Category Archives: blogging

MEDIA: David Carr has seen the future

By Christopher B. Daly 

And the future for journalism is . . .

  DIGITAL. . .

                                           PROFITABLE . . .

                                                                 AND HERE NOW!

Focusing on the recent decision by Ezra Klein to decamp from the old-school Washington Post

Ezra Klein, pointing to his major asset.  AP photo

Ezra Klein, pointing to his major asset.
AP photo

when the legacy medium could not accommodate his demands, Carr sees an array of “digital natives” who are managing to do good (or at least decent) journalism and make money at the same time.

 

If true, three cheers for those on-line winners!

 

Here’s Carr’s take:

In making the switch, Mr. Klein is part of a movement of big-name journalists who are migrating from newspaper companies to digital start-ups. Walter Mossberg and Kara Swisher left Dow Jones to form Re/code with NBC. David Pogue left The New York Times for Yahoo and Nate Silver for ESPN. At the same time, independent news sites like Business Insider, BuzzFeed and Vox have all received abundant new funding, while traffic on viral sites like Upworthy and ViralNova has exploded.

All the frothy news has led to speculation that a bubble is forming in the content business, but something more real is underway. I was part of the first bubble as a journalist at Inside.com in 2001 — an idea a decade ahead of its time — and this feels very different.

The web was more like a set of tin cans and a thin wire back then, so news media upstarts had trouble being heard. With high broadband penetration, the web has become a fully realized consumer medium where pages load in a flash and video plays without stuttering. With those pipes now built, we are in a time very similar to the early 1980s, when big cities were finally wired for cable. What followed was an explosion of new channels, many of which have become big businesses today.

Still, some things don’t change all that much. As Carr points out, it still takes some serious money (about $25 million, he says) to launch a big site, and it takes time (5+ years, he estimates) to work out the kinks, find your audience, build a staff, and earn a reputation for being worth a visit.

[FULL DISCLOSURE: David Carr is no longer just the most influential columnist writing about media and the web, but he is also a new colleague of mine on the Journalism faculty at Boston University, where is the new, inaugural Andrew Lack Professor in the economics of journalism.]

 

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Narrative: how long is too long?

By Christopher B. Daly 

That’s a question raised by a controversial recent piece on the Grantland site and by a critique posted today on the Times op-ed page. As Jonathan Mahler puts it:

There’s a lot of excellent magazine-length journalism being done now, and Grantland publishes plenty of it. The problem is that long-form stories are too often celebrated simply because they exist. And are long. “Long-form, on the web, is in danger of meaning ‘a lot of words,’ ” as James Bennet wrote recently in The Atlantic, the magazine he edits.

Turns out, there are some unknown number of readers who like long articles and books and will hang in there through thousands upon thousands of words (provided, I assume, that the words are actually interesting).

Don’t take my word for it. Look at sites like longform and longreads. Get comfortable.

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Partisanship in journalism: a discussion

By Christopher B. Daly

For readers’ convenience, I am posting some material that airs out the issue of partisanship in the news media. In sequence, here are:

1. A NYTimes invitation to a Sunday Dialogue, a feature of the paper’s Sunday Review section in which readers are asked to respond to a short essay.

2. My reply as published on Dec. 7, 2013.

3. A thoughtful email that I got from a reader, who gave me permission to post his ideas here.

4. The Sunday Dialogue replies by people other than me.

5. The original author’s reply to the replies.

6. My reply to that reply.

08letters-articleLarge

 

How Fox News, MSNBC and others present the news.

 To the Editor:

An autobiography gives an intimate account of a life, but to get the larger picture, you also need the biography.

The same goes for news. Relying on one source, or even on several sources with the same bias, will leave you with only part of the story.

That’s why the much maligned right-wing media is just as important as the so-called mainstream press. Fox News and others on the right certainly have a deeply embedded conservative bias, but the liberal bias on the other side is just as pervasive. Taken together, they roughly fill each other’s omissions.

Fox, for example, spent a good part of the past year digging into the Benghazi attack and I.R.S. tax-exempt status stories and talking hopefully about smoking guns, while the mainstream press was determined to take the Obama administration’s word for it that it did nothing wrong in either case.

More recently, when the president’s pronouncement about keeping your health insurance proved false, it was reported as a lie by the right and as a simple misstatement by the left.

And when the Obamacare website failed so miserably that not even the mainstream press could cover for it, the networks were obliged to sound like Fox for a while, although noticeably lacking was the appetite for pursuit that characterizes their coverage of Republicans.

Fairness in journalism requires not that every story or point of view receive equal weight but that every valid position receive equal respect. Thus the pro-life position should be treated with the same validity as pro-choice; small-government conservatives with the same respect as tax-and-spend liberals; Republicans as more compassionate than they sound and Democrats as less omniscient than they think.

But since journalists and news organizations are partisan at heart, one must sift through the best reporting and punditry from each side of the journalistic divide and take all the biases and agendas into account to arrive at an informed understanding of any story.

MARK R. GODBURN
North Canaan, Conn., Dec. 2, 2013

The writer is an antiquarian bookseller.

Here’s my comment:

In his lament about bias in the news media, Mr. Godburn assumes that unbiased journalism is possible and desirable. History suggests otherwise.

In the 18th and early 19th centuries, American journalism was highly political, often polemical and openly biased. That was the kind of journalism in which the likes of Sam Adams and Thomas Paine gloriously argued for liberty, and it was the form of journalism that was on the founders’ minds when they enshrined the doctrine of a free press in the First Amendment.

Only later, beginning with Benjamin Day’s Sun newspaper in 1833, did American journalists begin to develop a strong tradition of factual reporting. In part, this was the result of Day’s ambition to sell his paper to every reader (“It Shines for All”) and not limit his audience to members of any one political party.

In the 20th century, the major broadcast network news divisions, first in radio and then in television, reinforced this idea. They not only wanted the highest possible ratings, but were also operating as publicly traded corporations and were regulated by the Federal Communications Commission.

Nowadays, from within the turbulence of the digital age, we can begin to see that the years when big media companies were purveying what they described as nonpartisan, factual reporting were actually a historical period that is already fading into the past. The Internet has reinvigorated the “advocacy tradition” in journalism, and it has also made possible new forms of reporting such as crowd-sourcing, reporting that enlists the audience and the like. The spirit of innovation lives.

CHRISTOPHER B. DALY
Boston, Dec. 4, 2013

The writer is a professor of journalism at Boston University and the author of “Covering America: A Narrative History of a Nation’s Journalism.”

Here’s the email I got from blogger Steve Claflin:

Professor Daly:

Thank you for “Partisanship in the Media” in the December 8 New York Times letters.

The revived “advocacy tradition” problem you mention might be easier to manage if we had a form of majority rule that allows the general public to have more influence.

In the old days, the House was able to vote on any bill and the majority would prevail. Until an important bill recently passed by a wide margin, a Tea Party minority could usually intimidate other members, especially the Speaker, and prevent legislation that would easily pass from even getting to the floor. The minority party in the Senate can routinely block action on bills, because minority rule is built into Senate procedures. 60 votes are needed, with the help of a fickle minority, to pass legislation.

Is there anything more vital to democracy than majority rule? Is this what distinguishes democracy from autocracy? Is this what a democracy needs in order to succeed? We have the elections we normally associate with a democratic process. We reassure ourselves by going through the motions.

But the active ideological minorities in Congress, and the members who are owned and operated by special interests that donate large sums of money, are repeatedly able to slow or block or derail changes those few oppose and the rest of us generally favor. As such repeated occurrences so rudely remind us, we can have the structure, the trappings, the proceedings, the appearance of democracy without having majority rule.

Here are the other comments published in the Times:

Readers React

In an ideal world, graced by Enlightenment ideals, Mr. Godburn’s recommendation that citizens sift through biases of diverse news media outlets to form a complete perspective would be warmly endorsed. However, in this far-from-ideal world, individuals live in media echo chambers, selecting out viewpoints that agree with their own and sometimes avoiding conflicting ones.

Research finds that conservatives gravitate to Fox News and liberals to MSNBC — as well as to like-minded websites. A Pew Research Center study reported that from August to October of 2012, just 6 percent of Fox News’s election stories about President Obama were positive, while only 3 percent of MSNBC stories about the Republican presidential candidate Mitt Romney were positive.

Exposure to biased media strengthens partisan biases, exacerbating political polarization rather than producing the more informed understanding that Mr. Godburn desires.

RICHARD M. PERLOFF
Cleveland, Dec. 4, 2013

The writer is a professor of communication at Cleveland State University.

I read The New York Times every morning. I also watch more MSNBC than I like to admit. Occasionally, for entertainment, I’ll wander to Fox for a Bill O’Reilly moment or two.

Mr. Godburn’s thesis is an example of false equivalence. The Times is real journalism. But even The Times sometimes stretches too far in the service of “journalistic objectivity.” When one perspective is true and the other is propaganda, they should not be presented as equally valid.

As to MSNBC and Fox: The MSNBC host Rachel Maddow, for example, is surely dramatic. But I have never encountered an instance in which she was fundamentally dishonest. On the other hand, Fox is frequently and outrageously untethered from the truth, and its talking heads are attack dogs. Anyone consuming equal doses of this “news” will have intellectual indigestion.

If you bend over too far in the effort to be balanced, you’ll fall flat on your face.

STEVE NELSON
New York, Dec. 4, 2013

Well said, Mr. Godburn. Political correctness and a pervasive left-wing media bias are corrosive and do immense harm to the democratic process. People eventually find out that they have been misled. This breeds cynicism and mistrust. The left and the right learn to develop their own separate versions of the “truth.”

But while most right-wing news sources acknowledge their bias, those on the left deny their bias. Left-wing news sources are suffering a fallout in ratings because people are waking up to these facts and don’t like being manipulated.

FRANK COOK
Wayne, Pa., Dec. 5, 2013

Mr. Godburn makes a telling point, but he doesn’t go nearly far enough. His assertion that liberal and conservative news outlets “roughly fill each other’s omissions” assumes that there are exactly two reasonable points of view toward any given social issue; that these viewpoints are locked in a zero-sum game whereby each one can be validated only to the degree that the opposing one is impeached; and that they happen to correspond to the platforms of our two leading political parties.

Both parties are only too eager to promote this theory themselves, since it implies that together they have a monopoly on the truth. So a responsibility of both a free press and its readers is to examine both contrary viewpoints critically and consider other viewpoints — a third, fourth or fifth perspective — that have not been embraced by either side.

THOMAS LEITCH
Newark, Del., Dec. 4, 2013

Balanced news media is essential in any democracy. But let’s remember what brought us to the present situation — the 1987 repeal of the Fairness Doctrine, which required the airing of contrasting views on public issues, and the loosening of regulations on media concentration, allowing many media outlets to fall under the control of a few corporate-owned conglomerates.

Both have created a situation in which media is not only biased and unbalanced, but overwhelmingly influenced by the opinions and wishes of its corporate masters.

DOMINIC QUINTANA
Astoria, Queens, Dec. 4, 2013

Having recently returned from a trip to Brussels, I found the evening news there to be refreshing and professional. One subject wasn’t beaten to death 24/7 as it is here. You didn’t have to flip from channel to channel to see the “whole” picture, and the news was international in nature. In the United States you rarely hear about what is going on in Africa, Australia and, actually, most of the world.

It is a shame.

BONNIE CHALEK
Ridgewood, N.J., Dec. 4, 2013

I agree with Mr. Godburn that we need different perspectives. I would like to point out that Fox News is the No. 1 news source in America. Surely, that should qualify Fox as “mainstream.”

Studies have also shown that, for many Americans, Fox News is their only source of news. Those viewers are getting a slanted perspective — not balance. Defenders of Fox News often portray it as an underdog struggling to have a voice in the crowd of “mainstream” outlets, but that depiction simply isn’t consistent with its ratings.

I commend Mr. Godburn for admitting that news outlets he identifies as left-leaning did report on the problems with Obamacare. I find that so-called left-leaning news outlets, including The New York Times, are frequently critical of Democrats and their policies.

Mr. Godburn would have a much more difficult time finding comparable examples of Fox News criticizing the G.O.P. — except perhaps when it criticizes moderate Republicans for not being in lock step with the rest of their party.

TOBY PLEWAK
Easton, Mass., Dec. 4, 2013

It may be a fool’s errand to think that we can overcome media bias. The media is ultimately a collection of voices of various people, who generally stick to certain biases and opinions. The answer instead may be to encourage media outlets to be more forthcoming about their biases.

If we, as media consumers, know that a mainstream news outlet typically holds a certain viewpoint, then we can take in the news with a better understanding of what information may be missing or may be shaded one way or another. As it is, given the rather obvious political positions held by certain newspapers and television news divisions, many of us have already begun interpreting the news in this way.

MATTHEW K. KERFOOT
New York, Dec. 4, 2013

Here is Godburn’s last word:

The Writer Responds

Professor Perloff reinforces my point by noting that conservatives gravitate to right-leaning news sources and liberals to left-leaning ones, often without being exposed to contrary views or inconvenient facts.

But then he says that going to such biased sources only exacerbates the problem, as if he thinks there are reliably unbiased sources that one can go to instead. There are not, and that is why it is necessary to mine a variety of biased ones.

Mr. Nelson engages in the cheap liberal tactic of Fox-bashing. If Fox’s talking heads are attack dogs, they are poodles compared with the pit bulls he favors at MSNBC. Simply calling one’s favored sources true journalism and the other side propaganda doesn’t make it so. And if too much news causes intellectual indigestion, too little causes intellectual blinders.

Mr. Leitch is correct that there are more than two points of view. And examining all of them will not necessarily allow one to arrive at some desired middle ground. Just because you have one foot in hot water and the other in cold doesn’t mean you’re comfortable.

Professor Daly’s claim that I assume unbiased journalism is possible and desirable may have been a good lead-in for his journalistic history lesson, but that’s not what I said. The problem is not that journalists are biased — it’s that they claim they aren’t.

MARK R. GODBURN
North Canaan, Conn., Dec. 5, 2013

And, of course, since this is my blog, here’s my final, final word:

I will grant that maybe I misread his original post. When he wrote that all journalists and news organizations are partisan at heart, I thought he considered that a flaw. Perhaps inevitable, perhaps correctable (by reading multiple sources from different perspectives) but still a problem. If he says he doesn’t think so, then who am I to argue? I would say that many people (including a lot of journalists) do consider partisanship some kind of original sin of journalism.

Comments?

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NY court issues a major ruling for press freedom

By Christopher B. Daly 

Invoking journalism history, New York state’s highest court has ruled that under New York’s state constitution and the state’s version of a “shield law,” a journalist cannot be forced to divulge the identity of a confidential source — even if another U.S. state is trying to extract the information. The ruling, issued Tuesday, was a major victory for press freedom, and not just in New York. But it will have its greatest impact in New York, where so much of the news media operate, because now the highest court in that state has ruled that New York’s own laws grant complete immunity to journalists from any attempts to force them to reveal their sources. Since that court is the ultimate interpreter of the New York state constitution, it is a landmark.

It remains to be seen if a New York journalist can use this new ruling as a shield against federal prosecutors. Federal courts are not obligated to follow the New York state court ruling, of course, but any person who gains more rights under a state constitution or law does not forfeit those rights just because federal law has not caught up. The U.S. Constitution and federal laws establish legal minimums that must be afforded to all Americans, but they do not establish maximums. When it comes to our rights, federal law is a floor, not a ceiling.

Briefly, the case involves Jana Winter, a reporter for FoxNews.com. She went to Colorado in 2012 to report on the horrific mass shooting at a movie theater in Aurora. Expecting a media frenzy, the local Colorado court imposed a “gag order” — that is, a pre-trial order that tries to limit disclosures to the news media in advance of a trial. During the investigation into the crime, police got hold of a notebook that belonged to the suspect, James Holmes, which he had shared with his psychiatrist. Someone divulged the existence of the notebook to the reporter, along with a summary or description of its contents. Colorado authorities consider that a breach of the gag order, and they are stamping their feet to see who disobeyed. All the cops in Colorado say “it wasn’t me,” so the authorities are turning to the journalist and demanding that she rat out her source so they can punish that person. For that, they want to make her travel 2,000 miles to violate a promise she made to her source(s). If she stands firm and refuses to name names, she goes to jail. If she gives them up, she is ruined as a reporter, and the whole enterprise of news-gathering is undermined because all sources will doubt all reporters when they promise confidentiality. [Winter has absolutely no information that is exclusive to her and based on confidential sources that has any bearing on the commission of the crime itself. All she knows about is which Colorado cop (or cops) violated the gag order. Please.]

Many, many courts would rule against the journalist in these circumstances. Judges normally sympathize with their fellow judges and see things their way. Judges normally do not like to see anyone violate their rulings and get away with it. Judges like the idea that what they say, goes. All of which makes this ruling even more remarkable. It was a win-win: the court expanded legal protections for reporters, and it relied in part on a famous case involving an 18th-century partisan journalist to do so.

Here are versions by the New York Times (which should have put this on page 1, not inside the business section) The New Yorker, TVNewser, and Poynter. (Even Fox News had to come down on the side of press freedom in this case.)

Here is the text of the decision, written by Judge Victoria Graffeo. Among the stories I saw, only Poynter actually linked to the decision, which is disappointing — hey, people, there’s this thing called the Internet; let’s take advantage of it. Besides, the decision is well worth reading in full. It is a pro-freedom primer on the history of the freedom to gather news. Here are some key excerpts:

New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who . . . was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v Shanley, 62 NY2d 241, 255 [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger — an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word, leading the burgeoning publishing industry to establish a home in our state during the early years of our nation’s history.

That is an important point: New York did indeed become the nation’s media capital. I doubt that the New York State Constitution was much of a causal factor (compared to all the economic ones), but the fact that the industry is now centered in New York City means that many, many journalists enjoy the favored status granted by this new ruling. And the ruling holds that a New York-based journalist is protected by New York’s constitution even when he or she roams into another state or online to do reporting. What remains to be seen is what might happen when a New York-based journalist attempts to use the new ruling in the Winter case against a federal prosecutor who comes around with a subpoena seeking to force a journalist to name a confidential source in a federal investigation or trial.

Judge Graffeo wrote that the protections offered to journalists in New York are ancient, robust, and multiply determined.

To begin with, she wrote, there is the matter of common law. Before New York was even a state, the jury in the 1735 image-crown-zenger-tryal-pageseditious libel case against the printer John Peter Zenger  established through its not-guilty verdict that Zenger did not have to reveal the identity of the author of the offending article. The Zenger case is usually cited as a precedent for the idea that truth is a valid defense in libel cases, but if Judge Graffeo finds the germ of a “shield law” in there, so be it. (For more on Zenger, see “Covering America,” chap 1)

 

Later, New York citizens wrote and ratified a state constitution. It says, in part:

“Every citizen may freely speak, write and
publish his or her sentiments on all subjects
. . . and no law shall be passed to restrain
or abridge the liberty of speech or of the
press” (NY Const, art I, § 8).

In her reading, that language from 1831 constitutes a shield for journalists all by itself, saying it is more expansive than even the First Amendment to the U.S. Constitution and thus affords more protections to New Yorkers than other Americans enjoy under the First Amendment alone.

In addition, Graffeo cites New York state law. In 1970, the New York Legislature adopted a “shield law” that includes an absolute legal privilege for journalists who want to protect the identity of their confidential sources. She said that after considering the views of the likes of Walter Cronkite and Mike Wallace, the Legislature decided to throw its weight into the balance on the side of reporters. The relevant part of that law says:

no professional journalist or newscaster . . .
shall be adjudged in contempt by any court in
connection with any civil or criminal
proceeding . . . for refusing or failing to
disclose any news obtained or received in
confidence or the identity of the source of
any such news coming into such person’s
possession in the course of gathering or
obtaining news for publication

So, Judge Graffeo concludes, journalists in New York are protected by common law, constitutional law, and statutory law. Now, how hard was that? Why do so many judges fail to understand this reasoning? The ruling holds that all these sources of protection for journalists combine to provide evidence of a clear “public policy” in New York state to encourage the practice of journalism within its borders.

But Judge Graffeo was not finished. She noted that the testimony of the journalists that the New York legislators relied upon arose from another case — that of NYTimes reporter Earl Caldwell. In a footnote, she observed

The affidavits were prepared in connection with a motion
to quash a subpoena in a case that was pending when the Shield
Law was under consideration by the Legislature and which involved
an investigative reporter from the New York Times who was
subpoenaed by a Federal Grand Jury in California to testify
concerning knowledge he obtained about the Black Panther
organization. Two lower courts held that the First Amendment
protected the reporter from being compelled to reveal his sources
or disclose information provided to him in confidence, differing
only on whether the reporter could avoid appearing at the Grand
Jury altogether (Caldwell v United States, 434 F2d 1081 [9th Cir
1970] [reporter could not be compelled to appear at Grand Jury],
vacating 311 F Supp 358 [ND Cal 1970][although required to appear

Caldwell, left, with MLK in Memphis, 1968.

Caldwell, left, with MLK in Memphis, 1968.

at Grand Jury, reporter was entitled to protective order
precluding questioning concerning confidential sources or

information]). However, deciding the case with Branzburg v Hayes
(408 US 665 [1972]), the United States Supreme Court disagreed,
holding that the reporter could not rely on the First Amendment
to avoid appearing and giving evidence in response to a Grand
Jury subpoena.

That was a regrettable decision that journalists lost by an eyelash, only because five judges on the U.S. Supreme Court did not understand the U.S. Constitution as well as these New York judges understand the New York constitution. For more on Caldwell, see Covering America, chap 12. For more on the Supreme Court’s ruling, see earlier blog posts here and here.)

 

The new ruling also sends a message to prosecutors in all the other states: don’t bother going on fishing expeditions. If you send us requests to compel a New York journalist to appear in your state’s courts, those will be denied. The opinion says New York will not tolerate harassment of journalists by subpoenaing them to show up halfway across the country just to assert their immunity under the New York shield law. That would be terribly disruptive to their work. Just leave them alone, the court said. Quoting an earlier case, the ruling states:

“Journalists should be spending their time in newsrooms, not in courtrooms as participants in the litigation process”

It’s thrilling to read a judicial opinion written by a judge who actually understands the meaning of a free press and appreciates its value to society. It’s rare — and therefore, I suppose, all the more thrilling.

0      0       0       0       0       0

 

Finally, a hat-tip to the judge, Victoria Graffeo, the former solicitor general for the state of New York who was appointed to the Court of Appeals by Republican Gov. George Pataki to a 14-year term in 2000. No liberal, Graffeo was expected to be a moderate conservative voice on that important bench. Labels aside, she gets credit for getting the point.

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Keller v. Greenwald debate: Reporting v. Advocacy

By Christopher B. Daly

Bill Keller, former executive editor of The New York Times and keeper of the flame of traditional reporting, has squared off with Glenn Greenwald, the journalist who disclosed the Snowden leaks and an avatar of advocacy, in a debate over the meaning and future of journalism. Their debate is well worth reading and contemplating. 

Here’s my take: they are actually talking past each other. Each participant represents a different definition of journalism and cannot fathom the other’s values. As I argue in my book, Covering America, they come from competing visions of the essence of journalism, each of which has a long record.

Keller stands squarely for the tradition of responsible, dispassionate, nonpartisan, factual reporting. This was articulated forcefully by Adolph Ochs, the great-grandfather of the current Times publisher, when he bought the Times in 1896. Keller seems to believe that this tradition is the only legitimate one and that all others represent a deformation or corruption of “real” journalism.

Greenwald stands squarely for the tradition of journalism that prizes journalism for its ability to change the world. This is the polemical, analytical, interpretive form of journalism that considers advocacy the essence of journalism. Practitioners like Greenwald often look down on the reporting tradition as a weak, hypocritical, trouble-avoiding compromise.

It may come as a surprise that the advocacy tradition is actually older (much older) than the reporting tradition. In America, the first newspaper launched in 1704, and for more than a century after that, most journalism in America was a fact-free zone of argument and advocacy carried out by the likes of Sam Adams and Tom Paine.

The first full-time reporter in America (the obscure figure George Wisner of the New York Sun– pgs 61-62 in Covering America) wasn’t hired until 1833, and it took decades to establish the idea that the proper contents of a newspaper were value-free “facts” gathered by non-partisan professionals.

Personally, I don’t think one tradition is inherently more virtuous or more valuable than the other. I admire the best in both worlds.

 

 

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Should the Internet be regulated?

By Christopher B. Daly 

And, if so, for whose benefit?

Those were some of the issues swirling in the U.S. Circuit Court of Appeals in Washington as lawyers argued over a case that could have far-reaching impacts on the future of Internet access and the Web.

On one side is the FCC, which is asserting that it has the power to regulate the Internet just as it regulates over forms of electronic communication like radio, TV, and telephone.

On the other side is Verizon, a major internet service provider (ISP), which says the FCC has never been granted that power by Congress and cannot just assert it because it wants to.

A major point of conflict: can ISPs be forced to treat all their customers the same when it comes to upload/download speeds, pricing, and the like? Or, are they free to devise their own pricing structures that penalize heavy users of bandwidth?

If the ISPs have that right, how would they use that power? Would they impose high rates on start-ups like Zipcar and end up thwarting innovation?

Here’s today’s version in the Times.

The takeaway:

Consumers could experience a significant change in the Internet if the United States Court of Appeals for the District of Columbia Circuit strikes down the F.C.C.’s requirement, called the Open Internet Order.

Currently, companies that offer goods or services online do not have to pay anything to get their content to consumers. If Internet service providers started charging fees to reach customers more quickly, large, wealthy companies like Google and Facebook would have an edge, the F.C.C. says. The government argued that such a tiered service could cause small, start-up companies with little money to pay for their access — the next Google orFacebook, perhaps — to wither on the vine.

In any case, the added costs would be likely to be passed on to consumers.

The case, which is expected to be decided late this year or early next year, has attracted enormous interest. On Monday, telecommunications lawyers began lining up to get into the courtroom two and a half hours before the session was scheduled to start. The session was standing room only, with many others left to listen in an adjacent overflow room.

To be continued. . .

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DO JOURNALISTS HAVE A RIGHT TO PROTECT THEIR SOURCES? A federal appeals court rules – wrongly – that they do not.

By Christopher B. Daly

A federal appeals court recently dealt a blow to press freedom by ruling that there is no legal basis for an American reporter to protect the identity of a confidential source if a prosecutor demands to know it. This is not the last word on the subject, but still, it was a setback because the ruling last Friday came from the 4th U.S. Circuit of Appeals, the level just below the Supreme Court. (Not only that, but the 4th Circuit has jurisdiction over Virginia and Maryland, which covers a lot of federal agencies, including the Pentagon and the CIA.)

The case is important because it is part of a recent upsurge in federal cases attempting to stop “leaks” of classified information by intimidating journalists. The case is also important because it strengthens the hand of the Justice Department and federal prosecutors (at least in the 4th Circuit) to chill whistle-blowers, pressure journalists to give up their sources, and jail those reporters who won’t do so.

The July 19 ruling runs to 118 pages. Below is my analysis of all the major points made in both the majority ruling and the dissent. Overall, I find that the majority ruling was arbitrary, biased, and flat-out wrong. I believe that the dissent has it right.

I am approaching this ruling not as a lawyer, judge, prosecutor, or law professor. My main credential is one that I share with all the parties (including the judges) in this case: CITIZEN. I believe I have a right to read the Constitution and the statutes and the evidence, draw my own conclusions, and share them with you. I approach this as an advocate for press freedom. To be specific, I am an advocate of the public’s right to know what our government is doing. To that end, press freedom is instrumental, but it is also incidental. The real purpose of the First Amendment is to ensure that we, the people, would always have the means to gather and share the information we need to govern ourselves and prevent the resurgence of tyranny.

[Some brief background: The case is U.S. v. Sterling. It is a criminal case against Jeffrey A. Sterling, a former CIA officer who has a major beef with the agency. Sterling, who is black, has charged the CIA with racial discrimination, and he has a conflict with the agency over material he would like to publish in his memoir. The CIA claims that he divulged classified information to a journalist in violation of the Espionage Act of 1917, as amended. Sterling maintains that he is a target of CIA retaliation because he divulged a botched operation. The journalist in question is James Risen, a Pulitzer Prize-winning expert on national security and veteran reporter for the New York Times. He is also an author of several books, including the one at issue, State of War (2006, Free Press). In the book, Risen revealed details about a CIA operation aimed at undermining Iran’s nuclear program. Federal prosecutors issued a subpoena ordering Risen to appear before a grand jury and reveal his source. Risen has refused and vows to go to jail instead. The underlying case, U.S. v. Sterling, has yet to come to trial. The 4th Circuit ruling had to do with pre-trial motions in the Sterling case. The constitutional issue is whether, under the First Amendment or some other basis, reporters in America have the right to protect the identity of their sources, even when they are ordered to do so in a criminal case. In other words, do they enjoy a legal "privilege" that frees them from having to give testimony? Do they have a "testimonial privilege"? If so, is it absolute?]

 

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The Circuit Court opinion begins with the majority ruling (in a 2-1 split), written by Chief Judge William Byrd Traxler, Jr. The majority opinion opens with some factual background, covered above.

p. 5

Traxler notes that Sterling was indicted on a charge of illegally disclosing classified information and observes that

 he may have done so in retaliation for the CIA’s decision to terminate his employment and to interfere with his efforts to publish such classified information in his personal memoirs.

So, as to MOTIVE, Sterling is not accused of “aiding the enemy” – unlike, say, leaker Bradley Manning.

p. 6: In 2000, Sterling filed a federal lawsuit against the CIA charging employment discrimination – a classic “disgruntled employee” if there ever was one. These folks are the natural target for reporters.

p. 7: In Oct. 2001, the CIA sacked Sterling.

He was reminded of his legal duty to protect secrets and asked to sign an acknowledgement. He refused.

p. 8: March 4, 2003. Sterling filed a second suit against the CIA, protesting the way they wanted to censor his memoir.

March 5, 2003. Sterling goes to the Senate Intelligence committee and divulges information to staffers about the Iranian intel program.

“Telephone records indicate that Sterling called Risen seven times between February 27 and March 29, 2003.”

Hmmm… wonder how the government got those phone records. Still, no crime there.

One thing that’s clear: Sterling and the agency are developing a world-class hatred for each other.

p. 9: 

“On April 3, 2003, Risen informed the CIA and the National Security Council that he had classified information concerning Classified Program No. 1 and that he intended to publish a story about it in The New York Times. In response, senior administration officials, including National Security Advisor Condoleezza Rice and Director of the CIA George Tenet, met with Risen and Jill Abramson, then Washington Bureau Chief of The New York Times, to discuss the damage that publication would cause to national security interests and the danger to the personal safety of the CIA asset involved in the operation. Several days later, Ms. Abramson advised the administration that the newspaper would not publish the story.”

Worth noting: The government made a reasoned request to protect a current “asset” – which is to say, an active spy. The newspaper agreed. Fat lot of good it did them. You do the govt a big favor and they turn around and screw you.

p. 10: Jan 2006, Risen publishes State of War, in which he used the stuff that the Times would not publish. [Presumably, that “asset” was long gone by then.]

“Risen does not reveal his sources for the classified information in Chapter 9, nor has he indicated whether he had more than one source. However, much of the chapter is told from the point of view of a CIA case officer responsible for handling Human Asset No. 1. The chapter also describes two classified meetings at which Sterling was the only common attendee.”

Dec. 22, 2010, Sterling indicted. Subpoenas issued for Risen to testify before grand juries and identify his source.  He moves to quash the subpoena (i.e., make it go away and end his legal problem).

 

p. 12:

“The district court held that Risen had “a qualified First Amendment reporter’s privilege that may be invoked when a subpoena either seeks information about confidential sources or is issued to harass or intimidate the journalist,” id. at 951 (emphasis added), and that the government could overcome the privilege only by meeting the three-part test that this circuit established for reporters’ claims of privilege in civil cases in LaRouche v. National Broadcasting Co., 780 F.2d 1134 (4th Cir. 1986).”

 

So, in the first round, Risen actually won. The district court judge agreed that the First Amendment protects journalists in most situations. (Hence, the “qualified” privilege. See below.)

p. 13. Oh, and by the way, the government would like to protect the identity of its secret witnesses while forcing Risen to name his. That’s rich, but, of course, they are going to get their way.

p. 15-16: Traxler announces the new bottom line:

 There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”  [emphasis added/ CBD]

As his main precedent, Traxler cites the 1972 Branzburg case, decided 5-4 by the U.S. Supreme Court. On a close call more than 40 years ago, SCOTUS said it could not find a legal “privilege” for a journalist in the First Amendment. In plain English, that means that the news-gathering function of journalism does not extend to protecting sources – at least not when doing so conflicts with the duty of prosecutors in criminal cases to bring “every man’s evidence” into court. The journalists had hoped to establish that – like doctors, psychotherapists, spouses, clergy, and lawyers themselves – members of the public have an interest in knowing that they can confide in any of those people without having their confidences betrayed in open court. I believe that the Branzburg ruling was wrong, if narrowly so, and it has been under attack ever since.

Getting back to the quoted section above, here’s a question: What about a confidential source who does not commit a crime? In that case, the journalist is neither a participant nor a witness to a crime. It’s actually far more common for confidential sources to tell journalists about third parties, which Traxler does not address here. What if the confidential source does not hand over any purloined documents or commit any crime in the journalist’s presence? What if the source merely describes the misdeeds of others?

Moreover, what about a Wikileaks style work-around where the journalist has to protect his/her own identity?

What about anonymous posting (like 18th Century pamphleteers?)

Another alternative: Journalists could decide to live with the Branzburg rules and encourage journalists to go to jail and honor those who do so. We could create a Hall of Fame, or we create a special prize and give them each $1 million for their service to the profession and the general public.

[NB: Traxler also relies heavily on the 2005 Judith Miller case. In that instance, her source – Scooter Libby – was committing a crime in the reporter’s presence (whether Miller realized it or not) by outing Valerie Plame, then an active CIA agent. But what if he were not actually committing a crime?]

If there is no legal/constitutional remedy, maybe there is a technological or behavioral remedy. Journalists could change their technology or their techniques. Maybe they need to improve their tradecraft – safer transfers of documents and data, untraceable meetings, disguises, meetings in other countries, go-betweens, etc., etc.

If they insist on criminalizing journalism, then must journalists learn to act like criminals? The mob always esteemed “stand-up guys” who would take their punishment rather than rat out their associates. Is that the model Traxler is pushing us toward?

Why doesn’t the government do a better job of protecting its own whistleblowers? Why do they have to resort to telling journalists?

p. 25:

“The Branzburg Court considered the arguments we consider today, balanced the respective interests of the press and the public in newsgathering and in prosecuting crimes, and held that, so long as the subpoena is issued in good faith and is based on a legitimate need of law enforcement, the government need not make any special showing to obtain evidence of criminal conduct from a reporter in a criminal proceeding. The reporter must appear and give testimony just as every other citizen must.”

Do I detect a certain amount of glee in these opinions when judges have the chance to uphold the power of prosecutors (and, of course, judges) to compel reporters to do things?

p. 26: Here, Traxler does something of an about-face and says it would be fine to give an alternate reading to Branzburg in civil cases. Traxler would grant a qualified reporter’s privilege in civil cases. It’s just the criminal cases where the law enforcement is transcendent over the public’s right to know. Since when does law enforcement trump all other values, goals, priorities?

[Note that the privilege is always qualified; judges always want to be able to put their thumb on the scale of justice. They say: We are not going to give you something once and for all; any time you want to exercise that right, you have to come into court and beg a judge for it. Thanks a lot!]

p. 27: Traxler calls for a “balancing approach” – which translates into arbitrary judicial discretion as far as I can see. When a reporter is about to talk to a source, is he/she really supposed to project ahead and guess correctly about how that “balancing” is going to turn out in his/her case? Fat chance. That is completely unrealistic.

p. 28: Traxler keeps clinging to this obscure clause in Branzburg that offered remedies at law for journalists who are faced with prosecutions intended to “harass” the reporter or carried out “in bad faith.” What is that about? How often does a court decide that a prosecutor has acted in bad faith? That’s a non-issue, a red herring.

p. 29-30: More on the criminal/civil distinction. But: the fact is, some crimes are petty and some civil actions are momentous. I don’t believe it is true that every criminal matter is by definition more important than any civil matter. That strikes me as dogma (or a device for getting to some desired outcome). Some criminal cases, even felonies, involve small potatoes like selling a couple of ounces of marijuana.

[Let’s all keep in mind The BIG PICTURE in the Sterling case: the CIA pissed off one of its agents, and he went rogue, and they want to crush him. Risen is caught between the two antagonists.]

p. 32: Risen also raised a claim to a “common-law reporter’s privilege.” By “common law” he means law that is made by some fashion other than the Constitution and the acts passed by Congress. Usually, this means judge-made law that results from rulings made over time that produce trends. Traxler begins by citing Branzburg saying no common-law privilege existed. But that was as of 1972. Has the common law evolved since then? (which is the nature of common law, no?)

p. 36: Traxler analyzes the common-law argument, based on Rule 501 in the federal rules of evidence, which was passed by Congress, after Branzburg. In comparing a reporter/source case to a psychotherapist/patient case, Traxler writes:

“Applying Rule 501, the Court weighed the competing interests and concluded that the plaintiff’s interest in obtaining evidence of the confidential communications in the ensuing excessive-force action was outweighed by the patient’s private interest in maintaining confidence and trust with his mental health provider and the public’s interest in protecting that privacy in order to “facilitat[e] the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. As noted above, the Court also relied, in part, upon the fact that a psychotherapist-patient privilege was one of the nine, enumerated privileges considered when Rule 501 was adopted and had found near unanimous support in state laws as well.”

But Traxler misses the point here. The point is that in both kinds of cases, it is the PUBLIC interest that creates the privilege, not the personal or professional one. The public wants to know that psychotherapy patients as a class have a right to seek help from therapists as a class with confidence that the statements they make in therapy will not end up in court with the names attached. The public also wants to know that when they read a newspaper, there is no information missing because sources in general are afraid to approach reporters in general.

The public wants people in general to feel confident in talking to a doctor, lawyer, or clergymember. Likewise, the public wants people in general to feel confident in talking to a reporter.

Also, note: Branzburg did not forbid a journalist’s privilege as some kind of an evil. It just said that court couldn’t quite find it in the First Amendment. Now, if you are determined not to find one anywhere, you won’t. But if you are looking for one, there are a number of places you might find it. Much depends on one’s predisposition, and there are a lot of judges who are not predisposed to trust reporters.

In Traxler’s case, for example, here’s a passage from p. 37:

“Rule 501 thus leaves the door open for courts to adopt new common-law privileges, and modify existing ones, in appropriate cases. But nothing in Rule 501 or its legislative history authorizes federal courts to ignore existing Supreme Court precedent.”

So, the door is open, but Traxler (and his colleague who joined this majority opinion) does not want to walk through it. To my mind, that does not seem to dispose of this issue once and for all. If lower courts don’t make rulings that allow common-law rulings to accrete, how will the common law ever evolve?

BTW, what if judges had to divulge what goes on in-camera? How would they feel about that? What if they could not guarantee the confidentiality of sidebars or in-camera discussions?

p. 40: Traxler has a message for journalists: Even if we thought we could grant a common law privilege, we wouldn’t [So go fuck yourself!]

“First, unlike in the case of the spousal, attorney-client, and psychotherapist-patient privileges that have been recognized, the reporter-source privilege does not share the same relational privacy interests or ultimate goal. The recognized privileges promote the public’s interest in full and frank communications between persons in special relationships by protecting the confidentiality of their private communications.”

Traxler completely (willfully?) misunderstands the issue.  The party with the claim here is not really Risen as an individual (and not even Sterling). The party whose rights are being evaluated here is THE PUBLIC. The public has a compelling right to know things. If reporters cannot find things out, then the public will not find things out either. It’s that simple.

Traxler’s analogy here is not sound either. He says Risen does not deserve protection because he did not try to hide the information he obtained confidentially but, on the contrary, shouted it from the rooftops by publishing it. Well, what is a journalist supposed to do? Seek the truth and not share it with anyone?

Traxler is writing like a Martian who has never read a newspaper.

Besides, psychotherapists often write up cases and publish their findings in the professional literature but withhold the identity of the patient. That’s a much more apt analogy.

Pgs. 40-41: Speaking of Risen, Traxler writes:

“His primary goal is to protect the identity of the person or persons who communicated with him because their communications violated federal, criminal laws.”

That’s not true, either, and he is imputing a motive to Risen that does not exist – or, at least, has not been proven. As a reporter, Risen had to make a decision about confidentiality in advance of knowing whether such communication violated any federal laws – and indeed, that is a matter of fact for a trial court, not something that Traxler should assume. (Again, the judge is showing his bias in this case; he clearly agrees with the government and has pre-judged the case against Sterling.) Traxler is pro-prosecutor and does not even recognize his own bias. I wonder how many other former prosecutors there are on the federal bench? And I wonder how many ex-journalists? (probably zero)

[Note to self: I am starting to warm up to the idea of a federal Shield Law, if only to take these determinations away from the Traxlers of this world – a conservative with a lifetime appointment can do a lot of damage. I have been reluctant to see journalists go hat in hand to Congress and ask for anything. My fear is that Congress will begin by giving journalists half a loaf -- a crummy shield law loaded up with compromises -- and later take it away altogether. That would not leave journalists where they are now; it would leave them worse off. Because Congress will have established the precedent of legislating about journalism, even though the First Amendment said it about as clearly as words can say anything: Congress shall make no law abridging the freedom of the press.]

TALK ABOUT COMMON LAW – WHAT ABOUT THE 49 STATES WITH SHIELD LAWS? DOESN’T THAT REGISTER?

If a reporter’s privilege is such a terrible idea and so likely to thwart the pursuit of criminal justice, why tolerate all these state laws? What about “every man’s evidence?” (a term that is not in the Constitution either; it is a legal doctrine, like the right to know)

p. 47: Here, Traxler puts all his cards on the table: Even if there were a qualified reporter’s privilege, we would still not extend it to Risen. He would not even meet the civil standard – the so-called “Larouche test.”

Under that standard, a reporter can be compelled to testify only if three conditions are met:

1. The info is relevant to the case at hand (duh!)

2. the info cannot be gotten by any other means (all prosecutors will affirm this)

3. There is a compelling interest in the info. (all prosecutors will affirm this, too)

In this case, Traxler (a former prosecutor) happens to side with . . . the prosecutors!

p. 50:

“Risen is the only eyewitness to the crime. He is inextricably involved in it. Without him, the alleged crime would not have occurred, since he was the recipient of illegally-disclosed, classified information.”

Note that Traxler refers to “the crime” in one sentence and then catches himself two sentences later and writes (properly) of “the alleged crime.” Worth remembering: Nothing has been proven. Sterling has not been found guilty by a jury of anything, and he enjoys the presumption of innocence.

Besides: maybe it wasn’t Sterling. Or maybe it wasn’t only Sterling. Traxler accepts the indictment as if all matters of fact have been proven.

p. 52:

“During these proceedings, Sterling has often represented that he intends to point his finger at these third parties as the source of the leak. The district court’s ruling, however, would require the government to compel the testimony of every other possible source, sources who could do little more than assert their own privilege or offer a simple denial of guilt, while allowing Risen, the only person who can identify the perpetrator or perpetrators, to protect his sources from the criminal consequences of their behavior.”

Huh?

Why should the journalist have less protection than those possible miscreants? Shouldn’t he have at least as much – given that the journalist is not an instigator of any criminal activity and that he is serving a compelling public interest?

This ruling is upside-down.

p. 57: Traxler takes up the argument that there is a compelling interest in Risen’s testimony. This is rich: one of the reasons he cites is the “obvious” claim that national security is important. He cites Haig v. Agee to state that “no governmental interest is more compelling” – in other words, national security is tops or at least tied for first, compared to every other governmental interest. But that’s just his opinion. It is not a natural fact or a fact that is even self-evident.

Then, he has the chutzpah to argue that the national security interest extends to the methods of gathering and keeping secrets, including “the appearance of confidentiality” – which is exactly what reporters need in order to carry out their constitutionally protected role.

p. 58: Traxler betrays a disturbing willingness to go on a fishing expedition to find out all Risen’s sources.

 

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On to the DISSENT

p. 86: Judge Roger Gregory (the first black judge on that circuit, nominated by Bill Clinton; he is also a former litigator – and therefore someone who is not automatically inclined to believe or support the government) wrote the DISSENT, for himself. He begins by celebrating press freedom and noting its central role in self-govt.

p. 90: Gregory indicates that he actually read the pro-media affidavits, whereas there is no literary evidence in Traxler’s opinion that he is conversant with that other point of view. It appears that Traxler read only the prosecutor’s briefs.

p. 91: Gregory singles out the affidavit from the Washington Post’s veteran national security investigative reporter Dana Priest — about Gitmo, Abu Gharib, secret prisons, Walter Reed.

QUESTION: Which of these revelations would any American want to put back in the bottle? They were all secret originally (maybe not Walter Reed), and they all had to be pried loose using confidential sources. Would we as a society be better off not knowing? Does Judge Traxler really prefer, himself, to learn only what the government wants him to know?

p. 98: Gregory’s bottom line:

 I, too, would recognize a qualified reporter’s privilege in the criminal context, and evaluate the privilege using the three-part test enunciated in LaRouche as an “aid” to help “balance the interests involved.” 780 F.2d at 1139. I would add a caveat to this general rule, however; in cases involving questions of national security, if the three-part LaRouche test is satisfied in favor of the reporter’s privilege, I would require consideration of two additional factors: the harm caused by the public dissemination of the information, and the newsworthiness of the information conveyed.

p. 108: Gregory implies that the CIA is not trying to cover up vital national security secrets but is simply trying to cover its ass after a botched operation.

“This information is not extraneous. Quite the opposite, it portends to inform the reader of a blundered American intelligence mission in Iran.”

Gregory says Risen’s disclosures are definitely newsworthy. The final test is to balance that newsworthiness against the harm of disclosure.

Which raises the question: where’s the harm?

Gregory:

“. . .the Government has not clearly articulated the nature, extent, and severity of the harm resulting from the leak.”

This is classic. The government failed to do this in the Pentagon Papers case, too and lost as result. In this case, it must be asked: WHERE’S THE HARM? The stuff in Risen’s book came out years ago already, and what part of the sky fell? What’s the body count? As usual, there’s nothing but some egg on some faces.

p. 112: In his big rhetorical wind-up, Gregory laments the majority ruling written by Traxler:

 I find it sad that the majority departs from Justice Powell’s Branzburg concurrence and our established precedent to announce for the first time that the First Amendment provides no protection for reporters. . .

Under the majority’s articulation of the reporter’s privilege. . . a reporter can always be compelled against her will to reveal her confidential sources in a criminal trial. The majority exalts the interests of the government while unduly trampling those of the press, and in doing so, severely impinges on the press and the free flow of information in our society. The First Amendment was designed to counteract the very result the majority reaches today.

Amen.

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So, that’s where things stand. By my reading, as a citizen, I would say that while this ruling was a setback, it was just another battle in a long war. Branzburg was a close call back in 1972, and, while I believe the court got it wrong, my guess is that the Branzburg ruling is not destined to stand much longer. The surge of state-level shield laws, the closeness of these cases in federal courts, and the rightness of the journalist’s privilege all give me reason to hope that neither James Risen nor any other journalist ever has to go to jail for their efforts to inform the American people about the doings of their own government. We, the people, created that government (including the judiciary), and we should be able to make it do what we want.

 “Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or abolish it.”

 

 

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Digital media win another Pulitzer

By Christopher B. Daly

logoScore another victory for serious journalism that was born on the Web. The born-digital environmental website “InsideClimate News” won a Pulitzer Prize this week for national reporting based on its stories about an oil pipeline spill in the Kalamazoo River.

That follows earlier Pulitzers awarded to The Huffington Post and Politico (2012) and ProPublica (2011).

According to a story in the Washington Post, InsideClimate News was founded in 2008 and has just seven staffers. Founder David Sassoon is listed on the website as a graduate of Harvard and the Columbia Journalism School. With no office, InsideClimate News has virtually no overhead and zero “legacy costs.” Instead, they appear to depend for support in large part from foundations — including, ironically, the Rockefeller Brothers Fund, which is based on the fortune that the family made by dominating the market for, of all things, oil.

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Brava, Arianna (HuffPo goes Italian!)

By Christopher B. Daly 

Three cheers for Arianna Huffington. Whatever you might think of the quality of her journalism (which is uneven, but increasingly original), you have to give her credit for making money, expanding, and hiring people.

Her latest move is to create an Italian-language version of HuffPo. This is her fifth, following rollouts in Canada, Britain, France and Spain. (What’s wrong with her native Greece?) Up next: Germany, Japan, South Korea, India, and Brazil.

From today’s Times story:

L’Huffington Post lined up four prominent introductory advertisers: the leather goods company Tod’s, the carmaker Citroën, the energy company Eni and the telecommunications provider Wind. Each of the partners has invested 1 million euros, or about $1.3 million.

The Italian site alone expects to generate 5 million euros, about $6.4 million, in annual advertising revenue by the third year, said Massimo Ghedini, chief executive of the Espresso Group’s advertising sales arm, A.Manzoni.

Is Rupert Murdoch hearing footsteps yet?

 

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“Wait, wait”: Would someone please impose an embargo on the news media

By Christopher B. Daly 

Kudos to the SCOTUSblog for this remarkable tick-tock on what went wrong in the initial reporting about the Supreme Court ruling on the Obama health care plan back on June 28. Tom Goldstein, the publisher of SCOTUSblog, has put together a 7,000-word reconstruction of the first half hour of reporting, focusing on the screw-ups  at CNN and Fox News. He has done us all a service with his meticulous, minute-by-minute (and sometimes second-by-second) narrative of that day’s hits, balks, run-downs, and errors.

What this post-game review suggests to me is that, first and foremost, the news business needs to do better. As a former wire service reporter (10 years with the AP, both on desks and in the field), I appreciate the need for speed. SCOTUS decisions move markets; they sometimes hand the White House to one party over the other. Often, they are the epitome of breaking news. That said, it is insane for reporters to cover Supreme Court opinions on the fly. No one benefits. In Goldstein’s tick-tock, the description of the gyrations of the front-line legal correspondents reminds me of nothing so much as an episode of “Iron Chef” — in which highly talented people are subjected to insanely artificial difficulties (“OK, now you have two minutes to make a three-course meal out of kale and strawberries. GO!”). There is absolutely no reason to turn this scheduled event into a speed-reading contest.

The Supreme Court also has some lessons to learn. It is insane that the Court does not post its opinions, in full, on the Web at 10:00:01. Why should the White House and Congress have to wait? Why should citizens have to wait? Why should prisoners facing execution or stock traders or anyone have to wait? In this day and age, to hand out paper decisions is an affront.

But most important of all, after reading Goldstein’s report, I am strengthened in my belief that the Court and the news business need to get together on a slow day and figure out a better system for these kind of hand-offs. The answer is staring them in the face: an old-fashioned news embargo. The Court could simply identify 10-20 of the top court reporters — all vetted, credentialed experts — and invite them to come to the building at 8 a.m. The journalists could all then be locked in a room (like jurors) with no wi-fi access. They could then take their time to read the opinion (in full), digest it, and craft a coherent and accurate story. At 10:00, those stories could all be released, all at once. That way, all the news organizations that care about speed would have a multi-way tie and the issue of who was “first” would be moot. That way, the first version would also be the right version. That way, the public gets a full, careful, accurate version at the earliest possible moment.

P.S.: The world would certainly be a better place if people would stop posting comments just to gloat. Goldstein mentions a couple of these kind of comments that SCOTUSblog received from readers rubbing it in that CNN and Fox were right and SCOTUSblog was wrong. In retrospect, they look like the doofuses they are.

Twitter postings / Topsy

Twitter postings / Topsy

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