 Our last panel today is Law and Ethics in a Changing Media Ecosystem. That's really broad, right? That could be almost anything. We may talk about almost anything, but we're going to try to focus a little bit. Think of that as an umbrella for a broad set of topics that maybe we'll divide into a couple of big buckets. For the first, we'll return to the overarching topic of the first panel this morning. It's the financial and structural turmoil that's plaguing newspapers and the mainstream media business, and maybe pick up some of the spirited debate that we were beginning at the end of Josh's lunch talk. But we'll focus on what role can law or changes in law and policy play in helping to shape the evolution, the sustainability of traditional media, and also the emergence of new models of reporting, and new business models. But we'll be focusing other than on the copyright and hot news issues that you heard about this morning. So those will be things like possible government funding or subsidies or support for newspapers in the media business, expanded funding for public broadcasting and public media, maybe changes that allow newspapers and other media organizations to operate as nonprofits and the pros and cons that all of those things would bring. Maybe we'll touch on suggestions for changes in the antitrust laws that might allow media operations more flexibility. And then our second bucket of issues, a little more scattered, is going to be ways that the law and changes in the law can actually help new and alternative media models to emerge and really continue, assume the function of doing journalism. Even if they look very different and operate very different than traditional journalism, how can the law help them actually do good quality journalism? Not to replace what we have, but to work in parallel and concert with what we have. We'll talk about shield laws and the role that they historically have played and questions about how they can or should or should not be changed to be more encompassing of new media models. We'll talk about improving access for non-traditional citizen media to government information, government sources, so things like credentialing of journalists for courts by police for other government purposes, access to court documents, open meetings and open record laws, and how those can help non-traditional journalists. And then issues like just physical access by blogging from courtrooms, tweeting from courtrooms, and so on, all of which are fairly controversial, fairly unsettled areas. And then we'll talk a little bit about anti-slap laws, laws that allow you to quickly get rid of slap strategic lawsuits against public participation that are designed to shut up people. Anti-slap laws are a way of dealing with those at low cost, which can be very important for people who don't have a big legal department and a big sort of newsroom behind them. So we've got really a fabulous panel to talk about all of these things and more today, and I want to introduce them to you before we kick off. So starting on my immediate left, John Hart practices law in Washington, D.C. at Dowlownas, where he heads the media and information technologies practice. He represents a lot of media and technology companies across the board and really has been representing people who are traditional journalists as well as non-traditional people who make money doing the business of journalism for many, many years ever since the internet came along. Clients include websites, newspapers, magazines, radio and TV, technology companies. He's counseled to the online news association and has written extensively on media and technology law. To his left, coming up second is Dan Kennedy, an assistant professor of journalism at Northeastern and a nationally known speaker on media issues. You can hear him here as a panelist on Beat the Press on WGBH. He has a couple of books working on a second one now about the role of nonprofit community websites in the post newspaper age and spent a lot of time studying the operation of these websites and the challenges that they face. To his left, Josh Stearns is program manager at Free Press and is heavily involved in their journalism and media campaigns including this fabulous project called SaveTheNews.org. Part of what he does is brings together journalists and local citizens around the country to try to involve them in some of the policy debates about media and journalism that are going on in Washington, D.C. He also blogs at SaveTheNews.org and StopBigMedia.com. To his left is Lucy Delglish, the executive director of the Reporters' Committee for Freedom of the Press. That's a group, if you don't know, truly phenomenal group of reporters and editors dedicated to protecting the First Amendment interests of the media, broadly defined. Reporters' Committee has been actively involved in major press cases of all sorts for over 35 years, hugely important. Before assuming this position, Lucy was herself a reporter and then after that was a media lawyer for quite a few years and she specializes in part in open meetings, open record laws, CHIL laws and so on. To her left, Rob Birchie, who is a partner in the media and internet law practice at Prince Lobel here in Boston, represented magazines, newspapers, online media across the country in every sort of case you can imagine, privacy, copyright, libel, all of the things that plague media business and in particular, he's focused on helping traditional media try to figure out just what we're talking about today, how to adapt to all these changes and how to adapt to an increasingly online world. He choose a former reporter and serves as general counsel to the New England Newspaper and Press Association. Finally, last but not least on the end, Cameron Straker, is a lawyer who's represented a wide variety of media clients in defamation cases, privacy, reporters' privilege, intellectual property cases for over 20 years. His clients include very cool TV shows like Dog the Bounty Hunter and he's written regularly for The New York Times, Wall Street Journal, any other publications and as a professor at the New York Law School where he's involved in their program on law and journalism. So welcome and thank you all for being part of this. I think really great panel. What I'd like to do to have you kick us off is just to ask each of you to go down and take just four or five minutes to share your perspective on sort of what you see as the critical issue or issues within these buckets of things we're talking about and your perspective on where we ought to be focusing and then we'll circle back from there and take up three or four of the biggest, the most challenging topics. John. I would want to start by congratulating the online media legal network and putting together this invaluable matchmaking service. As Phil said, I have served as counsel to the online news association since actually before there was an online news association and at a board retreat about, I don't know, four or five years ago we had a facilitator who asked one of those facilitator type questions. What would the online news association be doing in five years? What's beyond your wildest dreams? Just fantasize. And part of my answer was that we would create what I didn't know at the time was later going to be named by these people, the online media legal network. I think the service is really fantastic and I think it's going to perform an enormous service to journalists who are trying to figure out the questions we're talking about about how to survive in a world where you don't have the mothership of a big media company to take care of you. In terms of my perspective on this, I think I generally do come at the questions we're going to be talking about today from the perspective of someone who has spent most of his career representing people who are trying to figure out either trying to make money or trying to figure out how to make money doing journalism. I am certainly very intrigued by some of the not-for-profit business models and I, you know, as Josh was saying at lunch I suspect that we will wind up with a mix that there's not going to be a prevailing model as there has been in the past that we'll have a mix of for-profit and non-profit and subscription and membership services and ad-supported services and in terms of my view of what the government should be doing. I appreciate the notion that the postal code was in 1792 a subsidy of the newspaper business. I am more... I guess I come at the world more from the perspective that I would like to see the government step back as much as it can and try not to interfere with the development of some of the business models that might allow my clients to make money I'm thinking in part of things like regulation of behaviorally targeted advertising. And I guess I'll let everybody else down the line and we'll get back to these topics. Well, I agree with John that we're going to see a mix of different types of financial models for news sites going forward, a combination of profit and non-profit. But I do think that non-profit is going to be a very important and increasingly important part of the mix. A site that I've been looking at particularly closely is the New Haven Independent. And what they're doing is just so compelling in terms of small, cheap, fast, foundation-supported journalism that I have to think that this is going to be something that we see quite a bit of going forward. And as we've noted we're going to be taking up a lot of different issues today. One of the issues that kind of nags at me is the prohibition on non-profit organizations from making political endorsements. And believe me, I have written enough political endorsements over the years to realize that we do not have large audiences sitting at home waiting with bated breath to tell us who to go vote for on Election Day. But it's a matter of free speech. Congress shall make no law. But part of no law, don't you understand? And interestingly enough, I think that we tend to believe when we hear about this prohibition that it was handed down to us on tablets by James Madison and Thomas Jefferson when, in fact, it really only goes back to Lyndon Johnson's re-election campaign to the Senate in 1954. He was running against a guy named Dudley Doherty and there were a couple of right-wing, red-baiting, non-profit organizations back home in Texas that were essentially using McCarthyite tactics to try to defeat Lyndon Johnson on behalf of Dudley Doherty. And Johnson managed to push through the Senate a law that suddenly prohibited all non-profit organizations from working on behalf of or against a particular political candidate, something that nobody paid an awful lot of attention to over the years, but that I think has become a fairly important violation of free speech as we move into this era of non-profit news. Now, Paul Starr, among others, has suggested that we make an exception for news organizations that are non-profits so that they can fulfill this traditional role. And I'm going to suggest something a little bit more sweeping than that, and that is that we simply undo what Lyndon Johnson did these many years ago. I think a lot of liberals tend to blanch at the notion of removing this prohibition because it would unleash evangelical churches and all kinds of people that those of us who consider us to be somewhere on the left side of the spectrum tend not to like. But I think that this is a great time for all of us to stand up for the fundamental principle of free speech and getting back to the spirit of the First Amendment. And just as we are freeing non-profit journalism from these restrictions, so ought to we restrict the restrictions on everyone else. Great. Thanks, Josh. I'm really excited to be here. When we founded Save the News about two years ago, that's when the idea started to percolate, we were looking at the discussion around the future of journalism, and we saw that really no one was talking about the role of public policy, roughly two years later, and we're having an entire conference about the impact of law on journalism and the future of journalism. So I think this is really exciting for me to be here. Save the News is a project of Free Press. Free Press is a non-partisan, a non-profit organization that works to engage people across the country in the media policy decisions that shape everything we see, read, and hear. So we looked out at the landscape of media policy and saw that for too long a lot of policies were being made in the public's name but not necessarily with their consent. So we work across the country doing both a lot of original research, a lot of public advocacy, a lot of public education to get members of the public involved. So in terms of Save the News, there's a couple issues that we've been working on. About a year ago, we released a report which is now already feels dated, and if I could go back and revise, I would and hopefully will, but I think this came to the surface in that. One is this question about the role of non-profit journalism and specifically about our public media system and what is the role for our public media system currently in place in the future of journalism? Do we want to expand CPB, NPR and PBS? Do we need to expand the idea of public media beyond those traditional broadcasting agencies to a more non-profit web-based journalism and other forms? And if we did that, how do we strengthen the political firewall to make sure that there would be no influence from that government funding and what structures do we need to be put in place? Other things I'm interested in is the intricacies of IRS tax code in terms of how do we create flexibility for new hybrid models? I think a lot of people are saying, oh, there's problems with the non-profit model, there's problems with the for-profit model. What are some hybrid models we could look at? I'm really interested in news sharing and partnerships. Around the country we're seeing news sharing agreements between broadcast stations and others that are really subtractive to local news. So it's actually really detrimental to local news. We're seeing less local news being produced because of these. And then we're seeing really creative partnerships happen between non-profits, between non-profits and for-profits that are additive, but no one's really looked at what the legal standing around those is. All of these fall outside of the FCC's media ownership rules. So I'm interested in that. I'm interested in credentialing. An hour ago, a credentialed non-profit news organization sort of just got pushed out of the State House because they were non-traditional media. Now they've been credentialed already, they had space in the State House, and their lease is being terminated because of complaints from other people in the State House press corps. So that press release just went out and this is an issue I'm really interested in in terms of access to our government, especially as more and more non-profit generalism ventures are emerging. And then the last thing I would say is looking at new ownership models and what sorts of new ownership models are out there and how can we help transition other current models into new models. And then I would say other issues, net neutrality, media ownership, PEG and community access TV, LPFM, and others that are in sort of the larger universe here. Hardly know where to start. I've got so many thoughts going on in my head here. But the Reporters Committee was founded 40 years ago with the notion that the Reporters can help other Reporters who are involved in legal battles, everything from libel lawsuits to subpoenas, to access, to state and federal records. For 40 years we've run a 24-7 hotline for any journalist in trouble who needs a pro bono lawyer. We've been doing that. We've never cared who you were working for or whether you were working for anyone. So we've never had any journalist in trouble who ever came to us ever have to pay for a lawyer and we're very, very proud of that. Nevertheless we we love all technologies. Certainly at the Reporters Committee we're using all of them ourselves. We do not distinguish between what mode of delivery system you are using. If you are committing journalism we are going to help you. But we have some fairly major concerns. As Samuel Johnson once said no man but a blockhead ever wrote except for money. And virtually all of the issues we are dealing with these days have to do with money. If I thought nonprofits were going to nonprofit journalism was going to save the world great. If I thought a public system was going to provide all the news and information in an organized professional or by professional I don't mean paid I mean quality way I'd be fine with that but let me tell you something these days nobody's making enough money everybody knows you know I think we've been using the phrase newspapers here guess what folks people at newspapers don't call themselves newspapers anymore really they call themselves newsrooms they are using video they are using audio they are using print they are using the internet they know they get it they understand that what they have is something of value the problem is fewer and fewer the people who are working for them are able to earn a living doing it as I said from my high horse up there a little while ago they're doing a wonderful job of assembling the news and preparing it for dissemination the problem is nobody's making money on it and what does that mean well from my standpoint that really means two things number one nobody out there if you think about all the cases you read in law school that had anything to do with the first amendment right or the statutory right to gather information in this country 99% of them were brought traditionally by a news organization usually a community newspaper think of Nebraska press association versus Stuart Richmond newspapers versus Virginia press enterprise think of any state open records law in any state that you are from that was a local news organization that brought that lawsuit and as a result of that everybody else out there has access to that public information to that public courtroom if there's not enough money generated out there for this nobody's going to be out there to fight for this when it gets shut down here's my second major concern also having to do with access this is a double pronged thing those folks who are in control of those records control of those courtrooms they know you can't afford to fight them anymore so they're acting with impunity and the internet scares the hell out of them so what are they doing I'm going to a conference in New York on Tuesday sponsored by the judicial conference of the United States where they are talking about among other things putting plea agreements completely off limits because now that they're available on the internet via websites like who's a rat anybody can see information personal information is in some court records therefore we shouldn't make those types of records public anymore they understand that theoretically you know on principle you can't distinguish between records in a file cabinet and records on the internet so what are they going to do they want to just make them not public anymore we have to deal with some of the consequences here of technology it's sort of the not so pretty side I hope we're able to convince these people that I'm principal they just have to get with it and understand that we're all dealing with new technology and I think most journalists think hey the internet oh my god look at all the things we can do look what we can get look how efficient we can look how we can provide a 24-7 news cycle isn't this wonderful and you know what those elected officials and those appointed judges are saying it's like oh my god the internet look what they can do the mindsets are completely different and we're going to have to start talking about those particular problems as well and as I said I don't really care who pays for all of this I can tell you from being running a non-profit myself it ain't pretty you know what happens you can go out and get a grant to start up just about anything but if you can't show that you're going to make money or get somebody else to pay for it within three or four years you're toast and if you can't it's called sustainability and guess what nobody else wants to come in and sustain a program that has somebody else's name imprinted all over it so I'm probably a little bit more skeptical about this whole non-profit notion than most of the people in this room because the last ten years that's kind of been my life so off my high horse for another ten I come at this really I'm not a academic I'm not a theoretician I don't belong to any think tanks I'm a practitioner and so I want to share some of the observations that I have some of the concerns that I have and I'm not sure I'm going to offer a lot of solutions I will say though anybody who is not familiar with the reporters committee for freedom of the press you ought to go to that website today RCFP.org because they are an outstanding organization that many of us would not be able to get through the day without a couple of journalistic trends that I see one is I think the model of the objective of a news source is dying a quick death I think there are going to be very few commercially successful news outlets that put themselves out as being the paper of record or even claiming to a certain objectivity I think we've got a mess out there we've got this incredible variety of different kinds of news outlets I think it's more like it was at the birth of the First Amendment maybe than we've ever had and that's pretty interesting to me and I think it's a fruitful time I don't know where this is all going to go I make my money representing the media and I can't predict too much all I know is that I want to go on my seat belt and ride where the ride goes because it's fascinating, fascinating times to be in this field Josh talked a little bit about local news I think it's great that the local news at the broadcast level is not where you're going anymore but I think local news coming from newsrooms, from newspapers is actually going to hit a renaissance I think it's going to be more important than ever, I think the hyper-local sites are coming up I think we're going to find that that is where the real action is in developing journalistic quality a couple of concerns or observations one observation is that, you know, all you have to do is read about Google and China or the New York Times in Singapore and realize that increasingly as someone has said, the First Amendment is going to be a local ordinance out there and we've got to realize that we are increasingly going to be dealing with international norms and have to figure out how to do that and I think the Supreme Court kicking and screaming is going to come more and more to be citing those precedents I don't know where that ends up but I think it's something we all have to pay attention to do not think that you shouldn't have an interest in the law libel as it is involving in Britain or in Australia or in Singapore for that matter a second concern that I have you know, that the juries don't really like us still that's one thing that hasn't changed really in recent years and in fact, the most credentialed and the most professional news organizations are often being brought down by the ones that may be less professional others that have always been deemed unprofessional or up for the Pulitzer like the National Enquirer which camera presents and which broke the story that nobody else would touch about what was that candidate's name? Johnny and so a lot's changing there I worry though about an increasing concern for kindness out there in the world I go into court and I find myself talking to judges who are saying that's not nice that's not a good thing to do some of which may be true but I don't think that's the role of the law well, you know, I was in a court remarking in a libel case a couple of weeks ago and the judge was talking about sort of raising that sort of a point and I said well, you know, your honor the presence of the First Amendment is that these are decisions that are made in the newsroom and not in the courtroom to which she looked over her glasses to me and said well, the going to be made in this courtroom around the time the Pentagon papers Walter Bickel made a comment that I'm going to get wrong but it was something along the lines of that those freedoms are most secure which are never tested that to the extent we push the limit sometimes we will develop limits that before had never really been defined and maybe we were freer when they weren't defined I think as practitioners it's not a great time to be a First Amendment absolutist I think we need to be careful about the cases that we bring up on appeal we have to be very aware of the surroundings that we have the communications decency act in particular I see as very, very shaky there are a lot of people who don't think it's fair and I'm worried to death about Congress going back and visiting that and making changes in it the same thing with comments and blogging the comments on newspaper sites hard, hard decision to make you know people even a publisher the other day was telling me she hates comments and that she would not consider getting rid of them because competitively she absolutely has to have comments on her site and yet when I met recently with a dozen area police chiefs the biggest thing they talked about newspapers wanted to talk about lack of access to police reports and the police chiefs wanted to talk about those damn comments and everything about them in these comment sections and I could go off on that for a while but I think I think I'll leave it at that and I'll turn it over to Kim Thanks bro I'm also very pleased to be here I'm a little pissed though because I'm just wondering why this room is so nice last time I was here I remember the paint was peeling off the ceilings and there were no lights and it seems kind of unfair to me I worry most about what I worry most that new media is undermining the legal protections of old media or media generally and I'm not sure Lucy and Rob whether you were saying this exactly but picking up on some of your comments I'm concerned about the way that in trying to get the protections for all we lose some of the protections that come to take for granted or Rob's quote from Bickel I think is very apropos that that when we push the limits we suddenly realize that maybe the freedoms we have are not as broad as we thought they were and just to take it back specifically to some of the issues that we're talking about today I mean for example I think that the problems and the controversy in trying to pass the federal shield law arise from everybody's concern that whoa wait a second who are journalists does this thing mean that everybody every blogger is suddenly going to get this evidentiary privilege that we haven't given to them before I mean reporters privilege was fine and it was a great thing when professional news organizations were out there invoking it suddenly when people had to look at it closely and wonder whether the same privilege that the New York Times have been asserting for many years is suddenly going to be maybe able to be invoked by you know Sally Smith who's blogging about you know some school issue that concerns people and that may lead to the demise of the federal shield law it may lead to demise of shield laws generally although I understand Kansas just passed a pretty good one so I could be wrong about that I see it in my practice representing reality television shows and tabloids we used to take for granted the fact that if somebody was depicted on the street and shown on a television program that you had a first amendment right to show that person on the street and suddenly now we've seen people saying hey I'm on a reality TV show you're making a lot of money off of me yeah I was on the street but I want to be paid for that and so we're beginning to see the erosions of the First Amendment protection for misappropriation claims we see the same thing with TMZ and all of these websites that post court records online and make them very accessible again we've all assumed that we have a First Amendment right to access to the courtroom and access to documents and suddenly we're beginning to question that because gosh did we really mean that TMZ post every single embarrassing thing that was ever in a court record gosh maybe we don't really mean that and so now we begin to see a sort of backlash against all of that stuff and you know I guess that leads me to wonder how far Rob said we really want to be pushing some of these First Amendment issues it's great to be a First Amendment purist but I worry that judges as Rob describes his judge looks down their glasses at us and says what are you kidding me I read that story that's offensive and I you know frankly screw the First Amendment or I mean they may not say it as overtly is that that's really what they're thinking great well thank you so we clearly need about five hours for this panel given the number and the depth of issues that we could talk about we're not going to do that but at the risk of shortening the time overall let me take just maybe four or five more minutes and Josh call on you to raise this idea about the novelty of policy makers and policy actually now focusing on journalism and media and what we should do about it and I know you followed very closely and sort of in the middle of both the FTC and the FCCs ongoing examinations and hand wringing about what to do can you give us just a little overview of that process and kind of what's going on and how you see that impacting what sort of policy changes might actually get made sure over the last year the debate over the future of journalism has sort of hit DC really hard and every time a new hearing is called whether it's our fair senator here John Kerry calling his hearing or whether it's Ben Cardin's bill that was introduced under current bill or the FTC effort or the FCC initiative that's on right now we hear this flurry of protest what are they doing this you know how dare they look into this in fact Kevin Smith the president of SPJ has this really fantastic blog post where he writes about his initial reactions the FTC proceeding and then he talks with the FTC and realizes that they actually don't have jurisdiction to do anything that it's the FTC this is coming out of their basically their studying arm that they have a sort of think tank section of and this they're just producing a report that said producing a report is also what the FCC is doing and both of them are going to be making suggestions for possible policy actions down the road so I think it's vital vital for journalists lawyers citizens and others to be involved so right now the FTC has held held two hearings and they're going to produce an eventual report and they've really focused in on antitrust advertising and new forms of advertising especially online and copyright issues the FCC also has a sort of broad based future of media initiative which they're framing as modernizing our nation's media laws very broadly based sort of on the night commission report on the information needs of communities so really all encompassing again they're looking at things that they don't have jurisdiction over but they're going to produce a report and make recommendations to other parts of government as well as to own their own internal processes so their report is focusing on everything but has a particular focus on things that were discussed on this panel like new models around how are we going to pay for the news how has ownership impacted local news and a whole range of other models they actually released a 11 page memo with 42 questions you can find that on our website if you're interested Senator Cardin and Rep. Maloney have introduced this newspaper revitalization revitalization act that is somewhat flawed and it has sort of been sitting ever since it was introduced don't see that going anywhere but it presents some interesting ideas the shield law debate is ongoing and then the other thing that I would say just again a quick sort of list of other things that have real found impacts on the future of journalism the Comcast merger media ownership review the quarterly FCC media ownership review has started again the net neutrality decision that came down this week and the ongoing proceeding at the FCC the national broadband plan especially as we're talking about more and more news and information moving exclusively online we need to look at the fact that 40% of America has access to that the low power FM radio which will create thousands of new community radio stations and a bill trying to modernize the public and government access television and how that's funded and how it's rolled out in communities so DC is alive with discussions about the future of journalism right now and there's lots of opportunities to get involved and I'd be happy to talk with any of you about especially the FCC proceeding which wraps up May 7th the deadline for participating that is May 7th and I've got lots more information about that you can look at freepress.net slash future of media action that's great, thanks I suspect that at least a few, maybe more than a few of you on the panel might see the idea of extra government involvement and government help for the media industry is not necessarily a good thing but let's take that issue to start I mean following up on Lucy's kickoff idea that so much of what we're talking about today is about money and unless people one way or another can find a way to fund this business of committing journalism whether it's the New York Times or whether it's some great hyperlocal blogger a lot of this doesn't matter so how do we, is there a role for government either in direct support actual funding or indirect subsidies or maybe more on the nonprofit side is there a meaningful role for government to do this that isn't going to just screw it up can I have one thing just to set this up I completely agree with Lucy's comment the most interesting statistic I've heard about the economic change in the news business was Michael Zimbalist who started the online publishers association and now works for the New York Times pulled out a statistic that was that the volume of advertising, classified advertising that used to be in newspapers and is now on Craigslist was a revenue stream of $1.2 billion a year to newspapers which Craigslist because it gives away most of its advertising monetizes to the tune of $60 million and the rest of that money is just poof it's gone and that's what we're really, that's really the challenge that we've got to try to what was that number $1.2 billion a year now is $60 million to Craigslist and the rest of the money is just gone it's interesting at USC David Westfall did some calculations and he sees that right now currently the government subsidizes commercial media for about $2 billion a year in stipends including postal subsidies legal notices and broadcast licenses and the legal notices for that small newspapers I mean the postage is, you know, fairly obvious there are a lot of newspapers particularly the smaller ones that use the postal service to distribute and the same thing with legal notices that's a huge, huge source of revenue there's usually in each county one fairly normal size fairly large size newspaper that gets all those notices, if that dries up and you can certainly see why a government, a local government want to do it all themselves some of those newspapers just gone and those are indirect subsidies they have the result of being supported but they're not really sort of overtly designed to do that should the government more overtly yes, we're going to support something whether it's existing business models evolving models fairly directly through subsidies, support expanding public media, whatever no absolutely not you know, the role the first role of journalism is to keep an eye on government not to jump into bed with government now, the fact is there are certain types of indirect government subsidies that we probably don't spend an awful lot of time thinking about or worrying about even in the non-profit model if I can make a donation to a non-profit news organization and write it off on my taxes that is an indirect government subsidy right there there is perhaps some very modest role for government along those lines but I think anything direct gets to be very problematic Dan Gilmore actually has come up with what I think is a terrific idea which is let's see some fairly substantial government subsidies to get broadband into every home and then let news organizations take it from there but at least the road will have been open for them and two things I really like about that one is that it's a very important but at the same time a completely indirect subsidy and the other thing I like about it is that it is very similar to the postal subsidies that got the press launched in this country and continue to be important right up to this day there's real parallels there that you can see but direct government subsidies absolutely not I think that's a very dangerous road to go down Rob? I'd agree with that wholeheartedly I worry about somebody from the government saying we're here from the government we're here to help you I do think there's a difference in the kinds of subsidies as Dan points out the indirect and those that verge on content it's not in my interest because I know there's a publisher of at least one of my newspaper clients in this audience to say this but I have trouble understanding the principle behind opposing the legal notices going online that seems to me really a matter of trade protectionism and that putting them online actually makes a fair amount of sense even though it has a very adverse impact on a lot of my clients they also want to rush to the defense of direct government no I would just add my no to the string of no's okay I may know how this ends up I actually think that we can't say no unless we're ready to close down NPR and PBS which I'm not ready to do I think the question should be first can we create political firewalls that would protect journalists or journalism organizations who are being subsidized or can we create some people have suggested a public-private foundation so that the money would flow to a public-private foundation which would then put the money out to nonprofit journalism enterprises I think we need to explore this question more I think that there's examples abroad that we need to look at and we're doing some of that research now and I hope to have something for folks soon on that but I'm not ready to say no yet I am very ready to acknowledge that any policies we put in place any subsidies that would go in place would have to absolutely have a series of principles that guided those and we actually have a series that we've put up on our website but the first one has to be protecting the first amendment and I don't think we can move forward with the discussion until we figure that piece out but I'm not ready to say no yet I've always thought that the way public journalism is being discussed the fact that it works as well as it does is one of 20th century's biggest miracles I would also point out that NPR does news a lot better than PBS does and NPR could survive without government subsidies and I think that those two and PBS couldn't and I think those facts are related so let's shift to the idea of direct support and one indirect way obviously is through the tax code and non-profit status of some form either direct or some public-private non-profit partnership is a obvious big way to do that so what about Dan's idea that one big problem with a non-profit model is we currently have this limitation that if you're non-profit you can't endorse you can't advocate should we do away with that something that we need do we need news organizations who are benefiting from non-profit status to be able to do that are there enough other voices and if we do do we worry about giving up that barrier recent as it apparently is Dan you want to argue with yourself well I'm not going to repeat myself so the question Dan maybe a question to throw back to you that I am curious about is in this sort of new world of media journalism where there are a million squared voices how important is it that organizations that are sort of benefiting from non-profit status if we think about major news organizations that shift to a non-profit how important is it that they actually be able to play this role when there are a zillion other people who can stand up and scream and yell and endorse candidates well that's a good question and I'm not really sure how important it is that they be able to do that other than the fact that there is a limitation on their first amendment rights which just strikes me as completely outrageous for a news organization I've actually talked with Paul Bass the founder and editor of the New Haven Independent about this and he's told me he doesn't want to endorse it's he's absolutely fine with this he thinks it's part of the price of being a non-profit so maybe I am arguing about this in somewhat of a theoretical way rather than a practical way on the other hand I do think as more and more of our local journalism becomes non-profit you're taking more and more players off the field in terms of being able to have a vigorous discussion of politics I can also tell you that the most useless endorsement a news organization can make is telling us who to vote for for president I think it becomes very useful when you're talking about a myriad of local boards and you know planning commissions and sewer boards and things like that where as a citizen I am almost grateful to kind of outsource my vote to journalists who are keeping a close eye on this every day and if I trust them to tell it to me straight I'd like to know who they think I ought to vote for because I'm kind of half paying attention and I don't necessarily who I should go in and vote for you know it's funny what our local papers where I live have become extremely reluctant to endorse local races I think they're afraid of offending anybody and I know the people who work for these papers so there was a local election a few years ago where I actually called up people at both papers and said look I know you're not doing endorsements this year who the hell should I vote for and we had an off the record conversation that I found very useful but I would have liked them to endorse of course if they were non-profits they wouldn't have even been able to do that probably they would have been endangering their non-profit status just by having that conversation with me well you know one of the other dirty little secrets about what used to be I think back in the days when I was in a newsroom kind of a vibrant endorsement system I remember I worked for the same Paul Pioneer press for a very long time and they were always very politically active in election season they had an editorial page where they had seven or eight people on it and they would bring in all sorts of candidates and they would do a lot of work they would interview everyone they would sit down they would deliberate they would publish their endorsements they are now down to one and a half people on that editorial page they couldn't do an endorsement and do it in an effective informed way if they wanted to and yet there may be other sites I mean I can't talk to that vicinity but there may be other sites that are taking up that role that are expressly advocacy for particular candidates or causes I mean I do think I agree with you Dan but I think we have to be careful about having this naive view of what the First Amendment does and is I mean the idea of limits on First Amendment rights of a news outlet well you know what about the broadcast industry they've been dealing with significant limits on their First Amendment rights for a long time and doesn't seem to be in question but I think that's a very interesting new book out in which he says that is part of the what is to be celebrated about our system is that we actually have several different ways that the First Amendment plays out in different media and rather than a sign of inconsistency he says I don't know if I'd buy it but I find it very interesting he says that's a sign of strength so sort of narrowing down from thinking about all media activity and all journalism in fact to Josh something you said initially and also there was a reference in an earlier panel to Clay Shurkey's suggestion that what we really need to get through this and see what's on the other side is a whole lot of experimentation by a whole lot of people if that's the case how do we think about whatever it is whether it's government support whether it's indirect subsidies of some kind that supports that model rather than something that's aimed more at like existing business models are the ways to do this so that we actually incubate so you know we're really focusing on entrepreneurial ideas new ways of doing this whether it's some sort of fund for you know R&D and new startups is that an option instead of just looking at how do we kind of keep some version of what we have going right yeah the government has invested incredible amounts of money in researching the ails of the body so might we also think about investing a bunch of money in the ails of the democracy I think there is an opportunity here to do something like an R&D fund I mean it's interesting you should mention the broadcasters public interest obligations and some of the free speech things that go along with that at the FCC's recent workshop on the future of media the former FCC chief economist said let's get rid of public interest obligations instead you know broadcasters say their public interest investments equal I forget what the number is let's just charge them a rental fee for the public spectrum open up get rid of public interest obligations and put that money towards some sort of fund for journalism or local news now what that fund might look like we can debate but I would love to see something like the night news challenge which I think is one of the most really interesting sort of foundation efforts I've seen around journalism in recent years now the problems that go along with it are similar to what Lucy said you know they fund you once off pretty much and then you're out in your own and you got to create a new project to get there and that sort of thing so one things I'd like to see and they fund maybe seven projects a year maybe what if we had something that could radically expand that maybe it was money from government that ran through night maybe it was something else but could we fund that sort of experimentation in a way that's not going to get at content could we fund some sort of infrastructure whether it's broadband or other that would help these emerging technologies and experiments get off the ground could we create a training technical assistance fund to help you know do some of the how do you set up a business model like the citizen media law center is doing here these are good questions I think I think the problem is that no matter what you do it's it's fraught with politics I mean net neutrality for example even the term net neutrality is in itself a very non neutral term you know bringing broadband to rural areas which I think is a great idea it reminds me though of the you know the national interstate highway system which on the one hand it spurred communication on the other hand it favored suburban and country areas over the cities and led to the demise of many great cities throughout the country so it's not really neutral although it's presented as being neutral I could see the big broadcasters getting really upset about broadband suddenly available everywhere and undermining their great you know monopolistic business practice on the other hand look that's I mean if government has a role it ought to have a role in building infrastructure and at least trying to maintain at least the semblance of neutrality and allowing the market to kind of figure out where things are going to end up any other thoughts on this before we move on so John before we leave this subject over I want to come back to the point you raised which is kind of the flip side that there's also perhaps some need to make sure that government steps back and stays out of the way at the appropriate moments do you want to say a little more about what you have in mind what we might need to be worried about and how that could cause a problem I can mention one example I mean there is we have been expecting for several months that Chairman Boucher is going to be dropping a bill on sometime in the next supposed to be March it's probably sometime in April now regulating designed to regulate behavioral targeting of advertising and there are ways to look at behavioral targeting of advertising as a win for everybody if it's done in a privacy protective way it allows advertisers to reach consumers who are actually interested in their product it allows consumers to see ads that they actually might be interested in rather than things that are of no relevance to them at all and at the same time it might help it might help media companies content providers find an additional foundation another leg for the stool to keep these businesses alive so that we're not having to talk so much about how the government can bail out the media so I think we need to be very careful as we move down the road to regulating you know I I'm going to pass on a comment I was going to make so let's move on I mean one of the most intriguing things I heard from several of you in the beginning comments was this idea that you raised first Lucy of a backlash that you know there is a risk as we open up doing journalism to the whole world that some people judges legislators people with control over information don't like that for a variety of reasons and as Cam said you know I think we do have to worry maybe there are different ways to deal with it but we do have to worry that this rush forward into this very new world may have negative consequences so let's throw that out I'd love to hear more about that and think a little bit about what do we do about that short of saying all right well let's not let those people go do that and let's not give coverage to citizen journalists under shield laws and it's not let everyone have access to government records there are two areas I'll talk about that one has to do with what public officials think about all of a sudden everybody having access to their records and their proceedings and then I'll also talk about the shield law because I've been heavily involved in actually negotiating that that monster you know what I and I'm going to talk and this happens with all public officials but I'm going to focus on courts because I think we have a lot of lawyers here in the office and you'll understand how judges think maybe you will maybe you won't but the phrase I keep hearing from them is you know once it's out there it's out there I can't unring that bell once information is released it goes viral I have to protect my jury pool my sole obligation is to make sure that there is a fair in panel jury I have to protect the identities and the privacy of the jurors I mean that's a concept I never used to think about privacy of the jurors I mean 200 years ago we'd go to any trial in this country walk in and everybody knew who the jurors were because they were your neighbors but now the privacy of jurors is a huge value you're also seeing that judges don't like technology because a bunch of them have been really stung by jurors who are there looking up things on their black berries tweeting twittering whatever you know about what they learned that day in court and judges above all they're good people they try really really hard and what they really really love is control and they view it as their responsibility to control things and that includes all of the information related to a case because something comes to them it's their responsibility to get it taken care of and then moved but as I they keep telling me over and over again once that information goes up on the internet there's nothing they can do to get it back and they are very very cautious now as far as who's going to be covered as a journalist there were several issues going on with the debate over the federal shield law that caused some stickiness but right now where we are and greater detail about this is in your prepared materials the house has passed a bill on a voice vote about a year ago that is a very very good bill except for one respect it limits the coverage of who's a journalist and basically it's a livelihood test in other words you have to earn if not your entire living then at least something you have to have a track record of having earned something as quote unquote professional it knocks out a lot of freelancers who've never had a contract before it locks out a lot of student journalists on the senate side we've been able to persuade them or we had been able to persuade them that a function test a la the von Bülow test that is in effect in most of the federal circuits is the way to go and that is you go to the way it is now in the federal courts you go to the court and say this person was behaving like a journalist that at the time they gathered the information they represented to their source that they were doing journalism that they got the information in exchange for a promise that they were going to go do journalism they did something to it some originality to it and then they all along intended to disseminate it to an audience and we got that adopted but there's a problem and actually there's two problems Senators Feinstein and Durbin and um they want Senator Feinstein describes it as a professionalism requirement she doesn't want just anybody to be able to be a journalist Durbin is actually a bigger problem because he's Harry Reid's red hand man and if he says it's not going to the floor it's just not going to go to the floor so he wants some sort of language and we've been negotiating with him basically what we're trying to do is set up some language and I think we'll be able to do it that shows that the person seeking coverage as a journalist has some sort of track record not necessarily earned money doing it but has actually been published somewhere internet, print, broadcast, whatever at some point in the recent past that you can hang your hook on it so that you don't have a problem with citizens witnessing a crime or citizens being involved in a conversation being summoned to a grand jury to testify and they all of a sudden decide they're a journalist and they go off and blog about it I think it's a valid concern I think we'll be able to do something about it the interesting thing about the shield law and the test that you described is that it's designed to look at the act of journalism after the fact one of the things I'm curious about is could we apply a similar test to the credentialing question so that we have the center for independent media as a nonpartisan nonprofit network of websites that covers state houses across the country they've got about 7 sites now and they've been having a terrible time getting credentials in some state houses and at the federal level I think that basically is the test most state houses use you go in there and say I've been doing this type of work a lot of credentials are not issued by a government or by a you know they are actually issued by a self-governing board of other journalists it's a problem right and one of the things that's in the policies of that committee at the federal level is this claim about how you make how the publication makes its income so there's actually a litmus test in there for amount of foundation funding versus advertising funding which can really strike out a lot of nonprofit journalism entities from being eligible so it's interesting I wonder if we could change that so that to open up because I think you know for the last 40 years we've had a magazine and for the last 15 a website we've had a newsletter we do special publications and the department of justice refuses to recognize the reporters committee as a journalism organization so but the other side of that is that there are only so many seats in the press gallery and do you let the blogger with an audience of a thousand readers take a seat away from the New York Times well if you believe current numbers those seats are opening up more and more that's true and the blogger probably is more readers than the New York Times so Cam I want to go back to your concerns about having too much privileges for too many religious spread too broadly really diluting and maybe risking the privilege for all is there a way to draw some line with things like shield laws whether it's based on the act of doing journalism or something else where you really cover people who in a meaningful sense should be but it doesn't look like everyone it isn't as scary doesn't have the same risk I don't know where that line is and I'm not that knowledgeable about it so I think Lucy should draw that line but I think some I think some kind of line has to be drawn and I just wrote down here on my paper antibiotics it reminds me of antibiotics because everybody who's sick wants antibiotics but if everybody gets antibiotics then antibiotic strains antibiotic resistance strain of bacteria will rise up and kill all of us it's the same thing with the First Amendment everybody wants the protection of the First Amendment the reality TV shows the tabloids the bloggers the TMZ's of the world and I represent a lot of those people and I'm the first one to say hey this is news gathering I know it looks like entertainment to you or it looks like whatever to you but it's news gathering and it ought to be protected by the First Amendment and lots of times we're successful in arguing that but eventually we we run into First Amendment resistant judges if we can call them that who just don't like the way we look and they write opinions and the law changes and the law is changing in a number of these different areas that's going to end up harming all of us so we need somebody to be the czar the First Amendment czar to say you can make this argument you shouldn't because you're going to get all of us sick the communications decency act is a really good example of that and I think Rob mentioned that before it's gone wild everybody now claims the protection of the communications decency act and I'm here to say that we're all in for a big problem because somebody is going to kill that communications decency act before we know it and we're all going to be sorry so I'd love to have all of you jump in and address this but there are two ways to look at this is that things like the communications decency act they go too far there's a backlash we're all in trouble the other way to look at the CDA is you know we've had it for 12 years now or 14 there've been some really crazy cases that people just hate and yet by and large judges are still following it congress hasn't gotten too worked up and jumped in it could be that rather than all of us ultimately dying we're going through a period where you know it's sort of shifting expectations and as you know lots of citizen journalists begin to get these privileges and use them it won't seem like such a big deal anymore what do you think is this should we really worry we're going to poison it for everybody or is this just a rough period and we're going to come out the other side I think we just haven't seen a nasty enough case where involving a senator's daughter exactly it's you know something will happen I mean it's not something I worry about every day but it's certainly something I've thought about section 230 and quite honestly it has to do with a lot of these commenter things I'm a little bit sensitive to all of that right because I get bashed in those comments a lot but sauce for the goose sauce for the cat yeah yeah but you know there are not that many areas of the law or that many places where we have to worry about who's a journalist and who's not there really aren't because access laws by and large whether you have access to a court access to a court record access to a city council meeting that's not any more or less of a right than a citizen has there are plenty of examples of that you really only run into that problem when you're looking for a special privilege for someone subjecting journalists to something that the rest of the public doesn't shield laws are I think the most obvious example of that and credentialing I in my head credentialing is more of a time place and manner restriction than anything you have to give people it's a limitation on your capacity and you have to pick certain people to give preference to because those people have a broader audience so in those cases fine and then when the biggest credentialing disputes we get involved in there's not a heck of a lot we can do and it has to do with sports and high school leagues and what you can do to resell the photos you take of the you know the kids basketball game in Wisconsin or what you know what can you do with what you shoot at the masters everybody thinks that's a public event well it's not they can tell you precisely what to do there tell the club that doesn't admit women yeah it's just and a lot of folks think that journalists have all of these rights to big sporting events and no they don't but I agree with Kim about the worries about the effect of everybody claiming these first amendment rights but I look at it sort of like people say it would be a great form of government to have a benevolent dictatorship I don't know how you come up with that czar and I think that's fundamentally antithetical to our system to say that we could have a czar who decides who can be a journalist and who can't so that says we have to go to some other kind of solution and you know the only one I've come to is one that's somewhat Pollyanna-ish which is that we somehow come to a realization that we're all in this together because I worry about the copyright issues that go on when we all you know when our clients are benefiting on both sides of the copyright equation and I worry about the credentialing issues where it becomes a faction of the field coming against another one and you know although that might serve short-term gains I'm not sure it serves long-term gains just this week on Tuesday I got Monday and Tuesday I got two calls about this and it's a technology example reporters in New York one in New York City Hall one in Westchester County called and said all of a sudden there are new rules passed by the city councils and I think in New York it was the case of it was the mayor's office all of a sudden they're no longer allowed to bring in certain types of technology to the entire city hall they can't bring in cell phones they can't use the cell phone cameras they can't bring in their laptops they can no longer go they're not allowed to take photographs of anyone in the hallways and I said so they wanted quotes from me and what I was able to put together in the last I don't know six months that I've been getting these calls have been kind of trickling in it's usually a situation where somebody some citizen has come in with you know a geeky looking video camera and they go around and they start taking pictures of everybody in the hallways and then they demand to get in with the press section at press conferences but then they will go in and in the case of this one guy he would just go into a city council members chambers in the waiting room put a camera in the secretary's face and demand to see the guy and then go to the county recorders office and harass all of the employees what have complained to their bosses about a hostile work environment so what are those folks supposed to do now most of the time I have to admit when I was a lawyer I did have to deal with professional journalists who behaved in the same way but by and large the folks that do that every day aren't quite that rude have you read Gawker or TMZ that's exactly what they do they write in people's faces and film them and there's a backlash to that so the way they do it and they've got city attorneys who say look you can't ban it so they just ban it for everybody and say no technology in the building thank you everybody all the rules apply to everybody and I never really thought about this one reporter who called me said you know I used to take my cell phone that they had because all the old old style courthouses and city halls had those awkward funky phone booths and he said I just go in there and call but then they ripped out the phone booths because they didn't have to have pay phones anymore because everybody had a cell phone and now they've told me I can't have my cell phone so I essentially cannot communicate with the office anymore I don't know which one of our founding fathers it was but one of them said there's a certain amount of abuse inseparable from the proper use of anything and in no areas that more true than of the press and I think that's exactly what we're hitting here John you were trying to jump in I was just I was just I was just thinking about the flip side of this government official worrying about somebody who if you don't ban the device you're very likely as the government official to be facing a lawsuit based on content based restrictions on who can be admitted exactly it's a thorny problem so thoughts on what we do we can't have a czar that raises all sorts of problems you can't just say you stay home you come in either among mainstream journalists and new journalists or among certain new journalists so is there something we can be doing to solve the problem short of letting courts and others just ban everyone go ahead Dan I've been sitting here listening to this and I've been holding back because I don't have even a remote possible solution to what I'm hearing but what really kind of strikes me is this idea that well we don't want to push the first amendment too far because we don't know what official done will do you know it seems to me that it's fundamental to the first amendment that the first amendment is not for journalists it's for everybody and some of the problems that we're discussing here about credentialing are difficult ones because there's no question that you can't let you know 10,000 people into a courtroom even if 10,000 people might want to go and write for their blogs about it but I think that any potential solution to the issues we're talking about that involves trying to make a decision as to who's a journalist and who isn't is just really troubling to me and as I said I don't have a proposed solution to any of these issues I just hope that as we think through these issues we can hit upon possible solutions that don't involve making that kind of division I think that lawyers all of us need to just be more conscious of the fact that we're going to lose some of these arguments and when we lose them we make bad law and look you know I have made these arguments and I have lost them and there is precedent out there with my name on it that I regret having brought such a case and convinced a client to make such an argument one thing I think we are seeing now Lucy mentioned this which is a result I think of money but it's I think had a good effect which is news organizations don't fight subpoenas as often as they do they just don't have the money to do it anymore it used to be when I first worked at CBS every time you got a subpoena from anybody you went in and filed a motion to quash if you you know if you couldn't get them to draw it now they tend to cooperate they'll try to carve out a small little world and say can you know we'll give you this two minutes two minutes of footage if you'll go away there seems to be less of a visceral you know we're going to move to quash and and you know part of me thinks that's a good thing because the more those arguments were being made the more the first amendment was being pushed the more bad law was being created and I think as a result of financial considerations people have tempered the first amendment arguments and I think the result has been good one of the practical ways that has played out though that I've definitely noticed over the last ten years as more newsrooms were using the internet more and this is both in print and in broadcast a lot of them would challenge a subpoena in the past but now they're saying okay we've got all this digital archive of the photos we shot at the protest or we've got those notes and if you don't have the protection of a vibrant shield law and you can't make the subpoena go away what you do is you put the whole thing up on your website before you turn it over to whoever it is they want it and say as long as we're being transparent about what we have and we're not favoring one party to this litigation maybe that's a way to do it is it perfect no absolutely not but there are some organizations that have done that and you know it's hard to fault them for it it's been just a couple of minutes on one last issue that I think might very well work back into this be careful how far you reach be careful what you might do because it might ultimately backfire and that's the idea of anti slap laws in various states lots of states now have them these are laws that allow someone who has sued to go into court with usually a special motion to dismiss very early before any discovery happens and essentially claim that the lawsuit has no merit and is basically just a lawsuit brought to shut up criticism or shut up unwanted speech rather than being genuinely designed to resolve the legitimate grievance and they provide a way to get rid of the suits early and they very often provide attorneys fees for the person who brings the suit if they prevail and more and more you're seeing all sorts of people using more and more we're seeing citizen journalists non-traditional journalists use them do you see anti slap laws and I know a couple of you have some first hand familiarity with them do you see anti slap laws playing a bigger role in protecting the ability of sort of non mainstream media to do the job of journalism and really get out there and we should be pushing for in more states and should we be worried what we were saying a minute ago if everyone starts to bring them and too many people start using them where it really is a decent case judges will start saying well forget it we're not going to really pay attention to those I don't worry about that at all with the slap stuff and I think particular I think it's California's law that I like the best the ones that work the best are not the ones that provide protection just for shut up and just so you know there is an effort there has been a bill under way I don't know if it's been dropped yet or not a federal anti slap law which I think we're probably eight or ten years away from getting anything done and it provides certain strange there's some strange elements to doing something on the federal level when basically you're dealing with a state cause of action but you know there is an effort by a bunch of folks in California to get a federal law passed there's certainly at least under the current law there's certainly no anti slap protection for journalists in Massachusetts I actually wrote an affidavit for the defendant in a libel suit in Massachusetts a woman named freda hollander who was a community activist and journalist who tried to claim anti slap protection when she was sued for libel by a developer in the north end what was interesting about it was that her lawyer pretty clearly understood that the anti slap statute in Massachusetts did not apply to journalists so therefore he tried to construct this very narrow and interesting argument that the anti slap law should pertain to certain types of advocacy journalism that freda hollander was actually engaging in the sort of political activism that the anti slap suit was designed to protect only she was doing it as a journalist and they lost it pretty much every step and ended up losing before the state supreme judicial court a few months ago so what that means is that freda hollander wants to protect a source or wants to cover the local football game she wants to be a journalist but if she's seeking the protection of the anti slap law she wants to be sure she's not a journalist makes a lot of sounds right you know one thing that I think is happening because of the protections of the cda is companies are now going after the people who actually post the complaints because I think they're beginning to realize oh we can't do this so I have a client who posts a lot of consumer complaints and he told me now every day he gets an email from somebody who posted a complaint who says could you please take my complaint down the company is threatening to sue me I really don't want to get involved in this please just remove my post and he doesn't want to because he doesn't want to have to give into this on the other hand he feels terrible for the person who's getting sued or threatened to be sued and that's where I think an anti slap statute like California's would be great if there were some kind of national or there were more of them because those people are clearly being shut up by the threat of litigation it's usually real estate developers too that was certainly why most of the original anti slap laws were there real estate agents what does he do he hasn't asked me about I think he was going to take down I think he's changing he's very conflicted he's a very pro consumer but on the other hand now he feels like people's lives are being ruined because of stuff they wish they hadn't posted all right all great stuff let's stop there I want to make sure we have a chance for all of you to ask questions wide open field of great issues so be sure to push the button so we can hear you fantastic day thank you so much here's where I'm confused I'm about to put up a website so I'll be functioning as a publisher and editor and a writer so especially in terms of comments because I'm trying to decide whether to have them open whether to have them moderated whether to filter them prior to publishing them the cases that you've talked about you've got situations where in old school as I was taught as a journalist if somebody comments anonymously you protect that you would be in contempt of court to protect that anonymity what I'm confused about is why that anonymity doesn't appear to hold what if somebody comments anonymously on a website you still have protect I mean there's I'm talking about the person commenting we've got people within the website essentially deciding you were talking about somebody decides in one sense if the slap law applies they're a journalist or not a journalist well I'm sort of hearing the same thing about online journalism in one sense you're a journalist if you're going to be held in contempt of court to protect the source and then in another sense you're not a journalist because you use privileged information that a commenter didn't supply to you with the intent of providing you with a story they've done it clearly anonymously or sued anonymously or whatever you want to call it and then you've researched a story so it seems to me that they have implicitly and explicitly said to you this is not for publication to be attributed back to me personally and as a writer I constantly have people say to me you can't comment you can't attach my name to that comment I couldn't exist as a journalist or a writer with any credibility if I ever sort of broke that you're on the record, you're not on the record that's a constant thing that you deal with in terms of journalism so I'm confused legally and ethically, not ethically actually ethically if somebody commented on a blog I ran and the understanding was it was anonymous I'm never out to that person I think that's unethical what I want to know is is it legal or not because it seems to me we're talking about it being well I'm going to tell you as a journalist I don't think it's ethical to out somebody who has made an anonymous comment why don't we let, we've got three or four people ready to jump on this with a good answer so let's let them get started on it John you want to start I'll jump in, there are lawyers who have made the argument blog posters are equivalent to confidential sources I find that a very dangerous road to go down and if I were operating a website I would not want to have a privacy policy on my website that says I will never give up the names of posters to the website and it partly goes back to the point that Lucy led with which is media companies people operating websites have increasingly limited resources and how much money do you want to be able do you are you willing to spend to fight a subpoena to identify somebody who who has merely been a poster or commenter on a blog as opposed to somebody who's been a confidential source for you as a journalist on whose confidential information you've been basing your own reporting and I think there's an important distinction as a practical matter and I apologize I'm going to have to run to the airport but as a practical matter on our website I would never promise anyone that I would you know I would negotiate with them so you post on here under certain circumstances we may have to identify you the same time if I were going to be writing an original story using an original source and I make that promise to keep that source's identity confidential in my mind that's a totally different thing and in each situation you're having a negotiation with that person but if it's in your story it's it would be depending on where you live and what court you're in it would be you know something you could protect but I would never say on a the comment section of my website I will protect you at all costs because you can't but the law does provide some protection for anonymous posters right that you've got a subpoena the site and the site gets to you don't necessarily have to give them over but the protection is certainly much stronger if you treat the person as a source on the other hand treating a poster like a source is I think a serious mistake yes you kind of I'm sorry Lucy's leaving but you kind of address the Massachusetts case which is the legal aspect of it but I'm concerned about when you talked about nonprofits doing journalism when you haven't I mean Lucy I love your organization but you're an advocacy group for First Amendment issues and when you're doing journalism you have a point of view and there are other examples then not all nonprofits are not pro-publica which is you know neutral or whatever and so I'm just raising the issue of more from a journalism ethics point of view because you like I said you kind of covered some of the legal aspects of it but what does that mean when you have a validly organizations with a valid purpose or reason or point of view doing journalism there wasn't a single newspaper in this country 250 years ago that didn't have a perspective and we can advocate something I mean that's what this country was founded on and yes we do have a perspective and we do advocate certain things within the parameters of the IRS code I would need to point out for the record but it might my coveting about that really had more to do with the fact that the Department of Justice does recognize other organizations like the National Security Archive and Pogo and other folks who have similar websites and they are considered journalists even Fox News even Fox News they don't have a point of view Lucy thank you so much sorry you have to run but we all thank you yes so this is a question one of the things I've heard kind of to summarize the arc of the day is sort of this argument or this feeling that you know reporting this original reporting that we do is publicly valuable and then be sort of the the realization or the sad understanding that the market based mechanisms that once provided that public value are at least temporarily stopped working and then see when it gets this question of is there a role for public subsidy or public policy there's this immediate visceral reaction against it so what I'm hearing your ultimate argument as being is that well the market will take care of it eventually the market will turn around and things will be things will be okay and I just wanted to ask is that what you're arguing no not at all I would suggest that a lot of the talk about subsidies and well especially about subsidies is geared toward thinking about how we can preserve the journalism order as it has always been aside from wanting my students to get jobs which is a very real concern I don't I couldn't care less if the journalism order that we've had up to this point survives as long as we have journalism you know we had this incredible expansion of journalism as a business from 1960 to 2005 and it may have been that that era was the anomaly and that now we're returning to something a little bit more historically normal you know the Washington Post I don't have numbers for you but the Washington Post like any news organization has cut and cut in the last few years and you know what they have finally cut to the point where the newsroom is about the same size that it was when they broke Watergate so as much as I want to see good jobs for journalists especially for my students I don't think it's necessarily the end of the world that the journalism business may be shrinking toward a more sustainable level I don't think anybody thinks it's going to shrink to zero last year the Boston Globe was in crisis this year at a much smaller size than they were a few years ago they seem to be at some sort of equilibrium and I certainly hope that that continues yeah I think Dan the dates you just gave 1965 to 2005 are also you might say the years of mass media consolidation as well much of that consolidation helped cause some of the problems that we're in right now and media companies being over leveraged to the point where they were cutting newsroom jobs to pay for debt that they had collected gathering more newsrooms under their boat so you know while we celebrate that growth we should be careful about where that growth came from and what it means for us now I also think that we need to look at this idea of market failure much closer I don't think anyone's done the big market failure analysis yet that needs to be done here we need to look at the stats that we should keep in mind the Pew State of Media JLab at American University a new book by John Nichols and Robert McChesney and also a recent blog post by Steve Butry all make the claim that there's not enough foundation money or well Steve doesn't make this claim not enough foundation money to support the extent of journalism we need Steve says there's not enough foundation money to replace all of journalism out there there's also a sense especially in the Pew State of Media report that just came out that the way advertisements are going right now that there's not going to be enough advertising dollars and then there's this question of paywalls whether that's what subscription model work all said, this gets to your point I do believe that we're facing what could be a market failure and going back to I'm sorry Lucy left again but going back to what Lucy said the difference between librarians and journalists is that taxpayers will still foot the bill of librarians I think we may need to look at that eventually You'd be surprised It's interesting that you picked 1965 when I teach a news gathering course I tell my students that it really began with the posts reporting on Watergate and Woodward and Bernstein became the sort of first journalist rock stars and in that moment which in some respects was a high point of journalism it was also the beginning of the low point because I think what happened was you had this cult of journalists as rock star and a lot of that led to some of the excesses I think that we have seen in journalism and you know maybe we are in an appropriate winnowing period where we are returning to some more normal state I don't know but it clearly something happened in the late 60s and 70s to change the way that journalism had been practiced in the United States How that news organization especially financial journalists they have not been paying sufficient attention to Wall Street especially when Wall Street has been developing some very dangerous products What happened? Why did they keep quiet about it? While we are at it why were they complicit in the run up towards the war in Iraq? One interesting point somebody said earlier if you are being paid by government then you are going to be cowtowing the government but I recently saw this whole montage of Katie Kirk walking with I think it was I think it was Joe Biden for an interview she was doing all these nice montages I think we have seen especially among some level of journalists not all by any means but some sort of broadcast mainstream journalism cozying up to power to get the interviews to get the eyeballs to get the ads and so we shouldn't dismiss the way that commercial journalism also can lead to cozying up with power as well We tend to cover many stories as if they were sporting events and certainly in the run up to the financial crisis there were a lot of news organizations that wanted to cover the winning team It was also a very complicated story and there weren't probably not a lot of journalists who had the sophistication to understand it and also cozying up to the political powers is there's nothing new journalists used to play poker and smoke cigars with Harry Truman and everybody knew about Roosevelt's illness but nobody wanted to disclose that access has always been the issue and getting access means cozying up to people Any other questions? You obviously know there's a reception right afterward and you're anxious to get to that so let's move along to that Let me thank our panelists hugely for their help