Protecting the Watchdog: Using the Freedom of Information Act to Preference the Press

The fourth estate is undergoing dramatic changes. Many newspaper reporters, already surrounded by a growing number of empty desks, are shifting their focus away from costly investigative reporting and towards amassing Twitter followers and writing the perfect “share line.” Newspapers’ budgets can no longer robustly support accountability journalism and pitching fights against the government. And so, while this busier and noisier media environment may have a desirable democratizing effect—more of us are able to participate in analyzing, debating, and perhaps even making the news—it has not succeeded in filling a role that print journalists have traditionally played well—keeping watch on the government. In order to perpetuate its historical role as watchdog, the fourth estate needs fortification. This fortification should come in the form of legal preferences for the press. Providing such preferences is not new, but it arguably has not been done in a significant way since postal subsidies were granted to newspapers in the colonial era. Today, with few exceptions, the law generally treats journalists just like any other citizens and news organizations like any other business. This article proposes a new way to preference the press—one that would not involve direct subsidies or discriminating between old media and new. Instead, it would give journalists a commodity that is fundamental to their work: information. To preference the press, this article looks to the Freedom of Information Act, the law governing when and how the executive branch discloses information to the public. While in theory the law facilitates the press’s access to vast amounts of information in the hands of the executive branch, implementation of FOIA has, since it was passed in 1966, been fraught with problems. Agencies routinely take months and even years to respond to journalists’ requests, making the process incompatible with a news cycle that is spinning ever faster. This article proposes focusing on FOIA’s expedited processing provisions to prioritize journalists’ requests over those of other requesters, expedite agency fulfillment of them, and ease the press’s ability to challenge late, incomplete, or otherwise unsatisfactory disclosures. It argues that any journalist filing a FOIA request seeking expedited processing should presumptively go to the front of the queue. At that point, there would be firm deadlines (where none exist now) for providing the journalist with the information requested. These small but significant changes to an already established provision of FOIA could help the media better serve as a watchdog at a time when that role needs protecting

Victims’ Rights in an Adversary System

The victims\u27 rights movement argues that because the outcome of criminal prosecutions affects crime victims, the justice system should consider their interests during proceedings. In 2004, Congress passed the Crime Victims\u27 Rights Act (CVRA), giving victims some rights to participate in the federal criminal justice system. This Note probes both the theoretical assumptions and practical implications of the CVRA. It demonstrates that the victims\u27 rights movement revisits a long-acknowledged tension between adversary adjudication and third-party interests. It shows, however, that American law has resolved this tension by conferring party or quasi-party status on third parties. Despite some pro-victims rhetoric, Congress reaffirmed the public-prosecution model when it passed the CVRA. Instead of making victims parties or intervenors in criminal prosecutions, the CVRA asks courts and prosecutors to vindicate victims\u27 interests. This unusual posture creates substantial conflicts for courts and prosecutors and undermines defendants\u27 rights. To avoid these consequences, this Note argues, courts can interpret the CVRA\u27s substantive rights narrowly. Rather than reading the CVRA as conferring broad rights on crime victims, courts should interpret the statute to simply require institutional courtesy toward crime victims. This interpretation reflects victims\u27 nonparty status and preserves the rights and responsibilities of courts, prosecutors, and defendants

Promoting Journalism as Method

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive. As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory—the First Amendment—as well the institutional press, once a key gatekeeper of that marketplace. Yet, both the institutional press and the First Amendment have limitations that hamper their ability to spark transformative change. Instead, this Article proposes that we look to journalism. Journalism is not the press or a journalist. Rather, it is a method and a practice—an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise. Seeding and propagating journalism could have numerous benefits. It could help to provide some of the norms desperately needed for our new information environment. It might inject democratic values into an information ecology that is driven by profit-seeking. It could create friction where speed and scale now reign. Finally, it could help reinvigorate and even repopulate an institutional press in desperate need of reinforcement

News as Surveillance

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors. On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business model has long been advertising-based. Yet, today this business model raises particular First Amendment concerns. The press, a named beneficiary of the First Amendment and a First Amendment institution, is gathering user reading history. This is a violation of what legal scholars call “intellectual privacy”—a right foundational to our First Amendment free speech rights. And because of the perpetrator, this surveillance has the potential to cause far-reaching harms. Not only does it injure the individual reader or citizen, it injures society. News consumption helps each of us engage in the democratic process. It is, in fact, practically a prerequisite to our participation. Moreover, for an institution whose success is dependent on its readers’ trust, one that checks abuses of power, this surveillance seems like a special brand of betrayal. Rather than an attack on journalists or journalism, this Essay is an attack on a particular press business model. It is also a call to grapple with it before the press faces greater public backlash. Originally given as the keynote for the Washburn Law Journal’s symposium, The Future of Cyber Speech, Media, and Privacy, this Essay argues for transforming and diversifying press business models and offers up other suggestions for minimizing the use of news as surveillance

Making News: Balancing Newsworthiness and Privacy in the Age of Algorithms

In deciding privacy lawsuits against media defendants, courts have for decades deferred to the media. They have given it wide berth to determine what is newsworthy and so, what is protected under the First Amendment. And in doing so, they have often spoken reverently of the editorial process and journalistic decision-making. Yet, in just the last several years, news production and consumption has changed dramatically. As we get more of our news from digital and social media sites, the role of information gatekeeper is shifting from journalists to computer engineers, programmers, and app designers. The algorithms that the latter write and that underlie Facebook, Twitter, Instagram, and other platforms are not only influencing what we read but are prompting journalists to approach their craft differently. While the Restatement (Second) of Torts says that a glance at any morning newspaper can confirm what qualifies as newsworthy, this article argues that the modern-day corollary (which might involve a glance at a Facebook News Feed) is not true. If we want to meaningfully balance privacy and First Amendment rights, then courts should not be so quick to defer to the press in privacy tort cases, especially given that courts’ assumptions about how the press makes newsworthiness decisions may no longer be accurate. This article offers several suggestions for making better-reasoned decisions in privacy cases against the press

Rhinoceros Horn Libation Cup

On display in the “Wonders of Nature and Artifice” exhibit at Gettysburg College is an exquisitely carved Chinese rhinoceros horn cup decorated with many images of animals, from dragons to tortoises.The rhinoceros horn has been noted by the Chinese as early as the T’ang dynasty (618-907) to have magical properties, and it was believed that when a poisonous liquid was poured into a rhino horn, the horn would change colors to alert to the presence of poison.Due to these magical properties, rhinoceros horns have been regarded as especially valuable. [excerpt

Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role. But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members are platforms. These platforms—companies like Facebook, Google, and Twitter—shun the media label even as they function as information gatekeepers and news editors. Their norms and values, including personalization and speed, stymie watchdog reporting. The Networked Press regime significantly threatens watchdog journalism, speech that is at the core of the press’s constitutional role. Yet, limited by the state action doctrine, the First Amendment cannot shield this speech from a threat by private actors like platforms. Today, the First Amendment is insufficient to protect a free press that can serve as a check on government tyranny. This article argues that we must look beyond the First Amendment to protect watchdog journalism from the corrosive power of platforms. It describes the limits of the First Amendment and precisely how platforms threaten watchdog journalism. It also proposes a menu of extra-constitutional options for bolstering this essential brand of speech

The Patriarchy’s Role in Gender Inequality in the Caribbean

While gender equality in the Caribbean is improving, with women’s growing social, economic, and political participation, literacy rates comparable to those in Europe, and greater female participation in higher education, deeply rooted inequalities are still present and are demonstrated in the types of jobs women are in and the limited number of women in decision-making positions. Sexism, racism, and classism are systemic inequalities being perpetuated in schools, through the types of education offered for individuals and the content in textbooks. Ironically, the patriarchy is coexisting within a system of matrifocal and matrilocal families, with a long tradition of female economic autonomy due to the Caribbean’s history with colonialism. This irony demonstrates the complexity and difficulty to change the dominant ideology and break the vicious cycles creating gender inequalities throughout many sectors of society in the Caribbean. [excerpt

The Effects of Physical Activity on Stress-induced Cardiac Fibrosis

Purpose: This study examined whether routine physical activity limits stress-induced tissue remodeling processes that lead to cardiac fibrosis. The study also explored whether the cardiac urocortin 2/corticotropin releasing factor receptor 2β pathway was activated during physical activity and involved in reducing fibrotic processes. Methods: C67BL/6J male mice were divided into four groups (n=8/group): sedentary/control, voluntary running/control, sedentary/stress and voluntary running/stress. Voluntary running groups were given 24-hour access to a running wheel in the home cage for 9 weeks. During the 9th week, stress groups were exposed to a 5-day resident-intruder stress paradigm that models human post-traumatic stress outcomes. Ventricular cardiac tissue was collected for analysis. Results: Mice ran an average of 4.75 ± 1 km each night. Interestingly, running behavior essentially ceased following stress. Running distance dropped to 0.31 km following the 1st stress day. Some habituation to stress occurred, as running distance increased to 1.12 km by the 5th day of stress but remained significantly lower than pre-stress running distances and distances recorded in non-stressed mice. Quantitative RT-PCR showed small changes in ventricular urocortin 2 and CRF-R2β expression in the running groups. TGF-β, a signaling molecule known to induce fibrosis, had comparable expression levels across groups over controls. Conclusion: Further work is planned to fully characterize urocortin 2/ CRF-R2β and fibrotic processes. Our running data lead us in a new direction, as we have stumbled upon a paradigm that will be useful to study underlying mechanisms by which stress exposure impairs physical activity behavior