Watchdogs don’t come cheap

From the Winter 2009 issue of The News Media & The Law, page 16.

Scott Barancik was a reporter at the St. Petersburg Times for eight years. At first he was on a staff of 11, filling a standalone business section every day. It was a pretty ideal fit for a documents guy like Barancik — he’s at ease sifting through paperwork; happiest working on stories that let him move slowly, dig and scrutinize.

But in recent years, he says, cutbacks took their toll: The standalone section folded; the staff size shrank. By May 2008, Barancik himself was out of a job. “It was not a buyout,” he said. He was simply told, we “can’t afford you.”

“I think my experience was probably much like many others’ in the industry,” Barancik said. “There was a focus on more stories produced more quickly. The sort of time and space for doing lengthy investigative reporting was at an increasing premium.”

Statistics are elusive and, anyway, inadequate to the task of assessing just how broadly the recession has compounded journalism’s already woeful economic state. Cutbacks, layoffs and furloughs are reported every week — the blog Paper Cuts, which attempts to keep track, tallied more than 15,500 American news industry jobs lost last year, and another 2,300 in the first weeks of 2009.

It’s certainly true, as Barancik pointed out about the Times, that many papers are pressing ahead with investigations, in spite of the thicket of new constraints.

But those job losses and cutbacks clearly hold some sort of meaning for journalism, — particularly for the sort of watchdog reporting that depends on and in turn has helped mold media law.

Indeed, several lawyers and people who have an eye on the news industry turmoil say the true depth of the impact is best seen anecdotally. Local papers from Washington to Minnesota are shying away from government access stories, particularly if it appears they might lead to a court battle. News executives from Montana to New York are firing expensive, experienced reporters who know how to navigate open-government laws. Lawyers are tasked with less pre-publication review of investigative pieces — not because editors are less conscientious about copy, but because there’s no time or money to produce such stories.

Some find these trends hopelessly depressing. But many others believe it is simply a time of evolution for news agencies and First Amendment work alike.

It took Barancik a bit of self-examination, weighing his attachment to his byline and considering the dismal industry job market, before he decided to reinvent himself — and, in his own local way, the process of beat reporting — with a new Web site.

Now he spends a few days a week sifting through newly filed civil suits at the Hillsborough and Pinellas county courthouses. A hundred or so good ones a month end up posted on Barancik’s subscription-only site. Essentially, he freelances the legwork so his clients — which he says include one mainstream local paper and a television station — can put together a broad range of local stories, quickly.

“Even the most talented, the most valued staff that I know locally at least profess to be insecure, and I don’t blame them,” he said. Newspapers, he said, “will probably have to cobble together any number of strategies to survive.”

Sizing up the impact

For Minneapolis-based media attorney Mark Anfinson, a clear sign of the depth of the downturn appeared in the first weeks of 2009 as he prepared a presentation he gives on journalism and the law.

He set about compiling a list of the past year’s new access cases in the state.

He came up empty handed.

“In the media law area in Minnesota,” Anfinson said, the effects of the downturn have “been dramatic.”

In interviews, several attorneys and journalists pointed out that the industry-wide financial woes are not altogether new. Journalism schools have churned out more new reporters than the industry could comfortably employ for at least several years. Jim Romenesko’s blog has long provided piecemeal documentation of a shortage in newsroom resources on the Poynter Institute’s Web site.

Analysts in that time have pointed to a variety of factors by way of explanation — the demise of family-newspaper ownership, and the new influence of profit-seeking shareholders; the dominance of the Internet, and the lack of a viable financial model to help newspapers adapt and support themselves on the Web.

Whatever the root cause, though, it seems the recession hammered it in.

Professor James Aucoin, of the University of South Alabama, was criticized for bringing an overly cheery outlook to the topic in his 2005 book, The Evolution of American Investigative Journalism. He said in a recent interview he’s still inclined to see the current downturn in the context of three centuries of highs and lows in the popularity of muckraking.

But clearly, Aucoin said, newsrooms today are taking a unique hit: “I don’t think we’ve seen it yet to the extent we’re going to see it.”

“The available funds have obviously diminished in major traditional media organizations,” Anfinson said. “What we’ve traditionally thought of as investigative journalism is going to suffer.”

In Seattle, lawyer Michele Earl-Hubbard, who works with several local papers around the state, says transparency in American society could be profoundly affected.

She says she’s seen a diminished appetite for “hard-hitting journalism” in newsrooms as cutbacks have taken their toll across the board. Not only are experienced reporters often the costliest to employ, but many of the newer, cheaper journalists are increasingly need to focus on finding easy copy for the next day’s paper.

And when editors face a potential access battle over a story, Earl-Hubbard said, more often “they have to make a call — is this worth a reporter’s salary? Several reporters’ salaries? . . . All over the state, absolutely, we see news organizations not waging battles that they ought to win, they should fight, because of resources.”

If things are dismal on the national level, she said, the risk of damage could prove to be even higher locally.

And whenever a document request is wrongly denied, Earl-Hubbard points out, or a reporter is unduly kicked out of a courtroom, and the news agency doesn’t come back with the full force of the law to stake out the proper right, a tiny new precedent is set with the government: “It’s teaching them that they can say ‘no’ every time,” she said, “without backlash.”

“There has been a cultural evolution within the government agencies and the attorneys that represent them,” Anfinson agreed, whereby “consciously or unconsciously, they know it’s much less likely they’re going to get challenged.” What lawmakers, transparency advocates and media lawyers have carefully crafted, the economy could chip away.

To Earl-Hubbard and others, here lies the true concern for media law: not that fewer copy editors could lead to less scrutiny, more mistakes and a new wave of libel suits, or that government watchdogs as a species will wilt and die without funds. Rather it’s that, without the experienced hands around to guide and train them, the reporters filling newspapers today won’t realize how fully transparency favors them. If they don’t know it, they can’t act on it — and in the day-to-day, government will adjust accordingly.

Ian Marquand readily identifies himself as that sort of traditionalist. By the time his position was cut in January, he had been at KPAX television in Montana for more than 19 years.

He’d learned how to navigate the state’s open-government law, and through his involvement in the state’s Freedom of Information Hotline he became something of a local expert on access. Marquand would even take calls from rival stations.

Like Scott Barancik, Marquand watched a gradual shifting of newsroom resources in the lead-up to his layoff. Increasingly, he said, what it takes to produce a piece of investigative journalism — time to sift through records at a courthouse, or to drive out of town for a crucial interview; patience as it can take a false start or two before a lead pans out — is tougher to secure.

It is not only the long-term pieces that call for watchdog work, either, he said. Marquand’s experience and knowledge might take him to daily meetings other reporters don’t realize they can attend, or documents they wouldn’t think to seek. All of which form the pieces of how we’re used to knowing our world.

For all his loss, though, Marquand is optimistic about the future of the field.

“My belief has always been if journalism as we know it did not exist, someone would invent it, and the public would demand it,” he said. “I think the public and citizens will demand some kind of information source, if it’s not there.”

The Future

With thousands of news staffers out of jobs in the past 14 months, or longer, Barancik is hardly alone in testing out new journalistic models. Mark Horvit of Investigative Reporters and Editors says his regional workshops around the country are increasingly used by “citizen journalists,” including from online-only news outlets, looking to learn how the professional watchdog role is played.

And there are bigger efforts to innovate on the Web: ProPublica, for instance, identifies itself as a “non-profit newsroom,” generating investigative reports on a national scale.

“How that’s going to work out long-term, no one knows yet,” Horvit said of all the Web-based innovation. But it will be “very important for these new online news organizations, or really truly dedicated to citizen-bloggers, to get the (watchdog) training. Especially if you’re out there on your own, there really is no one to ask.”

Of course, not all news agencies are scaling back completely. The Associated Press is just one outlet that has notably charged ahead to court in several expensive access battles, even as the industry suffered.

Indeed, Richard T. Pienciak, who is the wire service’s New York City-based national investigative editor, says AP is itself trying to adjust around the new financial landscape of journalism. In coming months, Pienciak said, he hopes to have four sets of investigative teams based in regions around the country. They’ll be dedicated to digging up and tracking down information, whether for months-long reports or breaking news stories, and whether of national or regional interest.

“Of course, there’s no question” there are hyper-local watchdog stories the AP simply can’t compensate for, if newspapers will no longer cover them, Pienciak said. But the overall industry downturn “makes our commitment (to it) that much more important — no question we are arguing to our members that this is added value, this is important journalism we’re going to try to do.”

How might the media law community adapt to accommodate the changing face of American journalism? Some attorneys suggested that, with the burgeoning number of citizen-journalists and watchdog bloggers showing up at Horvit’s IRE workshops, there will be a greater demand for nonprofits and other consolidated groups of legal experts ready and willing to provide cheap help, be it in handling a subpoena or fighting a courtroom shutout.

Others place the burden more on the new reporters themselves, saying it is their duty now to learn the law that has been sculpted around journalism and work to maintain its spirit, even if the letter must adapt to new technology.

Barancik, when he set out to build his Web site, hired a media lawyer to essentially write up his sales contract. His clients sign a document saying they’ll pay to defend him if a story idea he supplies turns into a libel lawsuit. He said he was nervous they wouldn’t agree to it, but so far that hasn’t been a problem.

Helpfully, Barancik came to this new job knowing a great deal about Florida’s sunshine laws. So one day at the courthouse, when a clerk snapped that he was definitely not allowed to take photos of the lawsuit documents — which Barancik does to save on photocopying fees — he was his own best legal defender.

“My immediate thought was, ‘Don’t panic, but if you’re not allowed to do this, the business is over,’” Barancik recalled. “At this point, I don’t have enough money to overcome the cost of making copies.”

He didn’t panic. He held his ground.

And he got his pictures.