Journalism Schools Are Teaching Law Wrong
TL;DR: When it comes to teaching students about media law, journalism schools are mostly preparing them for a world of newspapers and magazines. This is the wrong approach. In a research paper, “Scribes Without Safety Nets,” I report how journalism schools currently teach the law — and offer some ideas about how to adopt that teaching for the digital age. Here’s a summary of that paper.
Writers in a Dangerous Time
Journalism is under attack by powerful people. Just look at how billionaires have sicced lawyers on reporters and publications like Mother Jones and Gawker. And now, the U.S. will have a President who likes to denounce the media and has promised to “open up” libel laws to make it easier to sue.
Such tactics aren’t new, of course. Rich people with thin skin have always used courts to clobber the press into silence. What’s different, today, is that journalists are so poorly equipped to fight back.
It’s a mismatch. In the past, reporters could rely on doughty legal departments to stand tall in the face of threats and to scan articles for trouble prior to publication. Today, lawyers may be a luxury for cash-strapped media outlets. And at some smaller publications, “legal” has gone the way of copy editors and fact checkers. (I’m one of the lucky ones. My employer, Time Inc, has excellent in-house counsel).
This means media outlets are exposed like never before. And the threats are just not from plutocrats like Peter Thiel who, in the words of Felix Salmon, “gave other billionaires a dangerous blueprint” when he used a sneaky litigation campaign to bankrupt and censor Gawker.
Today, anyone with a lawyer has a shot at bullying a media outlet into climbing down from a contentious story. The evidence is not just anecdotal: A majority of media executives said they are “less able” to stand up for free speech, according to a 2016 survey by the Knight Foundation.
This environment is especially perilous for young reporters. Many of them are working without a proper legal backstop, but that’s just one part of the problem. The other is that many rookie reporters are impelled to produce a style of rapid-fire publishing (“churnalism”) that is likely to lead to legal snafus in the first place.
So what are journalism schools doing to prepare students for these legal land mines? In many ways, they’re doing what they’ve always done — and that’s not enough.
What They Taught
In “Scribes Without Safety Nets,” I describe how nine prominent U.S. journalism schools are teaching the law. The research paper draws on syllabi from 13 courses, and from textbooks and related readings, to offer a conclusion: they’re doing it wrong.
J-schools have been slow to train their students how to report on digital platforms, but they’ve been slower still to adapt the legal part of their teachings.
Even though online platforms is where nearly all journalists today begin their career, the internet is often presented as a bolt-on topic when it comes to media law. For instance, journalism textbooks include chapters like “Special Considerations: How the Internet has Affected Publishing and the Law” or “The First Amendment and the Information Superhighway.” Other course material referred to “blogs” and “zines” in a way that suggested online platforms remain the province of cranks or amateurs.
As for what happens in the classroom where journalists learn about the law, it’s hard to make conclusions without being there in person. But a review of the syllabi suggests the lion’s share of the teaching time is based on print-era cases and controversies.
Obviously, such time is not misspent. Anyone who wants to understand the law —be they journalists or law students—must understand the foundation on which its built. And in the case of U.S. media law that foundation is the Constitution and cases like Sullivan, Pentagon Papers and Harper & Row, all of which transpired prior to the advent of the internet.
The problem instead is that the courses, as currently taught, appear to be leaving scant time to tell students about legal issues they are likely to encounter working for or managing an online news platform.
Here are a few such issues that get little or no attention in journalism schools: The tension between data journalism and anti-hacking laws; copyright trolls; the growing use of government gag orders to seal subpoenas against tech companies; news articles disappearing under the “right to be forgotten”; fair use in an age of GIFs and viral videos; tech companies’ use of terms of service to control content; libel on Twitter; the online expansion of the right of right of publicity; the right to use encrypted messages.
Some may see such topics as a hobby-horse for tech geeks. This misses the point: The internet is the most important platform for journalism, and so the legal issues that affect it (like the ones above) have an outsized importance. This is doubly the case now that tech companies — especially Google and Facebook—control how news is distributed.
And when it comes to teaching journalism students, the approach is confined positive law. The courses do not appear to be telling students how, even if the law is on their side, no one may have the money to defend them.
Teaching Law in a Digital Media Era
In 2010, Adam Liptak of the New York Times (who is a lawyer and journalist) wrote about how a small town California newspaper fought a legal battle right to the Supreme Court to argue in favor of open court proceedings. The small paper won.
Liptak’s article also explained how these challenges are now rare because newspapers (those that remain) can’t afford them. Even though journalists and lawyers still depend on each other to promote free expression and civil liberties, they have fewer occasions to stand together and do so.
One way to change this is for journalism schools to adapt their curriculum to recognize how legal threats have changed in an era of digital platforms and financially strapped news organizations. This should involve a realignment of reading materials and course topics, and also simulations that show how legal trouble can arise in a news environment where a reporter must file five or seven stories a day.
Schools must also get creative in helping journalists find legal help in a world where there are lawyers to call upon. This could include exposure to projects like the Digital Media Law Project, which produced an outstanding primer on media topics before its funding ended in 2014. Journalism schools could also begin to work closer with law schools and legal clinics on their campus: reporters would get a deeper understanding of the law while future media lawyers would get a practical immersion in the messy state of journalism today.
All of this is not just academic musing. Journalism today faces an existential legal threat and is more vulnerable than it has been in decades. Schools must acknowledge this and change how they teach right now.
The good news is the infrastructure is already in place. Every notable journalism school in the country is teaching their students about law already, and relying on accomplished media lawyers to do so. It would not be hard for schools to work together and modernize their legal teaching.
Schools must also help students assess whether the large tech companies now shaping journalism are friends or foes when it comes to protecting press freedom. It would be a boon (albeit an unlikely one) if the likes of Google, Facebook and Twitter came to share the values of media companies like the New York Times.
Finally, schools should act urgently. Legal threats against journalism loom larger than they have for decades, and media companies are weaker than they’ve ever been. If future journalists are to hold their own in court, they have to begin by knowing the digital dangers they’re up against.
*Special thanks to the Knight-Bagehot program at Columbia University, Professor Jim Stewart and Fortune editor Alan Murray for helping me purse this project, and to all the professors who took time to share their course work.
