best hope in holding the government accountable in other areas.
One source of hope are the transparency reports that Google initiated, and that nearly every company in the tech industry is now publishing. The reports, which often provide country-by-country snapshots, have become an essential source of information about copyright censorship and government demands for user data.
And, on one of the most pressing public interest issues of the day — the government’s controversial PRISM program revealed by former NSA contractor Edward Snowden — it was a tech company, Yahoo, that was the first to fight in court.
According to a person familiar with Twitter and Google, the legal departments of tech companies include many people who are committed to fighting for free speech and the public interest. And like newspapers, their business model does align with free expression ideals, said the person who did not to be identified.
Tech and media, and the future of public interest litigation
The upshot for now appears to be that it’s too soon to conclude that the tech industry is unwilling to take up the same type of legal battles that were once carried out by newspapers.
The uncertainty may be due in part to the fact that the industry is confused over how to define itself. As it stands, media companies like BuzzFeed are calling themselves tech companies, while tech companies like Twitter and Yahoo see themselves as media barons.
These convoluted, overlapping definitions may in turn explain why no one, including the companies themselves, are sure about the moral place they occupy: are they champions of the public interest? Or are they simply technology purveyors with no more public obligation that a cat food company?
Balin, the media lawyer, is optimistic that tech companies will increasingly occupy the role of newspaper not just on the internet, but in court as well.
“The divide between tech and media companies is a false divide. I think more and more you’ll see them make a ‘good citizen type effort’.”