In an era of sweeping change, how can freedom of information keep up?
Fifty years ago, the American Society of News Editors led the push for passage of the federal Freedom of Information Act that, along with the state and local laws it spawned, set open government standards across the U.S.
This week, the nation’s editors and managing editors meet in a joint convention in Philadelphia, facing a new era for speech and press rights that comes with long list of obstacles and opportunities.
In preparation for a segment on freedom of information, convention organizers asked media leaders across the country what they think editors and their organizations should do to promote the public’s right to know in a time of change.
They had a lot to say: They worried that news organizations and industry groups are failing to keep up with digital FOI developments, trends in government secrecy and the imperial way technology companies handle news and information.
Some said it’s time for an effort along the lines of the FOIA campaign a half-century ago.
“This is far more out of control than we’ve taken time to realize. Raw market power is asserting itself and raw government power is asserting itself," said Edward Wasserman, dean of the UC Berkeley Graduate School of Journalism. “There’s very little in the way of a conversation about rights and wrongs.”
Media leaders see lots of promise and potential in digital reformation as well. They cite breakthroughs in how information is shared, analyzed and presented; the impact of crowdsourcing; the growing power of whistleblowers; and the rise of startups bringing innovation to the media.
But they worry that leading news organizations, facing tight budgets and the pressure of modernizing their own operations, are pulling back from FOI battles just as these struggles become more complex and at times pivotal.
“The resources that media organizations are committing to freedom of information have been in decline for a generation," said Jameel Jaffer, director of the newly established Knight First Amendment Institute at Columbia University. “I wonder if there has been sufficient reflection about that trend.’’
Or as Kathleen Carroll, executive editor of the Associated Press, said of the media’s diminishing emphasis on FOI: “We are pissing this right away."
Here are ideas that emerged from interviews with a dozen media leaders about how editors and their organizations ought to respond:
Media groups should forge a consortium to push for legislation, lobby where appropriate and do their part to shape digital First Amendment law.
Though these organizations seem to be in agreement on the issues, they don’t tend to work together except on an occasional basis. What if leading players joined forces, several asked, and laid out fresh strategies in the public interest?
“There really is incredible strength in numbers," said Margaret Sullivan, the Washington Post’s media columnist and former public editor at the New York Times. “Although this hasn’t been something we’ve been comfortable doing, partly because we’re so competitive, I think it’s time to think about that.”
Such a consortium should draw on both long-standing and newer players, including the American Society of News Editors (ASNE) and Associated Press Managing Editors (APME) sponsoring this week’s convention, investigative organizations, digital groups and First Amendment organizations –in and outside the media.
“The more you can get activists and people who have an interest from other industries, it’s a way to have a lot more impact," said Mandy Jenkins, head of news for the social news agency Storyful and a former editor at Huffington Post. “The First Amendment is a perfect place for this. It affects a lot more industries than just ours.”
News groups should stand up to technology companies on freedom of information and make the case for what news organizations need from them.
Media organizations have an ambivalent relationship with the big tech companies: We rely on them to reach audiences, but are critical of their practices and lack of transparency.
Their pivotal decisions, from the algorithms that dictate search outcomes to the inner workings of news feeds, are viewed as proprietary instead of an opportunity to explain how they sort their information.
“What do we know, or think we know, about how these five main companies – Amazon, Apple, Microsoft, Facebook and Google — develop their algorithms?" said Alberto Ibarguen, president and CEO of the Knight Foundation. “I don’t think we really know."
Added Joanne Lipman, chief content officer at Gannett: “News leaders need to engage more actively on issues surrounding how audiences are accessing our content. Millions of people use Facebook as their primary news source, giving it tremendous power over what audiences see, yet Facebook isn’t transparent about how it determines which content users see."
Several said there’s an argument that tech companies, as the modern equivalent of the three broadcast companies of the past, should face a kind of Fairness Doctrine that once forced networks to provide public affairs coverage.
“What are their obligations to the public and where do those obligations come from?" asked Jaffer. “They may not be legal obligations. Some of them may be ethical obligations that media organizations have often accepted as part of their culture. There’s a responsibility to serve the public."
Jeffrey Rosen, a law professor at George Washington University and president of the National Constitution Center in Philadelphia, who’s written extensively on First Amendment, privacy and the courts, said far-reaching news decisions are made anonymously deep inside tech companies.
“I could imagine a world where the companies are pressured into making decisions that favor news in the public interest," he said.
The industry must come to terms with the lack of trust in the media and how that’s eroding support for press freedoms
Several industry leaders say this is the most pressing problem of the moment. They worry about how things would play out under Donald Trump, who’s threatened to curb press rights, or Hillary Clinton, whose closed campaign would suggest an administration with limited access.
“The single biggest threat is the public’s lack of trust in the media and its potential consequences," said Marty Baron, executive editor of the Washington Post. “Lack of trust breeds suspicion, which undermines support for a free press."
Gene Policinski, chief operating officer at the Newseum Institute and its First Amendment Center, who’s been following this issue for decades, said we’re seeing a higher level of friction in long history of conflicts over press rights.
“The nation has moved closer to abandoning its commitment to core freedoms than any other time in at least the past century," he said.
With the law still unsettled on how First Amendment standards apply to digital publishing, media leaders say it’s imperative to be aggressive on legal fronts.
They say media organizations should look for new approaches for keeping up the legal pressure, which has diminished in recent years.
In a 2016 Knight Foundation survey, a majority of U.S. editors said they are “less able” to pursue free press issues in court. About half agreed with the statement: “News organizations are no longer prepared to go to court to preserve First Amendment freedoms.”
That was one of the reasons Knight and Columbia University this summer formed the First Amendment Institute, which will focus in part on legal fronts.
Jaffer, the institute’s director, said media groups should make better use of existing pro-bono legal services, establish partnerships with willing law firms and set up cooperatives with the First Amendment organizations within the media and beyond.
“There may be some creative ways of getting around the resources constraints," said Jaffer.
The industry should take a clear stand on government secrecy disputes, the difficulties of national security reporting and the evolving role of whistleblowers.
Several media leaders said the murky territory of how to report on government secrecy deserves more attention from industry organizations, particularly given the government’s use of surveillance and investigative powers.
“Anything having to do with electronic surveillance really affects reporters, and it affects national security reporters in particular," said David Shipler, a former New York Times reporter whose new book is Freedom of Speech: Mightier than the Sword. “The press should be very active in pushing for more restrictive policies on electronic surveillance."
Whistleblowers have been behind some of the biggest journalistic events of recent years – from the surveillance revelations driven by Edward Snowden to the impact of WikiLeaks and the Panama Papers. But journalism groups don’t have systematic approaches for how to work with, as well as cover, what’s likely to be a growing force for delivering sensitive information.
And lastly, many said news organizations need to do a better job of reporting on the wide array of freedom of information, digital technology, free speech and delivery issues in the news.
Several media leaders were critical of the quality and breadth of reporting on topics that could help the public better appreciate the complex ways information comes to them.
“News organizations really need to have people on the beats that involve the internet and these providers that collect and follow information," said author Shipler. “It’s a great story, but it’s not covered as clearly as it could be. This goes directly to the question of freedom of speech.”
Timothy Garton Ash, author of "Free Speech: Ten Principles for a Connected World," a sweeping new book that takes a global perspective, said the topics deserve far more attention than they’re getting.
“It’s a journalistic challenge to tell these stories well," he said. “But these have been for a long time very much underreported stories.”
Anders Gyllenhaal is vice president for news and Washington editor with McClatchy and chair of the Poynter National Advisory Board. George Stanley, chair of the ASNE First Amendment Committee and editor of the Milwaukee Sentinel, contributed to this essay.
The ASNE/APME convention segment on freedom of information will be held at 10:10 a.m. on Wednesday morning this week at the Philadelphia Marriott Downtown.