With New Threats to First Amendment, Journalists Need to Find New Ways to Fund Court Cases

By Mollie Heintzelman

heintzelmanThroughout the last century, newspapers played a pivotal role in defending press freedoms and shaping First Amendment jurisprudence. Think New York Times v. Sullivan or Miami Herald v. Tornillo. Cases such as these helped reinforce the rights news organizations now enjoy.

But with technology changing the legal landscape and challenging the First Amendment in new ways, newspapers are now struggling to defend themselves. While issues such as defamation and “right to reply” are largely settled, we now live in a world of Internet anonymity, iPhone encryption and leaked sex tapes.

The extent of First Amendment protections continues to be questioned, yet according to one recent survey most editors believe their news organizations aren’t prepared to answer. The reason, according to nearly all of them, is simple: money.

“When your news staff has been cut by half or more and more cuts loom, it’s tough to talk about hiring a lawyer and going to court,” said Teri Hayt, executive director of the American Society of News Editors. “But that’s exactly when you have to defend your rights.”

A survey of news editors released in April by the Knight Foundation, ASNE, the Associated Press Media Editors and the Reporters Committee for Freedom of the Press — found that 65 percent believe the news industry is “less able” to pursue legal activity around First Amendment related issues. Fifty-three percent agreed that “news organizations are no longer prepared to go to court” at all.

It is unfortunate that newspapers no longer have the confidence and deep pockets they once did. This current lack of resources pales in comparison to the juggernaut status newspapers and watchdog journalists had throughout the 20th century. But what will be the consequence? Will there be a chilling effect or self-censoring from fear of costly litigation? Will the news industry as a whole shy away from controversy and its watchdog role?

Journalists need to make sure press freedoms are protected despite the financial limitations of their employers. While most pro bono minded law firms and charitable organizations aren’t able to finance the next Times v. Sullivan, there are many resources for day-to-day legal questions and smaller lawsuits. In addition to the New England First Amendment Coalition, which has many attorney board members who often take cases pro bono, journalists may find help from the following:

For journalists to be successful, they need to look beyond their newsrooms for help. As new threats to the First Amendment emerge, news organizations need to find new ways to defend themselves and maintain the confidence of their reporters. Knight Foundation consultant Eric Newton wrote that “the First Amendment may be 225 years old this year, but in some ways it is new every year — because it is shaped by the decisions of our Supreme Court. Journalists do what we have to do to stand up for it.”

We need to make sure that they continue to have the tools to do so.

Mollie is a second-year student at Suffolk University Law School. She can be emailed at eheintzelman@suffolk.edu.

Do you know of other legal resources for journalists, particularly those serving New England? Please provide names and links in the comment section. With your help, we will provide a guide to reporters looking for low-cost or pro bono legal assistance. 


NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe and Boston University.

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