On May 8th, 2017, Washington attorney Kevin Goldberg received a call from an editor at the Public News Service reporting that one of her journalists, Dan Heyman, had been arrested and was in custody of the Charleston, West Virginia, police. He had been charged with “willful disruption of governmental process” while attempting to ask questions of former Department of Health and Human Services secretary Tom Price as he made his way through the congested corridors of the State Capitol.
“His editor had no idea what to do first,” says Goldberg. “But she knew that as a ASNE member she could call me through the organization’s hotline.”
Goldberg is an attorney who works in concert with the American Society of News Editors (ASNE), a non-profit organization that “promotes fair, principled journalism, defends and protects First Amendment rights, and fights for freedom of information and open government.” He did not personally take up the Public News Service case, but instead offered immediate legal advice. “We talked through what her options were, so in a legal sense we were sort of first responders. I was able to pass her along to local attorneys and other sources on the ground able to help.” (Charges against Heyman were eventually dropped).
The ASNE hotline is a resource open to all of its 500-plus members, whether from print or other media. It addresses the myriad of ways today’s journalist may find themselves in a legal bind, offering advice on topics as diverse as Freedom of Information Act roadblocks and defamation charges. Recent members’ requests for aid, for example, include an editor who needed information about obtaining video from police body cameras. Another sought guidance on how to handle copyright infringement by sports apps lifting content from local newspapers.
Much of the hotline’s work entails being what Goldberg calls “an early warning system” focused on various scenarios that may arise before, during, or after a publication commits to a story. “An editor may come to me and say: ‘I know the story is going to be inflammatory and somebody might come after us. How worried should I be?’ I try to spot whether or not they are going to need legal counsel.”
Because Goldberg is a lawyer for the association, he doesn’t take on ASNE hotline cases as attorney of record. That would be an impossible task given the association’s widespread membership. “I’m not licensed to practice law in all 50 states so I don’t know all the intricacies of each state. A lot of what I do is simply to provide information so members are in a position to assess their risks.”
Says Robyn Tomlin, managing editor of the Dallas Morning News: “In this age of shrinking newsroom budgets, many news organizations have had to prioritize using their legal expense budgets. The hotline is great for helping us answer questions on the things that fall between the cracks.”
Despite drastic cuts in resources, many of the nation’s larger newspapers can still afford in-house counsel, but smaller markets have a tougher time. Emily Le Coz is deputy investigations editor at the Sarasota (FL) Herald-Tribune, where there is no in-house First Amendment lawyer. She recently sought Goldberg’s help when the U.S. Department of Agriculture repeatedly obstructed her efforts to obtain land sale documents. ASNE armed her with her rights and she eventually got access to the necessary files.
Prior to her current position, Le Coz worked at the Clarion Ledger in Jackson, Mississippi. She says that digging for government information has become increasingly difficult. “Twenty years ago, if we didn’t get documents we would just sue these departments because newspapers were flush with cash,” she says. “Now these agencies have gotten used to a weakened media. They’ve figured out that if they deny us access, we’ll probably just go away.”
Goldberg insists that hostility toward the media is increasing, adding that there are lots of litigious people out there who would be happy to stick it to a news organization using threats of libel. Hulk Hogan sued the website Gawker, putting them out of business. Sarah Palin went after The New York Times hoping to do the same.
Experts fear that some media companies may be tempted to simply abandon or overlook a good story, uncertain of the expensive legal fallout it could bring. Le Coz, who has recently been personally named in a defamation suit, is cautiously optimistic that won’t happen. “Sure, there’s hesitation at every level, but we’ve never stopped going forward,” she says. “It’s just makes us more careful.”
Recently, the Charles Koch Foundation sought to ease some of that financial fear by offering a grant of $80,000 to ASNE for its hotline. The grant is expected to triple its capacity. It will also sponsor educational programs in the form of webinars and fund regional workshops through state press associations.
“The grant will allow us to be more proactive,” says Goldberg. “I’ve often worried that members weren’t using the hotline enough. Now we’ll be able to get the word out and allow them to be better legally armed to do their jobs.” – Patrick Cooke