The legal needs of local news: What we learned from the Local Legal Initiative proposal process
In 2019, the Reporters Committee for Freedom of the Press announced its Local Legal Initiative, an ambitious expansion of its legal services to provide direct, targeted legal support for local enterprise and investigative reporting in five jurisdictions across the country. Made possible by generous support from the John S. and James L. Knight Foundation, the Local Legal Initiative, or LLI, expects to add a Reporters Committee attorney in Colorado, Oklahoma, Oregon, Pennsylvania, and Tennessee in 2020.
The attorneys we hire in these states will be fully integrated members of the Reporters Committee’s existing legal team. Their presence on the ground in local communities will help our attorneys based in Washington, D.C., target legal issues in those jurisdictions in a systematic way while, at the same time, continuing to represent journalists across the country.
To identify the five local news ecosystems to launch the LLI, the Reporters Committee wanted to hear directly from journalists, news organizations, and other stakeholders around the country about where they see the greatest need for support for local journalism. We put out a request for proposals asking respondents to tell us about the biggest legal challenges reporters face in their communities, as well as how additional legal support would enable them to pursue more local enterprise and investigative stories. We sought collaborative proposals that demonstrated a clear need for pro bono legal services, and included for-profit and nonprofit newsrooms, state press associations, and freedom-of-information organizations.
In all, we received 45 proposals representing more than 30 states, territories, and regions. More than 240 organizations, newsrooms and individuals submitted or signed on to a proposal for a Reporters Committee attorney in their jurisdiction.
The results showed an extensive need for pro bono legal help across the country, but they also highlight clear opportunities for the Reporters Committee and others who are committed to building support for local journalism.
Here’s what we learned from the proposals:
- Facing dwindling revenues and shrinking staff, local newsrooms are struggling, and legal resources for affirmative access work are often the first to be cut.
- Reporters are increasingly confronting a culture of secrecy in local and state governments that shields data, documents, and other public records, especially in the law enforcement context.
- Journalists are frequently shut out of public meetings and court proceedings, making it difficult for them to report on government entities and the judicial system.
- Members of the news media, government, and the public need training and education about the public’s right to access information.
- Some journalists and newsrooms reported that they would feel more confident pursuing investigative reporting if they had access to an attorney to review sensitive stories before they are published and provide defensive support when reporters are served with subpoenas or threatened with lawsuits.
The proposals we received reflect a widespread need for legal support for local journalism in states and communities across the country, and we faced a difficult decision in selecting only five jurisdictions to launch the LLI. Ultimately, we selected our first five states — Colorado, Oklahoma, Oregon, Pennsylvania, and Tennessee — with the goal of growing the program beyond those jurisdictions in the coming years, though the Reporters Committee will continue to provide legal services and resources for journalists and news organizations nationwide from our headquarters in Washington, D.C.
This report quotes extensively from proposals sent to us from states and regions all over the United States, not just the five we selected to launch this program. By quoting their applications and sharing what we learned throughout this process, we hope to illuminate some of the clear legal obstacles that journalists and news organizations face each and every day.
In 2017, a bidding war with significant economic implications was in full swing — and the public was in the dark.
As local governments around the nation engaged in a high-profile contest to become the home to Amazon’s second headquarters, news organizations submitted public records requests seeking information about the tax breaks and other incentives public officials were offering one of the world’s most valuable companies.
In many cases, however, those requests were met with secrecy. For example, local governments in Colorado withheld their proposals from multiple news organizations, blocking important, timely reporting on major economic development proposals that had the potential to transform their communities for decades. The same was true in Pennsylvania, where government leaders went to court in an effort to shield their bids — even after the state’s Office of Open Records ruled that they should be released to the public.
Newsroom leaders in both states cited government secrecy surrounding local and state governments’ pursuit of Amazon as one reason why they sought a Reporters Committee attorney through our new Local Legal Initiative, which we announced one year ago after a generous investment from the John S. and James L. Knight Foundation. But it wasn’t the only reason: They also described other important stories that have gone untold, including reporting on political corruption and the opioid crisis, because government officials blocked them from accessing crucial data and documents.
Across the country, local newsrooms trying to investigate everything from law enforcement and the environment to education and poverty have met a similar fate. While journalists are digging into consequential issues like affordable housing, police officer misconduct, and climate change, they are routinely being stymied by a culture of secrecy that is pervasive in local and state governments.
These are just a few of the things we learned from reporters and news organizations after we asked, as part of our Local Legal Initiative, where they see the greatest needs for legal support.
What we learned about the legal needs of local news
The proposals made clear that, in order to pursue local enterprise and investigative journalism, newsrooms need a dedicated attorney to help journalists and news organizations defend their rights to gather and report the news, gain access to public records and court proceedings, and hold state and local government agencies and officials accountable.
That sentiment was echoed by more than 240 organizations, news outlets, and individuals that submitted or signed on to a proposal seeking a Reporters Committee attorney. In all, we received 45 proposals representing more than 30 states, territories, and regions across the country.
While we recently announced that we plan to launch the Local Legal Initiative this year in Colorado, Oklahoma, Oregon, Pennsylvania, and Tennessee, the need for local pro bono legal services stretches far beyond these five states.
Collectively, the proposals described the impressive enterprise and investigative journalism at all types of news organizations nationwide — from legacy newspapers to public media outlets to nonprofit newsrooms reporting on under-covered communities — but they also painted a picture of elected officials frequently thwarting important local reporting, especially by denying access to public records and public meetings.
The Local Legal Initiative proposals revealed how these officials have grown emboldened in their efforts to hide their actions from the public, confident that the local watchdogs — facing plummeting revenues and shrinking staff — are losing their bite.
While local accountability journalism has been boosted in recent years thanks to major philanthropic investments in nonprofit news and the establishment of innovative reporting partnerships, the challenges local news organizations face are daunting. In addition to financial hardships, they must battle rampant misinformation, polarization, and a deluge of anti-media attacks that seek to undermine meaningful, factual reporting that is foundational to a functioning democracy.
“The proposals we received show that local news organizations are hungry to produce enterprise and investigative journalism, but they need strong, on-the-ground legal support in order to hold the people in power in their communities accountable,” said Reporters Committee Executive Director Bruce Brown. “We are proud to offer legal services at no cost to news organizations through our new Local Legal Initiative. And thanks to this proposal process, the attorneys we hire now have a roadmap to helping local journalists as they continue to produce groundbreaking, consequential reporting in the public interest.”
Buyouts, layoffs, and dwindling resources
Most of the applications the Reporters Committee received confirmed a hard truth about local journalism today: Newsrooms are finding it increasingly difficult to fund the legal battles frequently required to support investigative reporting at the local and state level.
In making their case for a Reporters Committee attorney, more than 86 percent of the Local Legal Initiative proposals specifically mentioned the financial hardships faced by local newsrooms. Some applicants said that news organizations can’t afford to spend limited resources to fight government officials and agencies for data and documents.
Citing recent newsroom mergers and layoffs, a proposal from Massachusetts said community news organizations in the state are “now covering larger areas with fewer resources and are facing more barriers and costs to obtain public records.”
In Oregon, “even the state’s most dogged reporters won’t pursue certain stories because they know getting necessary records will be too time-consuming or expensive to justify,” another proposal said. “Agencies understand this dynamic and exploit it.”
It’s certainly no secret that many local newsrooms are struggling. Over the past 15 years, more than one in five local newspapers have shut down. For the ones that have survived, a combination of falling advertising revenues and dwindling subscriptions has resulted in buyouts and layoffs — the collective toll so severe that researchers at the University of North Carolina have dubbed many downsized newsrooms “ghost newspapers.”
As purse strings have tightened, news organizations have been forced to cut budgets intended to fight for public records that help them tell critical stories in the public interest. Even newsrooms that can afford legal counsel often have to make difficult decisions about which battles they can take on. In fact, more than two-thirds of editors who responded to a 2016 Knight Foundation study said that the news industry was less able to pursue legal activity around First Amendment issues than it was a decade prior.
Foundation-funded initiatives and nonprofits like Report for America and the American Journalism Project, as well as the Marshall Project and ProPublica’s Local Reporting Network have gone a long way toward keeping local enterprise and investigative journalism alive in these difficult times. So have the many creative reporting partnerships and collaborations that have allowed newsrooms — even longtime competitors — to share resources and pursue watchdog journalism.
Still, despite these important investments and partnerships, it’s clear from the applications we received that the success of local investigative journalism in many ways depends on whether newsrooms have the strong, sustained legal support they need to stand up to public officials and fight government agencies in court.
As an applicant from Ohio put it, “Only when journalists pose a credible threat of litigation do public officials begin to obey the law.”
The fight for access to public records, meetings
Anyone who follows journalism closely is well aware that reporters are frequently frustrated by government entities that delay and deny their public records requests. But the Local Legal Initiative applications revealed the extent to which they are stifling accountability journalism at the local level.
Almost all of the 45 proposals indicated that access to public records is a major issue. Frequent complaints included extensive delays, excessive processing fees, overuse of exemptions, and problems related to the release of large datasets.
More than half of the proposals specifically highlighted issues accessing law enforcement records, while others mentioned problems accessing records on the opioid crisis, child welfare and state prisons, among others.
“Limited access to records has hampered the ability of news organizations to fully document police shootings, biased policing, bullying and harassment of students of color, inmate complaints and municipal corruption,” an applicant from Vermont told the Reporters Committee. “Restricted access to documents has obscured information about test scores, pesticide use and critically important accountability investigations of state waste, abuse and corruption.”
Some proposals said that officials who block public records requests are essentially daring journalists to file a lawsuit, knowing it’s unlikely to happen. That’s especially true in states that have no administrative appeals process, meaning that members of the press and the public must challenge records request denials in court.
One applicant said that having an “attorney to fight against wholesale records denials would be a godsend locally and statewide.”
In addition to issues obtaining public records, about one-third of Local Legal Initiative proposals also cited problems accessing public meetings, court records, and court proceedings. News organizations in some states noted how they have been shut out of closed-door meetings that should be open to the public, while others mentioned that judges sometimes seal court dockets and close courtrooms, leaving journalists unable to report on the judicial system.
A proposal from New Jersey specifically mentioned how the mayor of Newark barred journalists from attending a public meeting about the high levels of lead in the city’s water. Another proposal from Texas said that reporters and attorneys were being prevented from observing court proceedings in tent cities near the border with Mexico. And applicants in a handful of states specifically highlighted access issues in tribal communities.
“In one recent instance,” a proposal from Alaska said, a journalist “seeking to report on sexual violence in a remote community was barred, in writing, from visiting the village by the community’s Alaska Native corporation and tribal council.”
Some applicants stressed that the need to access public records and meetings is arguably greatest in communities of color. News organizations’ ability to substantively report on the often systemic issues affecting those communities is frequently hampered by public officials and agencies that prefer to operate in secret.
A proposal submitted by organizations in Delaware, Maryland, and Washington, D.C., specifically mentioned that having the support of a local Reporters Committee attorney would help them cover housing issues in vulnerable neighborhoods along the eastern shore of Maryland.
“Investigations into senior housing, rent control, mold and maintenance issues, and section 8 issues would be especially meaningful particularly because currently the agency ignores requests and stonewalls reporters,” the proposal stated.
“A RCFP attorney would greatly enrich our coverage into immigration services, public health departments and local police agencies, among many others, that deal directly with under-served communities in our region,” a proposal from California said.
In Tennessee, an applicant noted that additional legal support would help journalists there fight for access to internal investigations into schools and their employees. “We could take a deeper look at issues such as how qualified teachers are in under-served communities and other disparities that we suspect exist but can’t get access to the records to prove it.”
The need for training, education, and defense
While access issues were cited most frequently in Local Legal Initiative applications, proposals mentioned a variety of other ways in which an attorney could help improve local journalism and hold officials accountable: by offering training and education; pre-publication legal review; and defensive support.
About one-third of applicants identified a need for increased training and education. One state press association said reporters would benefit from training on access and defamation issues, while a state press association in a different state noted that many judges could use training on the same topics.
Another proposal suggested an attorney could lead regional workshops to teach members of the press and the public about their rights and responsibilities.
“Such training and evangelizing could embolden small or startup news organizations to undertake more ambitious and possibly litigious projects,” the applicant wrote. “It could empower ordinary citizens to gain access to and knowledge about institutions in their communities, an antidote to the alienation all too many Americans currently feel.”
Media law workshops would be particularly valuable in today’s age of misinformation and “fake news.” For example, a recent survey by PBS Newshour, NPR, and Marist found that 59 percent of Americans said it was hard to tell the difference between what is fact and what is misleading information.
“All news organizations have faced intense pressure in recent years because of a profound cultural shift surrounding alleged ‘fake news,’” one applicant from California told the Reporters Committee. “We need resources to push back and educate our sources, particularly in local government, about the public’s rights under the First Amendment.”
About one-fifth of the proposals mentioned the need to have an attorney review investigative stories before publication to make sure they are legally sound. Such pre-publication consultations often give journalists the confidence to pursue important investigative stories without fear of facing a lawsuit.
“An attorney will know where the minefields are when reporting on sensitive topics,” an applicant from Wisconsin wrote.
“Free legal counsel would allow reporters to conduct more aggressive investigations without fear of reprisals masked as lawsuits,” a proposal from New Jersey added.
But the fear of such lawsuits is real. While fewer than one-tenth of the proposals received by the Reporters Committee mentioned the need for defensive support, such as fighting subpoenas or responding to demand letters or libel suits, the ones that did revealed just how risky investigative reporting can be at the local level.
“Fear of the defense cost for a libel complaint, a long court case or multiple lawsuits has a tremendous chilling effect on enterprise and investigative reporting,” an applicant from West Virginia told the Reporters Committee, calling it “an expense most news operations can’t bear.”
A press association proposal from Nevada cited the troubling case of local journalist Barbara Ellestad, who was served with six subpoenas in three different courts in response to her reporting on a local water district. The reporter was forced to spend $27,000 of her own money to fight orders asking her to turn over notes, documents and recordings, among other reporting materials.
All six of the subpoenas were eventually quashed, but the press association wrote in its application that Ellestad was served with yet another subpoena last June. When the Reporters Committee learned during the proposal process that Ellestad could no longer afford to defend herself against the continued threats, we quickly connected her with a Las Vegas media attorney who is now representing her pro bono.
As the press association stated in its application, the cases against Ellestad illustrate how vulnerable reporters can be without legal support.
“Her cases describe the kind of run-of-the-mill pressure tactics power brokers and their aggressive lawyers employ in Nevada to make reporters disappear,” the proposal said. “They’re less likely to disappear, of course, if they have the kind of pro bono legal support that can defend their reporting.”
Local newsrooms pursuing vital enterprise and investigative reporting about issues affecting their communities face a variety of challenges, particularly around access to information. Confronting dwindling revenues, many newsrooms no longer have the resources to pay for legal services — meaning records request denials go uncontested, governments avoid scrutiny, and the public is left in the dark.
It also means that historically under-served communities and voices are more often missing from coverage.
The Local Legal Initiative aims to change that by providing direct legal services in places where we, at the Reporters Committee, and our partners in each of those places, which will include lawyers in the private bar as well as law school clinics, can meet those needs. While we are launching this program in Colorado, Oklahoma, Oregon, Pennsylvania, and Tennessee, we hope to expand it in the coming years, and the information we’ve received throughout this process will help inform those next steps.
Beyond these five states, Reporters Committee attorneys will continue to provide legal services and resources for journalists and news organizations across the country from our home base in Washington, D.C., as we have done for the past 50 years.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.