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Geanne Rosenberg: Protections for journalists shouldn’t just apply to the ones collecting paychecks

[Our friend Geanne Rosenberg is both a journalist and a lawyer, so she's well positioned to analyze the ongoing legal controversy surrounding student journalists at Northwestern. Geanne is founding chair of the Department of Journalism and the Writing Professions at CUNY's Baruch College in New York. —Ed.]

Northwestern University Journalism Professor David Protess is accomplishing what many journalism schools and departments are increasingly seeking to accomplish: educating students through the actual creation of high quality news information that’s in the public interest. That’s good for the students, good for the educational institution, and good for society.

But the state of Illinois is sabotaging Northwestern’s noble efforts and delivering a chilling message to journalism schools and programs around the country.

In a widely reported controversy, Illinois prosecutors responded to a Protess-led, university-based journalistic investigation of a 31-year-old murder conviction with subpoenas seeking “virtually every conceivable record” relating to the school’s newsgathering activities, including records of interviews, the professor’s communications with student journalists, receipts and records regarding expenses, class syllabi, grading criteria and student grades, according to a motion by Northwestern and its affiliates seeking a protective order quashing the subpoenas.

The subpoenas have led to questions about whether Illinois’ shield law extends to student journalists and, more broadly, raise questions about legal protections and risks for amateur and unaffiliated journalists and for journalism educators and educational institutions. These questions are becoming more important with the growing impact and value of student and amateur journalism.

“The state’s attorney’s zeal seems punitive,” says media lawyer Samuel Fifer, a partner at Sonnenschein Nath & Rosenthal LLP and an adjunct professor at Northwestern’s law school. He called the subpoenas “a ridiculous effort in light of the benefit to ordinary citizens” of the important information being reported through the school project.

Cook County State’s Attorney’s Office spokesperson Andrew Conklin, when asked about the concern that the subpoenas may have a chilling effect on college and university-based journalism and whether State’s Attorney Anita Alvarez is considering withdrawing the subpoenas in light of the criticism, declined to comment and referred to the state’s attorney’s response to the motion to quash the subpoenas.

Deciding who is a journalist

For Northwestern’s Medill School of Journalism Dean John Lavine, the battle over the subpoenas is “time consuming and it’s burdensome and it shouldn’t happen.” Still, he adds, “If this kind of challenge and these kinds of precedents are going to be raised, I think Medill is the place that ought to take them on. It’s part of what we teach. It’s part of what we live. But we do it first not for journalism. The reason is the criminal court system is fundamental in this society. We are all citizens. The importance of ensuring that all journalists can cover the courts so the public can really know what’s going on is just the backbone of the country.” Lavine characterized as “scary” the notion that prosecutors could seek to decide who is or isn’t a journalist and go after those who produce factual information uncovering a convict’s innocence because it could “frighten people off from bringing forward facts.”

In general, beyond Northwestern’s current situation, subpoenas directed at newsrooms and college or university-based journalism can damage journalistic efforts and enterprises. First, according to Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, they can “jeopardize your ability to be perceived as an independent gatherer of information when you turn [the results of reporting over] to a government agency” and that “may make sources less willing to come forward” resulting in less access for the public to truthful information. Second, according to Dalglish, dealing with subpoenas can be an enormous “financial and time drain.”

These risks and burdens can be heightened for those practicing journalism outside of professional news organizations who may not have the legal resources that professional newsrooms frequently employ. Yet, the public is increasingly relying upon these alternative news sources for information on matters of public concern.

The place of student journalists

To be sure, Northwestern students have been producing professional quality, published news information for decades. But, beyond Northwestern, nationally speaking, with the decline of mainstream media, the implosion of news media business models and the decimation of well-established, highly trained professional newsroom teams around the country, there’s an expanding vacuum in high-quality, independently reported-out news information. In tandem is an accompanying risk that government institutions and officials, whether at the local, state or federal level, will operate without adequate scrutiny, outside of the view of the public.

“You ignore college journalism or university-based journalism at our peril as far as I’m concerned,” says Dalglish.

As more journalism schools and programs more vigorously pursue and publish news information, as they grow stronger to help compensate for declines in the news industry, as undergraduate schools train not only those seeking to embark upon careers in the news media but also a much broader student population to be critical consumers of news information and capable contributors to the news content that’s out there, and as more and more of this student work morphs from class assignments that traditionally were quietly graded and seldom published to content available globally via the Internet, they will likely need some of the same kinds of legal training and resources that newsrooms have come to require.

They should consider basic training in legal parameters, lawyers either on staff or on call to answer questions and vet stories, effective correction and retraction policies and procedures, media liability insurance, mechanisms for transparency and accountability, and access to lawyers or legal teams that can help fend off subpoenas and defend against libel and other claims. At the same time, the schools can benefit from legal resources to help them gain access to government records and meetings.

But they’ll need more than that, as Northwestern’s subpoena situation highlights. They’ll need a legal system that provides protections that have become increasingly necessary to the practice of journalism.

For starters, they’ll need shield laws that clearly extend to those acting as journalists and performing journalistic functions, whether or not those practitioners of journalism are on news staffs or compensated for their reporting activities.

                                   
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Ken Doctor    Aug. 13, 2014
If newspapers are going to have to survive on their own, the first numbers aren’t encouraging. In southern California, we could see big movement fast.