SJ Quinney College of Law, University of Utah Utah Law Digital Commons Utah Law Faculty Scholarship Utah Law Scholarship 2011 Litigation, Legislation, and Democracy in a Post- Newspaper America RonNell Anderson Jones Follow this and additional works at: https://dc.law.utah.edu/scholarship Washington and Lee Law Review Volume 68 | Issue 2 Article 3 3-1-2011 Litigation, Legislation, and Democracy in a Post- Newspaper America RonNell Anderson Jones Recommended Citation RonNell Anderson Jones, Litigation, Legislation, and Democracy in a Post-Newspaper America, 68 Wash. & Lee L. Rev. 557 (2011), http://scholarlycommons.law.wlu.edu/wlulr/vol68/iss2/3 This Article is brought to you for free and open access by Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized administrator of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Litigation, Legislation, and Democracy in a Post-Newspaper America RonNell Andersen Jones* Table of Contents I. Introduction .................................................................................. 558 II. Dying Newspapers and the Loss of Legal Instigation and Enforcement .......................................................................... 562 A. The Decline of the American Newspaper ............................. 562 B. The Unrecognized Threat to Democracy .............................. 570 1. Important Constitutional Developments ......................... 571 2. State Open-Meeting and Open-Records Laws ................ 580 a. Movements for Adoption of State Legislation ......... 581 (1) State Open-Meeting Laws .............................. 581 (2) State Open-Records Laws ............................... 586 b. Waning Enforcement of State Laws ......................... 591 3. Freedom of Information Act ........................................... 598 a. Movement for the Adoption of the Freedom of Information Act ..................................... 598 b. Waning Enforcement of FOIA ................................. 605 III. Barriers to New Media Filling Legal Instigation and Enforcement Roles ....................................................................... 611 A. Self-Identity and Stability ..................................................... 613 B. Financial Considerations ....................................................... 617 C. Newspaper Subsidization of New Media Legal Battles .................................................................................... 624 IV. Future Considerations .................................................................. 627 A. University and Pro Bono Initiatives ...................................... 628 * Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University. The author thanks student researchers Hannah Hatch, Chris Whittaker, and Carla Crandall for their assistance, and Stephanie Hall Barclay, Sam Brooks, and Megan Grant for gathering materials for the Beckham Endowed Lecture, on which this Article is based. 557 558 68 WASH. & LEE L. REV. 557 (2011) B. Non-Profit Foundations and Advocacy Organizations ........................................................................ 629 C. Publicly Funded Solutions .................................................... 631 D. New Business Models ........................................................... 637 I. Introduction The diagnosis is in: The newspaper is dying. Technological, economic, and social factors have combined to lead most observers to predict that what was once the foundation of the traditional American press will disappear entirely within the next generation.1 Scholars and commentators have been closely monitoring this decline for several years,2 and much has been written about the ways in which the demise of traditional mainstream media might negatively impact the flow of information to the public, and ultimately undermine the strength of our democracy.3 Although critically important, these conversations have been underinclusive. The dialogue has almost exclusively emphasized the deleterious effect on democracy that is foreseen if newspapers cease to engage in the obviously democracy-enhancing work of newsgathering and the dissemination of information in the public sphere.4 1. See PEW RES. CTR. FOR THE PEOPLE & THE PRESS, LIFE IN 2050: AMAZING SCIENCE, FAMILIAR THREATS 5 (2010), http://people-press.org/reports/pdf/625.pdf (last visited Mar. 21, 2011) (noting that 64% of Americans believe paper editions of newspapers will no longer exist by 2050) (on file with the Washington and Lee Law Review). 2. See S. Elizabeth Bird, The Future of Journalism in the Digital Environment, 10 JOURNALISM 293, 293 (2009) ("Everywhere we look, commentators are sounding the death knell for print journalism."); Eric Alterman, Out of Print: The Death and Life of the American Newspaper, NEW YORKER, Mar. 31, 2008, at 48 ("Few believe that newspapers in their current printed form will survive."); Don Campbell, Can Newspapers Weather the Techno-Storm?, USA TODAY (Dec. 12, 2005, 10:09 PM), http://www.usatoday.com/ news/opinion/editorials/2005-12-12-campbell-edit_x.htm (last visited Mar. 21, 2011) (describing the decline of print newspapers) (on file with the Washington and Lee Law Review). 3. See, e.g., W. LANCE BENNETT & ROBERT M. ENTMAN, MEDIATED POLITICS: COMMUNICATION IN THE FUTURE OF DEMOCRACY 19 (2001) (noting that "mediated communication" may impede "democratic engagement"); BRIAN MCNAIR, JOURNALISM AND DEMOCRACY: AN EVALUATION OF THE POLITICAL PUBLIC SPHERE 7 (2000) (noting an "adverse impact on journalists’ ability to report politics objectively"); CASS R. SUNSTEIN, REPUBLIC.COM 8 (2001) [hereinafter SUNSTEIN, REPUBLIC.COM] (discussing policy reforms designed to "ensure that the new communications technologies serve democracy, rather than the other way around"). 4. See SUZANNE M. KIRCHHOFF, CONG. RESEARCH SERV., R40700, THE U.S. NEWSPAPER INDUSTRY IN TRANSITION 21 (2010), available at http://www.fas.org/sgp/crs/ LITIGATION, LEGISLATION, AND DEMOCRACY 559 Yet scholars and commentators have neglected a second—perhaps less obvious, but arguably more important—consequence of the death of newspapers. Indeed, with all of the discussion of the ramifications for the gathering and dissemination of the news, discussions about the risks that might accompany the death of newspapers have almost entirely ignored the ramifications for development and enforcement of the law. For the past 100 years, newspapers and traditional media companies have played a critical role as legal instigators and enforcers. In this role, these entities claim credit for the establishment and implementation of some of the nation’s most important statutory and constitutional mandates. Their death threatens the preservation, enforcement, and further development of these mandates. This neglected threat—which is of nothing less than constitutional proportions—is arguably more serious than the much- discussed threat to newsgathering and dissemination. While new players in the changing media ecology may ultimately fill the investigative and information-dissemination roles of newspapers that have been so important to our democracy, there is no apparent successor to the role of legal instigator and enforcer. As a result, the academic and public discussion must expand to consider ways to mitigate the fall-out from the waning of the legal instigation and enforcement once performed by these dying entities. This Article begins that important inquiry. It establishes for the first time the critical, but underappreciated, role that traditional media entities have played as legal instigators and enforcers. These organizations, most misc/R40700.pdf ("Some observers suggest that escalating problems in the newspaper industry could have broad social and civic implications, as fewer reporters monitor increasingly complex decisions by government and business."); Virginia Gray, The Decline of Newspaper Coverage, in OLD MEDIA, NEW MEDIA, AND THE CHALLENGE TO DEMOCRATIC GOVERNANCE: FINDINGS FROM THE PROJECT ON MEDIA & GOVERNANCE 40 (Univ. of Va. Miller Ctr. of Public Affairs ed., 2010) [hereinafter MILLER REP.], available at http://web1.millercenter.org/publications/mediagovt.pdf ("Newspapers and mass media in general serve two purposes in a democracy: Educating the public and acting as ‘watchdogs.’ It is hard to imagine democracy without a free press serving those functions."); Michael Hirschorn, End Times, ATLANTIC, Jan.–Feb. 2009, at 41, 43 (noting that the collapse of print journalism "will seriously damage the press’s ability to serve as a bulwark of democracy"); John Nichols & Robert W. McChesney, The Death and Life of Great American Newspapers, THE NATION, Apr. 6, 2009, at 11, 11 (arguing that the end of newspaper journalism will bring with it "the most serious threat in our lifetimes to self-government"); Benjamin L. Cardin, Op-Ed., With No Newspapers, as Thomas Jefferson Knew, Democracy Suffers, U.S. NEWS & WORLD REP. (May 4, 2009), http://www.usnews.com/opinion/articles/2009/05/04/ with-no-newspapers-as-thomas-jefferson-knew-democracy-suffers.html (last visited Mar. 21, 2011) (noting that across the nation, "small towns and big cities are losing something irreplaceable") (on file with the Washington and Lee Law Review). 560 68 WASH. & LEE L. REV. 557 (2011) prominently known for engaging in conventional newsgathering and dissemination, have also been pursuing constitutional