Friday, April 3, 2009

A federal judge comes to defense of good newspaper journalism; he's right, but industry gave up on making a difference too long ago

From a blog on, Federal Court of Appeals Judge Harvie Wilkinson makes an appeal for the newspaper industry of the past, one that held institutions and those in power accountable.

Wilkinson was part of a majority decision that overturned a lower court decision throwing out a lawsuit filed by a Baltimore Police Department major over violation of his First Amendment rights. He complained to the Baltimore Sun over a botched murder investigation and was fired.

Wilkinson's worries about what will happen to people such as the police major when there no longer are newspapers of substance that will take their complaints, investigate, then publish.

There are a handful of newspapers still willing to take that risk. But most are worried about the bottom line, and how much time an investigation would take from their reporters filling the newspaper each day because of drastically reduced staffs. Many beats such as the courts aren't even covered daily. Newspapers also don't want to risk advertisers pulling out because of unfavorable content.

Still, I greatly appreciate the judge's concerns. I mourn for the loss of that industry that was first about making a difference and afflicting the comfortable. And with the institutional scandals of these times and the number of people in need, great newspapers are desperately needed.

But Judge Wilkinson is speaking about newspapering that has mostly died, particularly here in Nashville.

Still, his honor makes a most eloquent appeal worth reading for those of us who miss the old days. I just wish there was an industry left that would heed it:

WILKINSON, Circuit Judge, concurring: I agree that the dismissal of Andrew’s First Amendment claims was premature. In Garcetti v. Ceballos, 547 U.S. 410 (2006), the employee spoke on a matter as a part of his official duties. Here, as the court notes, that is very much in dispute. In Garcetti, the employee did not distribute the statement to a news organization. Here he did. And the matter about which Andrew spoke was not just an office quarrel or routine personnel action, but a question of real public importance, namely whether a police shooting of a citizen was justified and whether the investigation of that shooting was less than forthcoming.

To throw out this citizen who took his concerns to the press on a motion to dismiss would have profound adverse effects on accountability in government. And those effects would be felt at a particularly parlous time. It is well known that the advent of the Internet and the economic downturn have caused traditional news organizations throughout the country to lose circulation and advertising revenue to an unforeseen extent. As a result, the staffs and bureaus of newsgathering organizations—newspapers and television stations alike— have been shuttered or shrunk. Municipal and statehouse coverage in particular has too often been reduced to low-hanging fruit. The in-depth investigative report, so essential to exposure of public malfeasance, may seem a luxury even in the best of economic times, because such reports take time to develop and involve many dry (and commercially unproductive) runs. And in these most difficult of times, not only investigative coverage, but substantive reports on matters of critical public policy are increasingly shortchanged. So, for many reasons and on many fronts, intense scrutiny of the inner workings of massive public bureaucracies charged with major public responsibilities is in deep trouble.

The verdict is still out on whether the Internet and the online ventures of traditional journalistic enterprises can help fill the void left by less comprehensive print and network coverage of public business. While the Internet has produced information in vast quantities, speedy access to breaking news, more interactive discussion of public affairs and a healthy surfeit of unabashed opinion, much of its content remains derivative and dependent on mainstream media reportage. It likewise remains to be seen whether the web—or other forms of modern media—can replicate the deep sourcing and accumulated insights of the seasoned beat reporter and whether niche publications and proliferating sites and outlets can provide the community focus on governmental shortcomings that professional and independent metropolitan dailies have historically brought to bear.

There are pros and cons to the changing media landscape, and I do not pretend to know what assets and debits the future media mix will bring. But this I do know—that the First Amendment should never countenance the gamble that informed scrutiny of the workings of government will be left to wither on the vine. That scrutiny is impossible without some assistance from inside sources such as Michael Andrew. Indeed, it may be more important than ever that such sources carry the story to the reporter, because there are, sad to say, fewer shoeleather journalists to ferret the story out.

So I concur in Judge Alarc√≥n’s fine opinion, because it recognizes this core First Amendment concern with the actual workings—not just the speeches and reports and handouts— of our public bodies. This case may seem a small one, involving a single incident in a single locality, but smaller cases are often not without larger implications. The court is right to note that at this early stage, we cannot foresee who will prevail. But as the state grows more layered and impacts lives more profoundly, it seems inimical to First Amendment principles to treat too summarily those who bring, often at some personal risk, its operations into public view. It is vital to the health of our polity that the functioning of the ever more com- plex and powerful machinery of government not become democracy’s dark lagoon.

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