September 2013 – Media Nation

Using news site comments to build community

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News site comments can be toxic. Yet, properly managed, they can be a tool for building media literacy, civic engagement and, ultimately, a news organization’s audience.

The following presentation incorporates some lessons I’ve learned over the years, many of them from researching my book about online community journalism, “The Wired City.”

I delivered a lecture based on this presentation earlier today in Professor Steve Burgard’s Journalism Ethics and Issues class at Northeastern.

Fall panorama

Looking east on Elliot Street in downtown Brattleboro, Vt., toward Wantastiquet Mountain late Saturday afternoon. Shot with an iPhone 4 — fuzziness caused by digital zoom.

Celebrating 25 years of Cambridge Community TV

Old friend Robin Young of WBUR and NPR’s “Here & Now” and I were named honorary board members of Cambridge Community Television on Wednesday evening. The occasion was CCTV’s annual barbecue, held in the back lot at the Central Square facility. There’s more here (pdf).

The highlight of the evening came when Susan Fleischmann was honored for her 25 years at the helm of CCTV, which itself was celebrating its 25th anniversary. Local access cable operations are a key part of the independent media ecosystem.

I don’t live in Cambridge, so I don’t get to see CCTV. But it strikes me as an unusually rich and sophisticated operation, with three channels, lots of local programming and training sessions for youth and adults.

Many thanks to the folks at CCTV for their hospitality and their good work.

Photo by Wilder Bunke.

Legislative committee debates shield law

By Robert A. Bertsche

I attended Wednesday afternoon’s spirited hearing at the Statehouse on the proposed Massachusetts shield bill, before the Legislature’s Joint Committee on the Judiciary. The bill is titled the “Free Flow of Information Act,” H.1553, described as “An Act providing against compelled disclosure of certain information by the news media.” Here’s a quick account of the proceedings.

Bottom line: Passage is far from assured, but the bill got its most thorough airing in years. Longtime Boston news anchor and reporter Susan Wornick spoke passionately in favor of the bill, backed up by three media lawyers (including my partner, media lawyer Jeffrey J. Pyle) and Rep. Josh S. Cutler, D-Duxbury, one of the bill’s sponsors. The committee’s House vice chair, Rep. Christopher M. Markey, D-Dartmouth, was most outspoken in opposition.

Wornick, of WCVB-TV (Channel 5), recounted her ordeal of being almost jailed in the mid-1980s for refusing to reveal her confidential source to police and a grand jury investigating alleged corruption by Revere police. “I made this promise because this man had important information. Without his information, I could not have told the story, and law enforcement could not have done their jobs.”

“I was terrified,” Wornick recalled, but she said she received widespread public support for her courage in protecting her source. “People were infuriated that I was being harassed and demonized by law enforcement because I wouldn’t break my promise.” Ultimately the source identified himself in order to save Wornick from jail time. It was big news at the time; she received a standing ovation from a packed Boston Garden when she was introduced to the crowd at a Celtics game.

“We need a shield law in Massachusetts to that journalists can do their jobs,” she said. “Anonymous sources are crucial” to journalists — we all know that.”

Media lawyer Jonathan M. Albano followed. When he started working in this legal area in 1982, the most recent case on the subject was In re Roche, two years earlier, in which the Supreme Judicial Court noted that it might be beneficial if Massachusetts law provided reporters “more clearly defined protection against intrusive discovery” than existed under the common law balancing test then (and now) in force. With clearer standards in place, “news reporters and sources might be able to base their behavior on better defined expectations, thus encouraging informed expression,” the court wrote then.

“It has been 32 years since that case and there are still no definite rules in place to guide reporters,” said Albano, managing partner of Bingham McCutchen’s Boston office. “Today, whether a source will be protected, and whether a reporter will be required to testify about that source, depends on which judge you draw,” and that judge’s exercise of her or his discretion, he said.

Pyle, appearing on behalf of the New England Newspaper and Press Association (with 230 Massachusetts daily and weekly newspaper members), then described the provisions of the proposed shield law. “The bill provides much-needed clarity that would protect the future Susan Wornicks of the world,” he told the filled hearing room.

As Jeff explained, the proposed law would apply to “covered persons,” those working for “news media” and who prepared the information at issue in that capacity. “News media,” in turn, is defined to include not only mainstream and student media but also “any entity that is in the regular business of gathering and disseminating news or information to the public by any means….”

The bill offers a near-absolute privilege as to disclosure of information identifying any news source (whether confidential or not), subject only to an exception where necessary “to prevent imminent and actual harm to public security from acts of terrorism,” in which case disclosure may be compelled if disclosure of the source’s identify “would prevent such harm” and if “the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”

The bill offers a qualified privilege as to unpublished information, the disclosure of which may be compelled only if a court finds, after notice and hearing, that there is “clear and convincing evidence” establishing that (1) the information is “critical and necessary to the resolution of a significant legal issue” before a governmental entity, (2) the information “could not be obtained by any alternative means” and (3) “there is an overriding public interest in the disclosure.”

Jeff reminded the committee of Providence television reporter Jim Taricani’s four months of home confinement in Rhode Island for defying a court order to reveal a source; James Risen’s ongoing battle to protect his source for national security secrets published in his 2006 book about the CIA; and Fox News reporter Jana Winter’s battle to protect a confidential source for her story about the notebook that James Holmes sent to his psychiatrist, previewing the shooting spree that resulted in the death of 12 moviegoers in Aurora, Colo. “In the absence of a shield law,” he said, “Massachusetts reporters face a real and imminent threat of going to jail” simply for doing their jobs.

Speaking for the Massachusetts Newspaper Publishers Association, attorney Peter J. Caruso Sr. told legislators that the bill offered them “the opportunity to provide courts, prosecutors, and litigants with “direction and clarity” as to the information that can be obtained from reporters.

Rep. Cutler, himself a former third-generation newspaper editor, assured his fellow legislators about what the proposed law is not: “It is not about protecting journalists — it’s about protecting journalism,” he said. It’s not the creation of a new evidentiary privilege, but rather the codification of an existing common law privilege. It’s not a “roadblock” to district attorneys, but rather “a road map setting forth the rules.” It’s “not a new, unproven legal theory,” but rather a piece of legislation already in place, to a greater or lesser extent, in 40 states. And it’s “not about helping media conglomerates,” but rather about “protecting the little guy,” including the small-town newspapers for whom even the “mere threat of a subpoena can have a chilling effect.”

When the floor was opened to questions, Rep. Markey, who worked for 15 years as a prosecutor in the Bristol County district attorney’s office, vigorously challenged the shield law advocates. He objected that the proposed law would deprive prosecutors of an important investigative and prosecutorial tool. He also lamented that as to identification of sources, the law would provide an undifferentiated privilege for reporters, the applicability of which would not vary based on the level of public importance of the issue about which information is sought. Markey said he believed the law would shift control of criminal investigations from prosecutors to journalists: “You’re putting the burden on government to show there are no alternatives” before seeking testimony from a reporter, such that a “journalist who hasn’t taken an oath is now the only person who has that knowledge” about certain criminal activity.

Albano disagreed, reminding Markey, “The journalist does not decide, the judge decides.” Markey retorted that the “clear and convincing evidence standard” to be met by those seeking a reporter’s testimony would prove a difficult hurdle to surmount. He ended with an emotional appeal, saying he is concerned about the law’s impact on “a 39-year-old mother who has a 19-year-old son who has been shot, and who is going to a wake that night,“ and who wants the police to do all they can to find her son’s killer. “You’re telling the police, ‘Go to everyone else, but don’t go to [the reporter]. “

Few of the other committee members spoke. State Rep. Sheila C. Harrington, R-Groton, asked a few clarifying questions, but the committee co-chairs, Sen. Katherine M. Clark, D-Melrose, and Rep. Eugene L. O’Flaherty, D-Chelsea, did not offer their views on the bill. As the hearing wound down, Sen. Richard J. Ross, R-Wrentham, spoke directly to news anchor Wornick and saluted her for her battle to fight for her source 30 years ago.

“You went through hell,” he told her.

Robert A. Bertsche is an attorney and chair of media law practice at Prince Lobel Tye LLP. Copyright © 2013 by Robert A. Bertsche, Prince Lobel Tye LLP. This work is made available under the terms of the Creative Commons Attribution-ShareAlike 3.0 license.

Talking politics with Storify

Voters in Boston today are heading to the polls to narrow the field of 12 mayoral candidates to the two who will be facing off against each other this November. My students are learning how to use Storify to aggregate and curate Twitter and other forms of social media. Here is the Storify I put together as a demonstration.

28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

SHOP TALK AT THIRTY
Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Every few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.

Marty Baron on the rise of specialized communities

Marty Baron at The Washington Post. Click on image to watch interview.

Based on recent statements they’ve made, I’m wondering if Washington Post executive editor Marty Baron may have a more sophisticated view of what the Internet has done to newspapers than the Post’s incoming owner, Amazon.com founder Jeff Bezos.

Bezos, who visited the Post’s newsroom earlier this month, seemed to endorse a classic paywall model, arguing that he was convinced people were willing to pay for the “daily ritual bundle” that The Washington Post represents. That brought a retort from Post blogger Timothy B. Lee, who wrote:

That daily ritual got blown up for good reason. Trying to recreate the “bundle” experience in Web or tablet form means working against the grain of how readers, especially younger readers, consume the news today. In the long run, it’s a recipe for an aging readership and slow growth.

Indeed, many news observers have been arguing for years that one of the Internet’s most profound effects on journalism is “disaggregation” — that in a post-industrial environment, with news no longer tied to the enormous costs of printing and distribution, it makes no sense for international and local news, obituaries and comics, grocery store coupons and the crossword puzzle all to appear in the same place.

Baron, the editor of The Boston Globe until late last year, comes up with another metaphor, not original to him but nevertheless key to understanding what has happened — the decline of geographic communities and the rise of communities built around shared interests. In an interview with fellows from the Joan Shorenstein Center for the Press, Politics and Public Policy, at Harvard’s Kennedy School, Baron talks about the difficulty of putting together (to cite one example) a newspaper sports section for Red Sox fans when there are speciality media devoted to nothing but sports.

This development, Baron says, was furthered by the rise of Twitter and other social media, which bring readers in to a news site to read just one article. How can news organizations make money from that? Baron puts it this way:

My sense is that people are going to their passions. Their passions aren’t always based on geography. Newspapers have traditionally been based on geography. We have a community here. We have a community in Miami, a community in Boston, a community in Los Angeles. The assumption was that people were members of that community actually would want to have a product that covered the full range of things in that community. What I observed over time was that, in fact, the sense of community wasn’t nearly as strong as the other passions that people had. In fact, community wasn’t necessarily such a strong passion. It was much more important to them that they were an aficionado of a particular type of music, or that they were a member of a particular religious denomination or that they were obsessed with a particular sports team, than the fact that they lived in Los Angeles.

Unlike some journalists, Baron thinks it was perfectly logical to give away news for free in the early years of the Internet, both because of the need to get big online in a hurry and because there was every reason to believe that advertising would pay the bills. It was only after ad revenues failed to materialize (and even began to drop because of the ubiquity of online ads), he says, that news organizations reluctantly moved to paywalls.

The transcript of Baron’s full interview is here, and it is well worth reading — or watching, as there is a video version of the interview as well.

Baron was one of 61 people interviewed for “Riptide,” a project carried out by Shorenstein fellows John Huey, Martin Nisenholtz and Paul Sagan. (The site was designed by the Nieman Journalism Lab, which also hosts it — but which played no role in the editorial content, as Lab director Joshua Benton explains.) “Riptide” is a comprehensive, valuable resource — but it has proved to be controversial since its release because it’s not comprehensive enough.

As Kira Goldenberg writes for the Columbia Journalism Review, all but five of the 61 interview subjects are men, and only two of the subjects are non-white. Goldenberg says that efforts have begun to produce a counter-report that will be more diverse. In offering a few nominations of her own, Northeastern University graduate student Meg Heckman adds:

It’s unfortunate that, in telling the latest chapter of journalism history in a fresh, narrative format, the authors of Riptide make an old mistake by continuing to devalue the contributions of women.

My own view is that “Riptide” represents a good start — but that there’s no reason for Huey, Nisenholtz and Sagan not to keep going so that it eventually grows into a truly comprehensive, diverse history of how the Internet disrupted journalism.

(Disclosures, of which there are several: I am an unpaid contributing writer for the Nieman Journalism Lab. I have long had a friendly relationship with folks at the Nieman Foundation and at the Shorenstein Center. Heckman is a student of mine, and I am a student of hers.)

A new book, and an event for “The Wired City”

I wasn’t ready to announce this, but Mark Shanahan of The Boston Globe beat me to it. My next book will be about a new era of newspaper owners and how they are going about remaking their struggling businesses.

The book will focus on Amazon.com founder Jeff Bezos, who is in the process of buying The Washington Post; Red Sox principal owner John Henry, who’ll soon add the Globe to his holdings; and Aaron Kushner, a businessman who tried to buy the Globe and then Maine’s Portland Press Herald before reeling in the Orange County Register. It’s a logical next step in my research into new ways of paying for journalism.

The idea grew out of conversations with Steve Hull, an acquisitions editor at University Press of New England. We’d been trying to do business together for a couple of years, pitching possible projects back and forth. There’s no contract at the moment, but I expect to write the book for a yet-to-be-named new trade division of UPNE. No, I won’t tell you the working title, and I expect it will change long before the publication date — probably sometime in 2016.

Meanwhile, I still have a current book to flog. I’ve got a few events coming up for “The Wired City” in the next month, including one at the Boston law firm of Prince Lobel this Thursday at 5:30 p.m. It’s free, and you can RSVP here. Cosponsors are the New England First Amendment Coalition and the New England chapter of the Society of Professional Journalists.

“The Wired City” was published by University of Massachusetts Press, an academic publisher I would recommend to anyone. I’ve had a great relationship with acquisitions editor Brian Halley, publicist Karen Fisk and company, and I can’t say enough good things about them.

Photo (cc) by Esther Vargas and published under a Creative Commons license. Some rights reserved.

Globe cuts Your Town staffing in half

Just catching up with this. Jon Chesto of the Boston Business Journal reports that The Boston Globe’s Your Town sites are being trimmed by six correspondents — approximately half the staff. Your Town, part of the Globe’s free Boston.com website, provides hyperlocal coverage of the suburbs as well as of several Boston neighborhoods.

Globe regional editor David Dahl tells Chesto that there will be no site closures. But it seems inevitable that there will be cuts in coverage, even though Globe staff reporters and freelancers will continue to contribute. There are more than 100 Your Town sites and about 15 related Your Campus websites covering colleges and universities in Greater Boston.

Your Town got off to a shaky start in 2008, as GateHouse Media — which operates Wicked Local sites in virtually all of the same communities targeted by Your Town — sued the New York Times Co. (the Globe’s owner, at least for a few more weeks) for copyright infringement, arguing that the Your Town sites in some cases aggregated virtually all of GateHouse’s content for a given community without offering much else.

The two sides reached an out-of-court settlement in early 2009, as I reported for The Guardian. Your Town eventually grew into a valuable resource in many communities. But it looks like the sites, which carry little advertising, got to be too expensive to operate.

Chesto writes that the cuts call hyperlocal coverage into question as a business strategy, noting that AOL’s Patch sites are in the midst of deep cuts as well. But though hyperlocal may well be a loser at the corporate chain level, there are a number of successful independent sites operating across the country. You could read a book about such sites, hint, hint. The real issue is that hyperlocal is best understood as a grassroots phenomenon.

Did Globe executives reach this decision on their own? Or was incoming owner John Henry involved? And if he was, what does that say about his priorities for the Globe?

(Disclosure: Journalism students at Northeastern as well as several other Boston colleges and universities contribute to the Your Town and Your Campus sites.)

Obama, Syria and presidential incompetence

I think attacking Syria is a bad idea. But what I really don’t understand is the incompetence the Obama administration has shown. It seems to me that quick retaliation in the form of a few cruise missiles might have had some deterrent effect (or not), and it’s the sort of thing presidents do on a fairly regular basis without going to Congress.

So now we’re in the midst of an all-out congressional debate over whether to take action that is supposed to be fairly limited. I don’t blame people for worrying this is going to be another Afghanistan or Iraq, because that’s how the White House is treating it.

And I find myself in the position of not wanting to see us do anything but at the same time hoping the resolution passes so that Obama isn’t completely neutered for the next three years. What a mess.