Editor’s Note: RonNell Andersen Jones is the Lee E. Teitelbaum Chair and Professor of Law at the University of Utah’s S.J. Quinney College of Law. The opinions expressed in this commentary are solely those of the author.
Journalism in America today faces an aggressive assault on its legitimacy. The President declares the news media “the enemy of the people,” and those in his inner circle routinely label any coverage they consider negative or unflattering as “fake news.”
Defenders of a free press have rightly pushed back, championing journalists as the watchdogs of democracy. They urge moral and financial support for the vital work of investigative reporting and news gathering.
But there is another valuable function the news media have played in our democracy, and thus another risk that we face when the press is attacked or diminished. For more than 50 years, newspapers and other traditional media companies have played a critical role as constitutional defenders and enforcers.
They are singularly responsible for establishing some of the most important legal protections that all of us enjoy. Without traditional news organizations instigating, coordinating and financing legal battles for free speech and government transparency, most of the important advances in these areas simply would not have happened.
Opening government to the people
Take the case of Richmond Newspapers, Inc. v. Virginia, a landmark US Supreme Court case holding that absent extraordinary circumstances, the First Amendment guarantees citizens access to courtrooms in criminal cases.
The case began in 1976, when John Stevenson was convicted of murder in Richmond. His conviction was later reversed, and a second and third trial both ended in mistrial. On the eve of the fourth trial, in late 1978, the defense attorney asked that the press and public be barred from the trial, and the prosecution did not object. The trial judge closed the courtroom, relying on a Virginia law allowing judges to exclude the press and the public. The only voice of opposition was from the local newspaper company, Richmond Newspapers.
At great expense, and with the support of other mainstream news organizations, the midsized newspaper company fought all the way to the US Supreme Court. Citing the long history of open criminal trials and the importance of transparency in any system of justice, the court held that the trial judge had acted unconstitutionally.
This was not a narrow victory based on rights specific to the news media. Rather, it was a bold judicial statement on the needs of “people in an open society” and the value of public observation of government proceedings. We don’t expect that our institutions be infallible, the court said, but it is hard for us to accept what we are prohibited from observing. Although no specific constitutional provision demands that trials be open to the public, the freedoms specified in the First Amendment all point to a core goal of communicating the work of government to the people.
The court held that open trials are central to that same purpose. By “guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials, so as to give meaning to those explicit guarantees.”
In other words, the fruits of the newspapers’ years of costly litigation were that everyone has the right to witness a criminal trial. That right was won for all of us by the press.
Paying the price to ensure our rights
This is just one notable example in a decadeslong trend. The modern news media repeatedly and vigorously waged First Amendment and open-government crusades – for us. You have a right to decide the content of your own speech, to communicate without prior restraint by the government, and to observe a wide variety of government proceedings because a news organization’s hard-fought and expensive legal victory became yours, too.
The press went to the mat not only in the courts, but also in legislatures. In every state, news organizations were the major force behind today’s open-meetings laws. In a long campaign stretching from the 1950s to the early 1980s, news organizations banded together to push for passage of statutes that keep public officials in the public eye and require that the business of government be conducted transparently.
The efforts varied in their timing and content, but always were driven by local press associations with help from larger national journalism organizations. Often the laws were enacted because the newspapers coupled their lobbying efforts with the use of their publications to galvanize public support.
Thanks to the news media, all 50 states now also have “Sunshine Laws” that give all members of the public the right to request important public records from state and local governments. Likewise, it is almost entirely because of the efforts of news organizations that we have a federal Freedom of Information Act.
Shedding light on democracy
Journalist groups initiated the lobbying effort, testified in support of the bill, and pushed relentlessly for the legislation as three successive administrations stalled it. The US government now answers nearly 800,000 FOIA requests each year. Many of these requests are made by veterans seeking records or individuals making Social Security Administration requests — ordinary Americans accessing their government through a tool that news organizations fought to bring into existence.
In each of these areas, had the news organizations not been in a position to lead the charge and finance the movement, the public losses undoubtedly would have been significant. The light in our democracy simply would not shine as brightly. And, of course, these efforts are ongoing battles, ones that cannot be fought once and permanently won. There is a serious risk of retrenchment if the traditional press’ decline leaves it without the resources to continue these struggles for our freedoms.
Unfortunately, we already see alarming evidence that this is happening. A recent survey of editors at the nation’s leading news organizations found that 65% believed “the news industry [is] ‘less able’ to pursue legal activity around First-Amendment related issues than it was 10 years ago,” and that a majority agreed that “[n]ews organizations are no longer prepared to go to court to preserve First Amendment freedoms.”
Almost half reported that their own news organizations were less likely to sue to vindicate access rights or other freedoms than in the past. Financial struggles and waning support for traditional journalism are costing us on more than just the news gathering front. They may also be costing us our constitutional rights.