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

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

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

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 Violence of Free Speech and Press Metaphors

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us. The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition and force order the rungs on a ladder climbing toward truth. Power and violence are at home in the speech marketplace. Unsurprisingly, these same characteristics animate the defining metaphor for a key free speech institution: the press is a “watchdog.” In First Amendment law, the press’s role is to attack government for its misdeeds. As linguists have shown, metaphors are not simply rhetorical icing. They shape human understanding and behavior—sometimes in dangerous ways. The marketplace and watchdog metaphors have this power, and with it they have helped to create a speech environment where violence can feel routine. No easy fix exists for the violence in our public sphere. But new metaphors could help us reconceptualize the ways we communicate. This Article explains how

A Free Press Without Democracy

The American press is beleaguered and distracted by the economic crisis it faces. This is understandable. The threat is existential. Platforms are squeezing the press of profits, hedge funds are siphoning off what’s left, and news deserts are expanding. But, in fact, there is another crisis afoot that may be greater: a political one. Democracy is eroding. Autocracy is eclipsing it globally. The days of a free press may be numbered. The American press likes to think of itself as exceptional and immune. It is not. Since at least the founding of the Republic, political philosophers have agreed that democracy requires a free press. But does a free press require democracy? More pragmatically and the focus of this Article: how does the American press remain free as democracy erodes? The answer is that freedom will only persist with great difficulty and effort. This Article offers up a roadmap for that effort. It is concrete about just what pathologies the press needs to overcome and how. Specifically, journalists need to reject a lengthy history of American press exceptionalism and embrace globalism with respect to both journalistic methods and press-protecting law. They need to reject Darwinian competition for news and collaborate at various levels including distribution as a hedge against censorship. Finally, journalists need to reject the siren song of reader desire as divined through data and instead re-think what it means to inform, serve, and connect citizens of a democracy

Beyond the Watchdog: Using Law to Build Trust in the Press

Declining trust in the American press has been longstanding and corrosive—both to our information environment and to democracy. It is tempting to think that if journalists could just repeatedly and brilliantly play their key role—that of watchdog—it might be redemptive. But doubling down on the watchdog function holds risks in our polarized climate. Research shows that some conservatives recoil from watchdog journalism, finding it too cynical and politicized. This essay argues that a different journalistic function—one that has received far less attention and adulation from judges and legal scholars—should be encouraged and amplified. This is the press’s role as a convenor and facilitator of the public square. Traditionally, this public square has been synonymous with the marketplace of ideas—a space that the Supreme Court has called “uninhibited, robust, and wide-open” where debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” But a metaphorical public square for today’s flagging democracy—in which sharp attacks abound—needs to operate differently. For one, it needs to better take into account how to build trust, understanding, and what philosopher Robert Talisse calls “civic friendship.” This essay investigates how the press might take up the role of architect, convener, facilitator, and even listener in what I call “public fora”—spaces not simply marked by debate but also by collaboration and deliberation. It looks at how law might help. It argues that with law’s backing, the press can build citizens’ trust in it by helping citizens to trust one another

Undetectable mannose binding lectin and corticosteroids increase serious infection risk in Rheumatoid Arthritis

Background: Infection is the leading cause of death in rheumatoid arthritis (RA). Corticosteroid (CS) use is a known and important risk factor for serious infections (SIs). Mannose binding lectin (MBL) is a genetically determined component of the innate immune system implicated in neonatal infections. Objective: Our aim was to determine whether MBL deficiency is a risk factor for SIs in RA and to compare it with CS use and also synthetic and biologic disease-modifying antirheumatic drug (DMARD) therapy. Methods: Data on 228 patients with RA were collected for up to 7 years (median = 5.9 years). Serum MBL concentrations were determined in all patients receiving synthetic (n = 96) or biologic (n = 132) DMARD therapy. Results: High rates of SIs were observed in RA irrespective of treatment (17%). Similar rates of SIs were observed in synthetic and biologic DMARD users. The rates of single and multiple Sis were similar, irrespective of the use of a biologic agent. Undetectable MBL (\u3c56 ng/mL) concentrations and maintenance prednisolone at 10 mg per day or higher were associated with an increased risk for an SI, with incident risk ratio of 4.67 (P = .001) and 4.70 (P \u3c .001), respectively. Conclusions: Undetectable MBL and prednisolone confer a high risk for an SI. The use of biologic DMARDs did not confer substantial SI risk in this observational study. MBL deficiency is hitherto an unrecognized risk factor for an SI in RA