PROVO -- Save the newspapers!
It sounds a little self-serving, sure, but even in the Internet age, newspapers may be good for more than lining a litter box and wrapping fish.
What newspapers and other traditional media do, said BYU law professor RonNell Andersen Jones, is combine a passion for open government and public access with the resources to go after the government for the enactment and enforcement of those laws.
That doesn't mean increased media access so much as it means increased public access. Public legal proceedings, the right to disseminate information without government interference and the Freedom of Information Act, Utah's Government Records Access and Management Act and 49 other state open records laws are the result of newspapers hounding the government, Jones found in her research.
"The mainstream of citizenry actually just takes for granted that the law says that government is supposed to be open and accessible and accountable," she said.
What they never stop to consider is who fought for those laws to be in place, who challenged the government to ensure public access laws were allowing for maximum public access and who acted as a government watchdog to encourage enforcement.
"I just don't think it's something that people realize that newspapers are doing for them," Jones said.
She is publishing a paper in May's Washington and Lee Law Review on the role of traditional media, particularly newspapers, in litigating and legislating these open-government issues. Her research showed that in virtually every court case and a majority of the laws regarding open government and public access, newspapers instigated it.
In many cases, they kept fighting long after the battle was over and the records were released to make sure they won the open-government war.
"They did this long after the case was over," Jones said. "They were litigating on principle."
Fear for the future
The concern, then, becomes what happens to open government as newspapers get smaller, less common and have a lower profit margin, or eventually disappear in print format completely. Investigative reporting and watching the government still will happen, she said. Online publications, freelance journalists and reputable bloggers will fill much of the news gathering niche. The difficulty comes when those entities need to challenge the government. A major news corporation has the resources to take a challenge to the Supreme Court, as newspapers have done. A blogger most likely does not.
"They don't have the deep pockets," BYU journalism professor Joel Campbell said, citing The New York Times's Pentagon Papers case, in which the Times and Washington Post went to the Supreme Court to stop the government from regulating their publication of classified documents. "A blogger in Provo isn't going to be able to afford to take that case on."
He also doesn't see new media outlets like Facebook, Twitter and Google carrying the standard for open government.
Media vs. medium
Blogger Holly Richardson, who just finished her first legislative session as the Republican representative for Pleasant Grove, isn't too concerned with the result of Jones's research. The industry will adapt, she said, not die.
"I don't think if newspapers transitioned out of existence to some other form that we would lose the ability to have open records," she said.
News outlets are increasingly focusing on online efforts, she pointed out, but that doesn't change the basic structure, purpose or even content. Thus, in 20 years an online publication may be challenging the government instead of a print publication, but the challenge itself, and the publication's willingness to engage in it, remains the same.
Campbell agreed that the move to the Internet will keep journalism alive.
"There's still a need for journalism no matter what the medium is," he said. "The question is, is that medium going to produce enough money to be involved in legal fights."
Salt Lake City Weekly is a local niche publication. It's small, publishes once a week and is funded entirely by advertising. It's kind of an alternative newspaper and indicative of the more community-based news gathering toward which the media may be heading.
Reporter Eric Peterson makes numerous GRAMA requests, many to the state government. A couple of years ago, the publication spent $800 fighting the state Attorney General's Office for several documents. Considering City Weekly has a staff of three reporters, an $800 records tab is a big chunk out of the budget.
"I think it's not really something that we can afford to do that often," he said. "It's kind of an anomaly for us."
Then there's blogging. Richardson, a political blogger, acknowledged she could not afford to pursue a records request through the court system, although she said those who blog for a living may have the resources to do so.
LaVarr Webb, the editor of Utah Policy Daily, an online newsletter, said he doesn't think other organizations are going to have the clout to force challenges like traditional media, nor do they have the ethical responsibility regarding open government. Some, like his organization, have a different focus. Others lack the know-how or the desire.
"I don't think any other groups are as consistent and have the ability to hire attorneys and file lawsuits and those kinds of things as the traditional media has been," he said.
Avenues of change
ProPublica is an online news source that consistently does investigative and watchdog reporting. The organization has an agreement with a large law firm so the firm provides their legal work for free, Jones said. That won't work for every organization, but it could work for some.
Governments could step forward and, instead of waiting for a request to make documents public, make all public documents easily accessible via the web or some other resource. However, that leaves open the dispute about what to do when the nature of the records is under dispute.
Nonprofit organizations, universities, law schools and others also could step in, Jones said.
Richardson said smaller organizations or individuals could seek out other interested parties, such as political or advocacy groups or even other media outlets to form a consortium of sorts to wage expensive public access wars.
"I think the media has an important role in making sure government stays open," she said. "I know not everybody thinks that I believe that, but I really do."
Jones said the next steps in her research is to get people talking about this potential effect of changing media and then figure out solutions.
Pivotal court cases
• New York Times Co. vs. United States
In what is known as the Pentagon Papers case, the U.S. Supreme Court ruled that the U.S. government could not prohibit the New York Times and the Washington Post from publishing materials from a classified report. Justice Hugo Black, in his concurring opinion, wrote that "the government's power to censor the press was abolished so that the press would remain forever free to censure the government."
• Press-Enterprise Co. vs. Superior Court of California (1984)
A fair trial is a public trial, the Supreme Court ruled -- all of it, including jury selection. The state argued that voir dire, the process of individually questioning jurors, should be done privately and remain private because jurors' privacy could be violated. The court ruling said that certain parts of the record could remain private, but the transcript of the six-week long voir dire should be public record.
• Press-Enterprise Co. vs. Superior Court of California (1986)
Using precedent set in the first Press-Enterprise case, the Supreme Court determined that a preliminary hearing is part of the public trial process set forth in law and that a judge cannot close it or refuse to release the transcripts because potential jurors might read about it.