By Willy Stern
Editor's Note The following is an essay penned by Scene investigative reporter Willy Stern exploring the role of excessive lawyering on the state of investigative journalism in America. In addition to his work at the Scene , Stern teaches courses in investigative reporting and information gathering in the English Department and in the School of Law at Vanderbilt University.
Among experienced investigative reporters today, there is a widespread perception that their profession has changed dramatically in the last two to three decades. There is a related perception that this broad change is due, in part, to changes in the form of ownership of news organizations, which, in turn, has triggered changes in the relationships among investigative reporters, editors, and the lawyers who advise them.
Specifically, many investigative reporters believe that media lawyers administer more cautious advice than in the past. Among investigative reporters, it is widely believed that many media lawyers no longer conceive their job to include considering and representing the interests of reporters and editors. Instead, it is believed, the great bulk of media lawyers today focus on representing the interests of the news organization. Stuart Watson, veteran investigative reporter at NBC’s television affiliate in Charlotte, North Carolina and a board member of Investigative Reporters & Editors (IRE), the non-profit trade organization for the profession, states the perception baldly: “First and foremost, the lawyers work for the company. Not for you [the investigative reporter], not for journalism, not for Truth and America.”
Indeed, many veteran investigative reporters are concerned that these perceived changes are directly and negatively affecting the quality of journalism in the United States today and for the future. In the eyes of many investigative reporters, these changes have weakened the historic, watchdog role of the press in American society, and present a new and substantive threat to the press freedoms embedded in the First Amendment to the United States Constitution.
The Work of the Investigative Reporter
Investigative reporters aim to produce major news stories that, once published, will have an impact on the community. In “The Reporter’s Handbook: An Investigator’s Guide to Documents and Techniques,” author Steve Weinberg defines investigative reporting succinctly as the “reporting, through one’s own initiative and work product, matters of importance to readers, viewers or listeners. In many cases, subjects of the reporting wish the matters under scrutiny to remain undisclosed.” Investigative reporters also aim to produce stories that, in their view, will do some good in the world. Investigative reporters believe that they give a voice to those who otherwise would not have one and lend a hand to the oppressed. Investigative reporters use an old cliche: We afflict the comfortable and comfort the afflicted.
Investigative reporters have for decades functioned, with varying success, as watchdogs over American business, over American government, and over other prominent and powerful American institutions and people. By exposing wrongdoing publicly, investigative reporters believe they contribute to keeping such entities honest. Moreover, the fear of being exposed by the media also has no doubt helped compel many organizations and individuals to behave decently and ethically.
At its best, investigative reporting has led to changes in bad laws, exposed evil characters, and contributed to making the world safer and fairer. At its worst, investigative reporting has wrongly sullied the reputations of decent people and organizations. Some journalists have sacrificed fairness in a rush to make a name for themselves.
There are no reliable numbers available, but full-time investigative reporters probably represent, at most, two to three percent of working journalists today in the United States. Unlike most rank-and-file reporters, who cover a defined beat and file their stories on a regular basis (often daily and sometimes hourly), investigative reporters will spend weeks, months, or even years on a single big story. Mostly, investigative reporters can be found at newspapers and television stations of some size and stature. For example, at any given time, The Washington Post has 20 or so investigative reporters on staff, The Chicago Tribune about 10. By contrast, in my hometown of Nashville, the dominant daily paper, The Tennessean, has only three full-time investigative reporters; each of Nashville’s three major network television affiliates — ABC, CBS and NBC — has one on its news staff; and Fox News has no investigative reporters in Nashville. Those kinds of numbers are typical of mid-market American cities. Smaller news organizations in smaller towns generally do not have the resources to hire an investigative reporter. Then again, a growing number of news organizations have the money to hire investigative reporters but are simply reluctant to undertake expensive reporting projects that may stir up controversy.
Investigative reporters make their living exposing wrongdoing by very crafty people. In short, they are skilled at reading people. They are able to read their body language, facial expressions, words and deeds. The ambiguous nature of the profession explains why investigative reporting is difficult to teach in a classroom. Top investigative reporters are born, not trained. They are deeply curious about the world. They have a gift for understanding people from all walks of life, and for being able to gain their trust. Investigative reporters find themselves working odd hours, meeting sources in hotel rooms and parking lots, and receiving documents passed through car windows. In developing any given story, investigative reporters can be called upon to function variously as psychiatrist, forensic accountant, bartender, private eye, and best friend.
Investigative reporters tend to be self-righteous, self-centered, and annoying. Their shirttails hang out and they show up without ties. They carry backpacks. They do not spend much time in health clubs. They tend to smoke and drink too much. Their language can be profane. They tend to be loners. They are ornery, opinionated, and difficult to manage. They are never in the office and their desks are disaster zones. They are chameleons: they can blend in at both the bluecollar bar and the country club, but generally prefer the former. At least, all of that is the image they cultivate.
Beneath that exterior, investigative reporters tend to be idealists, though they are loath to admit it publicly because it sounds sappy and self-promotional. Nevertheless, they have chosen the investigative reporting path because they are passionate people who, as the saying goes, “want to make a difference.” They are also conflicted. They tell themselves that they followed a different — and higher — calling than many of their social peers and remind each other, in a tone too shrill at times, that they are the ones with a “social conscience.” They are publicly nonchalant and easygoing, but privately they wrestle with self-doubt. Like everyone else, they worry about how to put their kids through college. Sometimes they wonder if they should have gone to law school.
There is a tacky side to the investigative reporting profession as well: investigative reporters like to win major journalism awards. The editors who manage investigative reporters are all too aware that the audience for lengthy exposes is not just the paper’s customary circulation, but also a panel of journalistic peers around the country who serve as judges in journalism contests at year’s end. Few in the news industry like to advertise this self-serving side to the profession, but it is prevalent.
The two critical work relationships for the investigative reporter, apart from sources for particular stories, are those with the editor and the lawyer. Each relationship is unique. Among the more common roles assumed by the investigative reporter’s editor are to provide guidance and input during the news-gathering process, to ensure that the reporter is moving forward with the project on a workable time schedule, to protect the reporter from other editors who may try to commandeer him or her to work on a different story, and to edit drafts of the investigative story or series. The role of the lawyer, meanwhile, is to provide legal advice to the investigative reporter and the editor with respect to the gathering and publishing of news stories. The lawyer’s bills or salary are paid by the news organization, and typically come out of the budget of that organization’s editorial — or news — department. Such attorneys may work in-house, as is typical at many larger news organizations; alternatively, the news organization’s attorney may be an outside counsel.
Historically, the main function of the media lawyer has been “vetting” — the lawyer examines, from a legal perspective, the investigative article or news segment shortly before it is aired or published. The lawyer looks for potential problems under libel laws or other applicable legal standards. This is usually followed by a conference during which the lawyer raises issues of legal concern with the reporter and editor. The reporter naturally does not want to see many months of shoe-leather research get “watered down” at the last minute by the lawyer — often called “the suit.” The editor’s role is to moderate between the goals of the investigative reporter and the advice of the lawyer. Eventually, compromises are reached, and the story typically goes to print or on air.
To investigative reporters, the First Amendment is both Bible and comfort blanket. Investigative reporters like to cloak themselves in the rights of a free press. They do so sanctimoniously at times. They haughtily toss around expressions like “the public’s right to know” and “constitutional freedoms” without really having any deeper understanding of what these phrases mean. Nonetheless, most investigative reporters believe — and will tell anyone so at length — that journalism is a business unlike other businesses. The journalists’ mantra looks like this: The news business is a sacred trust, secured by the United States Constitution. As such, the news business should not be treated like other for-profit businesses. Journalists seek a higher calling than merely making money, namely bringing The Truth to The Public. In doing so, journalists help preserve the bedrock of American democracy. All journalists are trained to spout this mantra, but investigative reporters do it with more vigor than most. After all, they file stories infrequently and their stories are expensive to do. An accountant would have a hard time justifying the many short-term costs on a balance sheet — both actual and potential — associated with investigative reporting. So investigative reporters invoke the Founding Fathers in response to threats to their occupation and their livelihood. That is about as deep as their legal-intellectual underpinnings generally go.
Of course, in a more mundane, if practical, sense, investigative reporters have good reason to respect the authority of the law. Why? Because the law tends to protect them. It is difficult to sue investigative reporters for libel and win. Investigative reporters have a working knowledge of cases and of libel law — of the standard that states that a public official is defamed only if published information is untrue, and if the news organization published the information with “actual malice û that is, with the knowledge that it was false or with reckless disregard of whether it was false or not.” Virtually any decent investigative reporter is familiar with this language, which is embedded in the landmark 1964 U.S. Supreme court case, New York Times Co. v. Sullivan.
As well, the law generally favors public access to government activity. It is difficult for public officials to withhold information from investigative reporters, or to meet outside of the glare of the Sunshine Laws, the regulations that require government officials to conduct affairs of state in a public setting. Investigative reporters still have surprisingly free rein to roam around the country, talking to whomever they can convince to talk to them, in pursuit of stories. In general, the law makes that possible.
To be sure, most investigative reporters know a horror story involving a judge who rendered a judgment that made no sense to them. Investigative reporters swap stories of rulings that obviously set bad legal precedents for the practice of investigative reporters. In fact, investigative reporters, like so many little poorly dressed robots, uniformly and loudly decry any legal judgment that is not overtly pro-media. But, much as they hate to admit it, their reactions are typically little more than a way of blowing off steam.
Investigative reporters who have taken overseas assignments or have some knowledge of the press laws in other countries particularly appreciate the extraordinary press freedoms available in the United States. Most investigative reporters’ views of the law are roughly in line with those of Bruce Dobie, the Nashville Scene editor, who says he has “real faith” in our legal system. “I honestly feel that there should be some minimal restraints in place preventing the insane among us from publishing material that is, like them, insane,” reports Dobie.
The Shift in Ownership of News Organizations
In the last twenty-plus years, there has been a fundamental shift in ownership of news businesses. A few decades ago, most newspapers were locally owned, often by a wealthy family who could — and sometimes did — use the pages of their paper to pursue their private agendas. A firsthand witness to this unfortunate byproduct of private ownership was Eddie Jones, longtime Nashville political insider and editor-in-chief of the city’s afternoon daily, The Banner, from 1987 to 1998:
In Nashville, in the 1950s and 1960s, we had a classic example of what happens when wealthy publishers dictated editorial policy. The owners of The Tennessean and The Banner each had their own candidates for political office. The Tennessean had liberal ownership; we had a conservative owner. [The owners] didn’t come right out into the newsroom and tell the reporters what to write, but word would filter out. Then we’d shade the news according to their political agenda. It wasn’t just the reporters. The photographers and editors had to play the game. Both papers would cover the same speech by a candidate for governor. If it was The Tennessean’s guy, they’d report the next morning that there were “3,000 wildly cheering supporters at a political rally.” The Banner article would say, “A few hundred people gathered at a quiet political event and left as soon as the music stopped.” These sorts of shenanigans didn’t just happen in Nashville, but at other privately-owned papers around the country. It was how things were done in that era.
The age of the independently owned media outlet has yielded to a new era in which the majority of newspapers and television stations are owned by large media companies, which tend to be image-conscious and risk-averse. Today, the overwhelming majority of newspapers — and TV stations for that matter — are owned by media conglomerates, mostly publicly traded companies. As of 2001, only 280 of 1,483 daily newspapers in the U.S. were independently owned, according to James V. Risser’s excellent essay, “Independent Papers: An Endangered Species.” Most of these are in smaller towns; in fact, Risser reports that only 12 of these independent papers had a circulation over 100,000. Ownership of television stations has followed a similar trend toward consolidation. Investigative reporters and many editors in the news industry refer to the newly predominant form of ownership as “corporate ownership.” Their use of the term is typically pejorative.
To the investigative reporter, the advantage of local, private ownership was that the paper’s owners often were willing to dedicate large sums of money to fund lengthy and expensive investigative projects. Investigative reporters were cut loose to produce tough stories. The disadvantage to the investigative reporter was the paper’s owners at times used their investigative reporters to further their own personal or political interests, like digging up dirt on political enemies. Stories abound — some probably apocryphal — of investigative reporters in bygone days who were suddenly yanked off stories when their investigation widened to friends of the paper’s owner.
By contrast, large-scale ownership of news organizations may have resulted in more fair and responsible journalism. The days when an opinionated newspaper owner could, and did, order his editor to attack the publisher’s personal enemies in print are, thankfully, largely behind us. However, corporate ownership of the news industry has brought with it one major change to the investigative reporting craft, a change that does not sit well with many investigative reporters: many news organizations are far more reluctant to undertake lengthy, expensive and high-profile investigative reporting projects. Traditional investigative reporting often triggers angry letters, lawsuits, and controversy. Large media companies do not generally like to receive angry letters from readers or viewers. They also do no like to get sued, nor do they like to become embroiled in controversy. It would not be responsible to do these stories — the theory goes — not when editors and publishers have a responsibility to return value to their parent company’s shareholders.
“We got mixed signals from corporate,” confirms a former editor of a mid-market Florida daily newspaper. “They liked to win awards but — even more so — they hated to get angry letters or to get sued. So we tended to chase ’safe’ investigative stories that wouldn’t bring a backlash.”
The Changing Media Lawyer
Investigative reporters want the media lawyers with whom they work to aggressively support the aims of investigative journalism. They want a media lawyer who is not afraid to support traditional-style stories, who understands that controversies and even lawsuits are byproducts of the investigative reporting process. Monika Bauerlein, senior editor at Mother Jones magazine in San Francisco, believes she has been “really lucky in that for much of my career I worked with a terrific lawyer, scion of an old small-town newspaper family. He GOT IT. He said the kinds of things you go to a lawyer to hear: ’This, that, and the other thing could give someone grounds to sue you. I’d love to go to court and defend you on it.’”
Investigative reporters also want an attorney who has not only book smarts but also street smarts. To know only the law relating to reporting and not the demands and exigencies of the reporter’s job is, to the investigative reporter, generally pointless. Legal review works “best when the lawyer shows some enthusiasm and/or appreciation of the amount of effort that went into collecting it,” explains Fred Schulte, veteran investigative reporter at the South Florida Sun-Sentinel newspaper in Fort Lauderdale, Fla.
There are enormous obstacles to getting any investigative story into print or on the airwaves. A personal digression may help explain this point: Since I moved to Tennessee in late 1996 to work as the Nashville Scene’s investigative reporter, I have been tailed by a private eye, secretly photographed, and been the target of both an expensive background investigation and of two well-funded smear campaigns. These efforts were overseen and managed by law firms whose clients I was investigating. Most appeared to be attempts at intimidation or character assassination. All were legal. I have received phone calls from people, including in one instance a cop, telling me they know my home address and where to find my family. I have been sued twice — neither time successfully — for articles I wrote prior to joining the Scene. Again, there are no hard data on these trends, but countless conversations with other investigative reporters at professional conferences and in many other situations suggest that experiences like mine are becoming more common among investigative reporters.
Dale Willman, executive-editor of Field Notes Production, a group dedicated to environmental journalism, speaks for many of his colleagues when he says the ideal media attorney is “one who understands the needs of journalists and works with them to make their stories better.” Rich Oppel, the editor of the Austin (Texas) American-Statesman, says that, “the best newspaper lawyers are also newspaper men or women.” According to Oppel, the best media lawyers û or “libel lawyers,” as they are known in industry jargon û have one overriding trait: a bias to publish.
Nashville Scene editor Bruce Dobie says more expansively:
A good libel attorney, if you can find one, can edit like an editor. He can think like a very fine reporter. And he should occasionally counsel restraint simply because good journalists are not by nature people of restraint. In the heat of the moment, as an attorney is arguing with his editors and reporters about whether to run with a particular phrase, it’s appropriate for the attorney to turn to the reporters and editors and say, ’Look you idiots, you are already gonna accomplish a shitload by saying such and such. Getting rid of this particular phrase really isn’t gonna matter a whole lot.’ In this regard, an attorney can be a wise elder.
In short, investigative reporters want to work with a lawyer who helps them fulfill their objectives as journalists. They value most highly a lawyer who does not appear to separate the interests of ownership from the interests of traditional investigative journalism; who understands traditional investigative journalism as part of the business of a news organization; whose understanding of media-related law is grounded in knowledge of the actual work of the investigative reporter; and who is loyal to the goals and values of investigative journalism. Investigative reporters associate such attorneys with the bygone era of local, private ownership of news organizations. Such lawyers — “old-style” lawyers, for lack of a better term — have an affinity for the work of the investigative reporter.
To the investigative reporter, a bias to publish seems obviously appropriate to the question whether to run a given story or particular details of a given story, but today finding attorneys with such an inclination is increasingly difficult. The shift to corporate ownership of media organizations appears to have resulted in the rise to predominance of what might be called the “corporate” media attorney. It appears to have triggered changes in the attitudes of lawyers who work for those organizations toward investigative journalism and in the working relationship among the attorneys, editors, and investigative reporters. To be sure, there is no empirical data to support the contention that media attorneys approach investigative reporting differently than they used to, but investigative reporters see and live the change daily.
The single most important difference between the old-style attorney and the corporate media attorney is that the latter tends to lack a bias to publish. From the investigative reporter’s perspective, corporate media attorneys tend to sacrifice traditional investigative reporting in favor of playing it safe. Whereas old-style media lawyers like to figure out how to say “yes,” no corporate media lawyer has ever gotten in trouble by saying “no.” Investigative reporters perceive in the corporate media attorney’s conduct a certain kind of mental calculus on how to handle a story. One veteran investigative reporter, Forbes magazine’s Mark Tatge, says the calculus is based on fear, and goes like this: “Will we get sued? Will we look bad? Might I lose my job? Okay, I better water down this story.” What happens when an attorney decides to play it safe during the vetting process? Risk-averse legal decision-making may manifest itself in many ways. Among the more widely used techniques used by libel attorneys to water down a story is the removal of any sentence which attributes information to unnamed sources. Some attorneys will insist on including long statements of denial by the target of the investigation, even when the news organization knows such denials are factually untrue and, therefore, misleading to readers. Increasingly, corporate attorneys are refusing to allow hard-hitting, yet accurate, stories to be published at all û if the threat of a lawsuit is real.
This is not to say that investigative reporters want a rubber-stamp of an attorney who will simply let them publish whatever they want. They want to be challenged, pushed, and held accountable, but they want to know that their attorneys are asking the hard questions out of the sincere desire to support responsible, hard-hitting journalism, not out of fear of a lawsuit or of provoking a wave of angry letters.
Investigative reporters who are traditionally minded about their job, who work their sources and seek to produce a hardhitting story, shy away from working at newspapers or television outlets where corporate lawyers tend to dominate. The aversion goes both ways, too: corporate-style editors tend to hire the type of investigative reporters who will not feel hemmed in by the limitations imposed by the attorneys.
Since investigative reporters win awards, they frequently get headhunted by competing media organizations, quietly desperate to garner similar accolades. A standard method used by investigative reporters in evaluating a job offer is to find the veteran on staff and ask: “How’s the lawyering?” Most responses fall into one of two categories: either the lawyering is good (old-style), or the lawyering is bad (corporate-style). There simply is not much middle ground.
Not all corporate-style news organizations impose corporate-style lawyering. One such company is the Minnesotabased Hubbard Broadcasting, Inc., which owns a string of television stations. “The owners here get it,” explains Gary Hill, director of investigations at KSTP-TV, the ABC affiliate in Minneapolis-St. Paul. “They set the tone. The owners ask us if we got [the story] right. If we do, they will back us to the hilt and let the chips fall where they may. The lawyers’ primary involvement is to try to insulate us; we have the final say.”
To investigative reporters, one indication of the quality and sensibilities of a media attorney is where the vetting conference takes place. Investigative reporters are wary of media attorneys who summon editors and reporters to The Law Office. It sends all the wrong signals. Old-style media attorneys like to meet at the newsroom and roll up their sleeves. Such behavior suggests that they support the work of writers and editors, and that they see their role as providing advice rather than making final decisions.
Investigative reporter, editor, and book author James Neff joined Seattle Times as investigations editor in 2001 in large part because it is one of the last large newspapers in the country still controlled by a local family. Local ownership was a “huge feature in my decision to join the paper,” says Neff. “Now that I’m here, I can say that the editors are more than willing to spend money on lawyers to stand up for the public’s right-to-know,” he adds. “The lawyers are 100% behind us.”
Some of my own experiences are illustrative, too. Several years ago, I worked at Forbes, the privately owned, New York-based business magazine. The late Tennyson Schad set the standard for media lawyers there. Forbes reporters adored Schad and regarded him as the archangel of old-style newsroom attorneys. Stories of Schad’s willingness to toughen up Forbes’ articles were the stuff of legends around the coffee machine at the staid magazine. I recall Schad saying on more than one occasion something like: “This isn’t strong enough. Add some meaty stuff here. If it’s true, the hell with ’em. Run the damn thing.”
In the mid-1990s, I moved from Forbes to Business Week, which is owned by The McGraw-Hill Companies, a large, publicly traded media company. In my experience, the lawyers and indeed the entire institutional approach to investigative reporting at the two magazines contrasted sharply. At Business Week, I was continually frustrated by a lack of support for investigative reporting projects. With some exceptions, I found myself working with a self-selecting group of editors who had, to my mind, two annoying habits: First, they did not typically allow reporters into the conferences with the lawyers, meaning there was no way a reporter could defend his or her reporting. Second, as far as I could tell, the editors tended to take the word of the lawyer as the final word, without making independent decisions.
There was also a structural problem with the lawyering at Business Week, a problem that seems to be common to large media companies. Most big media organizations have a sizable team of in-house media attorneys. When a contentious story pops up, it gets assigned to whatever attorney is on call that day. Often, that attorney has never met the editor or reporter before. These attorneys, reasonably, are trying to work their way up the career ladder within the organization. They therefore take an extremely cautious approach to investigative reports. In my experience at McGraw-Hill, the in-house attorneys were intelligent and very well educated, but, it seemed, driven by a desire not to make what might be perceived as a mistake rather than to be helpful in getting a story published. In other words, none wished to become The Attorney Responsible For The Article That Brought On The Lawsuit.
At Business Week, the editors could be even more timid than the lawyers. A quick example illustrates the point: I had researched and filed a story on a sophisticated scam undertaken by two high-profile business consultants to secretly infiltrate The New York Times book best-seller list. Much to my surprise, the McGrawHill attorneys approved some strong language in the expose about whether the scam was illegal. Nonetheless, a senior Business Week editor inexplicably removed the offending language. Such conduct struck me, and I think strikes traditionally minded investigative reporters everywhere, as an abdication of the editor’s responsibility.
The Proliferation of the Safe Story
The total number and circulation of daily newspapers in the United States has been in decline since 1975. Executives at local TV networks are also desperately trying to hold onto their shrinking numbers of viewers. Three common explanations for why news outlets are losing their audience are competition from cable channels, the glut of free content available online, and the reduction in leisure time for many Americans. Many traditional investigative reporters believe that another important reason has been the continual decline in traditional-style investigative reports that can stir up a city, a phenomenon that seems to be a result of the general trend toward corporate ownership of media organizations.
Safe stories are, in fact, the order of the day at many news organizations. The structure of news gathering and news reporting at some papers and TV stations favors producing stories that appear to be risk-free or that are about people or companies that do not appear likely to sue.
Apparently, in some instances, the shift to corporate-style ownership has effectively phased out access to old-style lawyers altogether. That was the experience of Geneva Overholser during her tenure as editor of the Des Moines Register. She has also been ombudsman for The Washington Post and a member of the editorial board of The New York Times. Today, she holds the Curtis B. Hurley Chair in Public Affairs Reporting at the University of Missouri School of Journalism, in its Washington D.C. Journalism Center. She explains:
My experience is that having good first-amendment lawyers who are smart, knowledgeable and fundamentally on the side of publication is gold. The decline in their availability is one of the worst and least-acknowledged costs of the relentless profit pressures newspapers have experienced.
When I first went to work for the Des Moines Register in 1981, we had a stellar, in-company staff of three lawyers. They loved newspapering. They’d be in the newsroom in 20 seconds flat, and they’d spend all the time you wanted. They’d argue with you, but they’d argue in the understanding that the editor was supposed to be in there arguing every bit as forcefully, and that the editor had the last word (well, the last one before the publisher.) Terrific, aggressive, edgy journalism is the common result of such a mix.
By the time I became editor, in 1988, we employed no lawyers. We were encouraged to work with corporate lawyers a thousand miles away, whose time was limited and whose instincts were to avoid risk. When we worked with our local associates, it cost a fortune. When it came to budget time, those lawyer fees vs. reporter hours were like a guns vs. butter budget debate. The lawyer hours were easier to give up.
All kinds of things did not happen, from the lawsuits we would have initiated to the contributions we made to the state Freedom of Information Act council to the assertiveness of some of our stories (and no doubt the care and scrutiny of some).
It’s a huge loss. A terrific newsroom lawyer is one of the best tools our free press has going for it, and it’s a rare tool today.
In other instances, many investigative reporters believe, editors rise to the top of news organizations today by demonstrating sensitivity to the desires of the corporate parent. Such editors often may be fine journalists who take personal delight in doing hard-hitting stories, but they know how their superiors higher up in their corporate hierarchies will likely receive such investigative reports. Furthermore, these editors typically surround themselves with corporate newsroom attorneys who reinforce their fears of undertaking investigative reporting projects. If they are lucky, the editors can select which lawyer or lawyers will represent their news organization. Then again, some editors pick risk-averse attorneys because they know such a selection will be pleasing to executives higher up in the echelons of the news company. Other editors were and are compelled to work with whichever law firm their corporate parent dictates to them. Timid editors and timid attorneys attract timid reporters. The result is an increase in “safe stories” and a corresponding decrease in the quantity and quality of traditional investigative journalism.
Until recently, final decision-making authority regarding disputes about content rested with the editor. Now, however, in practice, it seems that the lawyer’s advice is often taken as the final word in these conferences. “More and more, the lawyers, and not the editors, are calling the shots,” confirms Joel Kaplan, former investigative reporter at the Chicago Tribune who today is chair of the newspaper department at Syracuse University’s S.I. Newhouse School of Public Communications, where he teaches investigative reporting. As noted, it seems that the lawyer’s advice is more and more cautious.
Some editors take a pro-active approach to the problem of cautious media attorneys. For example, Oppel, the editor of the Austin American-Statesman, believes that editors and reporters simply should not tolerate lawyers who discourage or prevent publication of investigative reports out of an apparent excess of caution due to corporate ownership. “What drives me nuts is to have a lawyer say, ’Do not publish this,’” reports Oppel. “Almost as bad: ’I wouldn’t publish this.’ I’ll listen to that once, maybe twice, and then I tell the lawyer, ’Look, let’s get something straight. I practice journalism. You practice law. You tell me what the law is — and maybe assess the risk of whether we’ll be nailed for violating it — and let me make the decisions about whether to put something in the paper.’”
The increasingly cautious nature of the media attorney’s advice has led a small number of editors and investigative journalists to go even further: they have essentially stopped employing or consulting lawyers altogether. Such a radical course of action is only possible, of course, when the journalist is not required by ownership to work with an attorney. One such radical is Jay Brodell, editor of A.M. Costa Rica, an online news service. Brodell’s justifies his view by explaining that “very few lawyers have any guts at all. They [lawyers] get money for advice. The easiest advice is to wrap up a story in so many details that it never sees the light of day.” Clearly, only a minority are in a position to take such a course, and at present even fewer do take it, but more investigative journalists and editors who support them may be headed in that direction.
Safe stories result not only from phasing out of old-style attorneys and from cautious advice but from phasing out even the attempt at investigative reporting. Many newspapers and television stations no longer have investigative teams, or “I-teams,” as they are known in the industry. Today, the more innocuous sounding “project teams” have replaced investigative teams at many media outlets. Projects reporters still file long, in-depth stories or series, but these stories are often explanatory, or reconstructive, in nature. Two examples of “safe” projects: What went on, minute by minute, behind closed doors at the White House on Sept. 11, 2001? Or, what are the pros and cons of the many options available to the local legislature in trying to fix the looming budget crisis? Although exhaustive features like these can be enlightening, they are simply not investigative, at least as the term has traditionally been used: no bad guys get exposed, no federal investigations get launched, nobody goes to jail, and so on. Most tellingly, these stories make the media lawyer superfluous. The media lawyer scarcely even needs to vet them.
Another variant of the safe story brought on by corporate ownership of news organizations is a new type of investigative reporting, so-called “computer-assisted reporting.” In this practice — known by its acronym “CAR” in industry jargon — computer experts and journalists analyze and cross-reference databases in search of trends or problems that could then be turned into a so-called investigative report. A few of the hundreds of computer-assisted reporting projects undertaken each year can be quite compelling, like the investigation undertaken by Bill Dedman when he was at the Atlanta Journal and Constitution. Dedman used computers to help prove that banks in Atlanta were discriminating against African-Americans. For that investigation, Dedman won the Pulitzer Prize in 1989, the highest award an investigative reporter can attain. Many traditional investigative reporters, however, question whether manipulating databases on a spread sheet should be considered investigative reporting.
Yet another variant of the safe story is the replicated story. Frequently, nowadays, a reporter seeks to replicate a reporting project that has already been completed in another city. One means of furthering such projects is to circulate an e-mail among other reporters. An e-mail that was sent out in February 2002 by a Knoxvillebased reporter is typical. The reporter asked, “Has anyone out there used CAR to do a story about ambulance response times in their community?” That reporter’s readers may get a better sense of which ambulances in Knoxville are slow to respond — according to the computer anyway — and such information has some value. But one wonders what serious misdeeds are going unreported in Tennessee while the reporter fiddles around on her computer, analyzing publicly available computer data on ambulance response times broken out by geographic area.
Cautious lawyers are only one of the many reasons why safe projects like stories driven by computer-assisted reporting have become more prevalent — they also happen to be cheap and easy-to-reproduce. Forbes’ Mark Tatge, speaks for many of his disillusioned colleagues when he says that “there is an easy correlation to be made between the pressure for profits at newspapers, the changing legal environment and the rise of easy-to-replicate stories like ’dangerous intersections’ and ’deadbeat dads.’ It’s no accident that these stories tend to dominate investigative reporting today and why more serious profiles of about political corruption and misdeeds by individuals are tending to take a backseat.” Tatge is no wide-eyed, knee-jerk, anti-business agitator. He is, after all, a senior manager at Forbes, champion of unbridled American capitalism. Furthermore, as Tatge notes, “’What the computer says’ has become more reliable, in many cases, than what sources have told you.” In other words, no news organization is going to get sued over printing the results of a computer analysis. That is why lawyers with corporate sensibilities adore computer-assisted reporting. Media lawyers rightly have to consider whether an investigative reporter’s anonymous sources will testify should the news organization be sued. They also must question how those sources will hold up under cross-examination. Computer databases make for solid evidence and, even better, never get cold feet or fail to show up in court on the appointed day.
Even though the vast majority of the most compelling and important investigative projects of the last 100 years have relied heavily on human sources —including anonymous ones — the trend today clearly is toward avoiding human sources in favor of computer databases. These stories are safe, solid, and libel-proof. They also tend to be predictable, formulaic, and boring as heck.
The Lawyers’ Expanding Interference
Lawyers also affect investigative reporting today in ways unrelated to corporate ownership or to whether the lawyer has an affinity for the investigative reporters’ work. Most significantly, lawyers have become involved in the investigative reporting process at an earlier stage.
One reason is that, in recent years, lawyers representing plaintiffs or potential plaintiffs in media-law cases have become more sophisticated in trying to thwart the work of investigative reporters. They have developed methods other than filing a libel suit in court after publication to impede researching and publishing a story. Today they are increasingly attacking investigative reporters’ methodology, not the content of their work. Robert Steele, director of ethics program at the respected media school, The Poynter Institute, confirms that how news is gathered is under attack today. “The process can be as vulnerable [to plaintiff’s lawyers] as the product in both a legal and ethical sense,” he reports.
A personal anecdote is enlightening: In the late 1990s, I undertook a lengthy investigation of Baptist Hospital, a large, not-for-profit medical center in Nashville. The resulting stories outlined in some detail kickbacks and other illegal business practices in the real estate and construction units at the hospital. Shortly after publication, both the hospital’s CEO and construction manager were fired.
The Nashville-based law firm which represented the hospital in matters of labor law, King & Ballow, also had a group that did libel defense work. Like other firms around the country that do libel defense, King & Ballow belongs to the Libel Defense Resource Center, the pro-First Amendment organization whose bylaws prohibit its members from filing lawsuits on behalf of plaintiffs in media cases. While I was reporting the story, the hospital’s CEO convinced King & Ballow to try to take statements from people who hospital executives or their attorneys guessed I might have interviewed for the story. How did the King & Ballow attorneys know whom to approach for statements? After all, in a city of over one million people, against all odds, the attorneys happened to track down several obscure hospital sources of mine, some of whom had not been affiliated with the medical center in years. I was mortified when two key sources to whom I had promised anonymity reported getting visits from hospital representatives within hours of meeting with me at out-of-the-way locations..
Here’s what happened: Hospital security employees surreptitiously followed and took pictures of me while I was reporting the story. It appears that hospital employees passed along names of my sources to the law firm for follow-up interviews. The Scene later obtained and published one of these hospital surveillance photographs. Later, King & Ballow sent letters to the Scene threatening a libel suit based upon alleged statements they had received that I was not interested in writing a fair story. These letters arrived long before any article was published. Some other libel defense attorneys around the country, including Sandra S. Baron, formerly executive director of LDRC, criticized King & Ballow for its behavior in this case.
In part as a response to the tactics of attorneys for plaintiffs in media cases, attorneys for news organizations today do far more than just vet stories before they are published or go on air. Increasingly, they are being called on to help manage investigative projects at the front-end. They address such issues as whether the investigative reporter can go undercover, carry a hidden camera, enter a hospital without permission, wear a wire, or ask a source to obtain a document. Most investigative reporters are aware that plaintiff’s lawyers are increasingly focusing their attention on attacking journalists’ methodology in gathering news. As a result, investigative reporters will frequently check with an attorney before undertaking any unusual news-gathering tactics.
This day-to-day, start-to-finish involvement of lawyers throughout an investigative reporting project means that, as the lawyer’s bills pile up, the projects have become more expensive. It also means that investigative reporters are being forced to give up a desirable, traditional part of their job û independence. They know that they must satisfy a lawyer’s checklist before going out to gather information. Still, investigative reporters generally welcome the input of lawyers during the news gathering process because the alternative — leaving themselves vulnerable to a non-frivolous lawsuit — is worse.
Investigative reporters distinguish between threats of two different types of law suits. The first type of threat comes from frivolous libel suits. Investigative reporters do not fret over such a threat because such suits clearly lack factual merit. Nonetheless, such threats are scary to many news organizations today. The second type of threat is of a civil suit involving laws other than libel; investigative reporters take such threats seriously because a plaintiff might indeed prevail if such a suit is filed.
What does this mean for investigative reporters? For one, unlike earlier days, they need to have a working knowledge of far more than just libel law. They now attend seminars on such legal doctrines as invasion of privacy, breach of contract, false light, tortious interference, fraud, trespass, unfair trade practices, breach of duty of loyalty to the employer, and many others. They get up to speed on local laws. Plaintiff’s lawyers seem constantly to come up with new methods of legal attack. It seems, too, that there is a greater tendency on the part of individuals and organizations to hire lawyers. Twenty years ago, I virtually never had a call to a source returned by his or her lawyer. Ten years ago, it started happening from time to time. Today, it has become more the norm, particularly for investigative reporters with high name recognition.
A humorous anecdote: I was thinking of taking an evening course at a local Nashville college. I telephoned the registrar’s office to request a course catalog. Since I was acting in my capacity as a private citizen, I did not identify myself as a reporter. Nonetheless, the call was quickly returned by the school’s outside counsel, who was determined to scare me off whatever story he was convinced I was pursuing. It took a fair amount of assurance to convince the attorney that my interest in a night-school course was not a clever ruse to infiltrate the school.
Still, in the field of investigative reporting, it seems that everybody gets “lawyered up” early these days. That phrase, “to get lawyered up,” has become part of the lexicon of investigative reporting. At some point in the timeline of most of my projects, I will let my editor know that “everybody’s getting lawyered up” and he will respond with a knowing smile.
As a result, instead of interviewing people, many investigative reporters spend hours upon hours preparing questions, which are faxed to attorneys for the major targets or sources of the stories, who in turn interview their clients, and then send back carefully worded responses to the news organization. Reporters prefer a face-to-face interview, but many sources today will only respond to questions that have been submitted in writing.
There is a comic aspect to all this interference by lawyers, too. A fair number of lawsuits against media organizations are triggered by idiosyncratic references that nobody — not the reporter, not the editor, not the lawyer — ever anticipated would lead to problems. San Francisco Chronicle reporter Todd Wallack says that “papers often get sued for stories they never imagined would result in a lawsuit, and therefore do not seek a lawyer’s clearance.” To some extent, all the legal precautions are in vain. People are unpredictable.
This much is certain: much of the fun has gone out of investigative reporting. Investigative reporters, after all, have other career options. They choose to put up with the relatively modest pay, the daily stress, and the long and unpredictable hours that come with the job because they like what they do and think it makes a positive contribution to community life. But the rise of corporate ownership and the changes in the workplace and the work that it appears to have brought make the investigative reporting profession less enjoyable. As a result, not only old-style media attorneys but also traditional investigative reporters appear to be disappearing. A coterie of computer experts and button-down reporters who appear to take comfort in churning out safe and predictable reporting projects has come to the fore. To be sure, there will always be investigative reporters of some variant, and a number of determined traditional investigative reporters will find creative ways to practice their craft, in spite of the obstacles put forward by corporate ownership.
More generally, many veteran investigative reporters believe that the news business is being slowly taken over by a new breed of not only reporters but also of ownership, lawyers, editors, and reporters. The editors appear to shy away from tough investigative projects. The attorneys appear to base decisions and advice on a particular, narrow conception of how to run the business of a news organization and on avoiding the risk of litigation. Traditionally minded investigative reporters, by contrast, embrace a broader, more inclusive concept of the business of a news organization, one that includes public service through support of journalistic investigation of difficult and sometimes controversial questions and issues. They do not see a conflict between running news organizations as a business and doing hard-hitting journalism. On the contrary, investigative reporters see those goals as complementary, if not inextricably linked.
Investigative reporters believe that the best way to protect and improve the intrinsic value of any news organization is to support traditional investigative reporting. Of course, it is in our self-interest to think so, because we want to continue to be able to pursue our chosen profession and to have institutional support for it. But it is not self-interest which is driving our views. Certainly an editor may be able to save money in the short run by avoiding hard-hitting investigative reports, but, over the long haul, this will only serve to devalue the product—that is the perception not just of many veteran investigative reporters, but also of many other prominent journalists today.
Already, at least in the eyes of the investigative reporter and others who see value in traditional investigative reporting, this development has weakened the media’s historic watchdog role in America. A disinterested or chained-up watchdog will not be much of a deterrent to crime. By the same token, if the media are not left unfettered to poke, prod and uncover serious misdeeds and injustices in this country, such injustices and misdeeds are certain to not just to continue and but also to promulgate.
Willy Stern is the Nashville Scene’s investigative reporter. He teaches courses in investigative reporting and information gathering in the English Department and in the School of Law at Vanderbilt University. Stern has won numerous national awards and honors for his investigative reports.
Willy Stern is the Nashville Scene’s investigative reporter. He teaches courses in investigative reporting and information gathering in the English Department and in the School of Law at Vanderbilt University. Stern has won numerous national awards and honors for his investigative reports.
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