In a society in which each individual has but limited time and resources with which to observe first-hand the operations of his government, he relies necessarily upon the press to bring him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.
These words, written by Justice Byron White in Cox Broadcasting Corp. v. Cohn,1 are as true today as they were nearly 40 years ago. Put more simply, information, specifically about our government’s activities, is the lifeblood of a self-governing democracy. There are myriad instances in which public records served as the basis for exposing serious and even life-threatening problems, malfeasance, corruption, and need for policy reforms.2
The tumultuous upheaval in the newspaper industry—brought on by the confluence of technological, financial, and social factors—has reduced newsroom staffs to a fraction of their former selves. This decline has spawned a growing community of “alternative” nonprofit, “independent” news organizations (e.g., Pro Publica, The Investigative News Network), which have produced excellent, groundbreaking “watchdog” journalism, and have deservedly garnered prestigious journalistic awards, public attention, and calls for policy reform.3 Nevertheless, the nonprofit journalistic community does not, and is not likely ever to, adequately replace the financial resources and attendant watchdog efforts of the for-profit “traditional news media” regime.4
A Call to Action
Those of us who make a living representing news organizations, both for-profit and not-for-profit, know firsthand that shrinking budgets in both sectors make “discretionary” legal spending a luxury that few are able to afford.5 In response to this economic reality, three trends have emerged. First, the for-profit news organizations increasingly form coalitions to fight for access to judicial proceedings and government information, pooling resources and sharing the financial costs of litigation. These coalitions have become fairly common in seeking access to court records and court proceedings in high-profile criminal cases, and in the 9/11 commissions taking place at Guantanamo Bay. Second, increasingly, and at a high cost for our democracy, many public records battles that previously would have prompted litigation—not only to secure access to the records at issue, but to establish favorable precedents to facilitate access to similar records in the future—go unchallenged. Not only does this leave a critical body of law malnourished; it undermines the pressure and urgency with which government institutions should address access and record requests. Third, financially constrained press actors must rely increasingly heavily on pro bono or contingency fee representation, particularly the newly-formed nonprofit journalism enterprises, in order to “fill the gap” left by the for-profit news media.