Standing up for the First Amendment in the Digital Age: Do we have the will?

Make no mistake. The First Amendment has been under attack for some time now. The problem is the will to fight seems to be waning as news organizations too often don’t have the resources, or money, to fight the battles. Add to that a new generation of digital journalists and armies of people with cell phones capturing news every day that simply don’t understand the First Amendment (or simply don’t care).

The underlying problem is laws haven’t kept pace with innovation.

That’s not unusual. Many of the fundamental tenants of U.S. law is based on doctrine from more than 100 years ago — well before any of the tech we have today was around. Could the framers have ever envisioned something like a website or Periscope?

“While the digital age has opened up new opportunities for accountability journalism, we need to fill the void and continue to champion free expression through litigation, research and education.” — Lee C. Bollinger, President, Columbia University

There are so many questions, and so few clear-cut answers in the law. Many First Amendment issues haven’t been seriously examined in decades. Yet, they need to be examined and, yes, litigated if need be to protect this fundamental right. Police couldn’t come in to a TV station and take them off the air any more than they could put armed guards to shut down the printing press. But they seem comfortable taking cell phones and cameras and confiscating them when they capture unflattering images. Can they?

“The basic freedoms we take for granted under the First Amendment are hardly settled. As the internet becomes even more integral to our lives, we face significant questions about the evolution of our rights.” — Alberto Ibarguen, President, Knight Foundation

From defining what’s public versus private on social media and whether you have a right to be forgotten, to police body cameras and what is public record, there’s no shortage of First Amendment and Privacy issues to sort out.

“Digital journalism has created exciting, unprecedented opportunities for how we report and receive the news. Today’s reporters and news outlets have access to innovative platforms, fresh perspectives and a level of immediacy like never before. But it is also creating First Amendment challenges.” — Jennifer Preston, VP/Journalism, Knight Foundation.

Another symptom is the seeming indifference from government officials in dealing with the media. More often than not, FOIA (Freedom of Information Act) requests are being met by government officials with outright hostility.

“So sue us,” one official told one of our reporters when he said he wasn’t going to respond to our request.

Requests take more time than ever. Information is delayed, like a Dayton Daily News request for public records from the US Marshall’s Service that took 14 months to respond, only to tell them the request should have gone to the FBI. Or there’s a significant bill attached to acquire seemingly simple information, like the Plymouth, Michigan student journalist who asked for a list of the websites banned in public schools and was presented a bill for $8,000.

The feeling on a lot of these issues seems to be, ignore them and they’ll go away.

And they may be right. A poll earlier this year by the Knight Foundation, AP Media Editors and Reporters Committee for Freedom of the Press, and the American Society of News Editors addressed this issue with a significant number of news leaders. It called the results sobering. 65% of the editors rated the news industry as “less able” to pursue legal activity on Firs Amendment issues than it was a decade ago.

The study asked if they agreed with this statement:

“News organizations are no longer prepared to go to court to preserve First Amendment freedoms.”

53% agreed.

90% said it was an economic issue. When there’s money involved, the will isn’t there. 44% said their own news organizations were less likely to sue than in the past — at a time when it may be more important than ever and journalists are needed to help shape the way the First Amendment is applied to emerging technology.

The Knight Foundation asks two important questions: Should our freedoms depend on whether businesses have the money to defend them? Should we have less freedom because the digital age has upended the media’s business model?

“In the past, news organizations pursued and won key court cases defining free expression. But such cases can be enormously expensive and many media — both established and new — are increasingly hard-pressed in the current economic environment to support First Amendment legal action.”- Lee C. Bollinger, President, Columbia University

This week, the Knight Foundation stepped up with its largest journalism grant in history to create the Knight First Amendment Institute at Columbia University. A series of grants will spark a $60 million dollar effort to preserve and expand First Amendment rights in the digital age through research and education, and by supporting litigation in favor of protecting freedom of expression and the press.

“The First Amendment is not self-executing; only people can make it what it has become, through our attitudes, actions and, more pointedly, through the courts.” — Lee C. Bollinger, President, Columbia University.

The main activities of the Knight First Amendment Institute at Columbia University will be in the areas of litigation, research and education. The institute will watch for court cases that offer an opportunity to define First Amendment law in the digital age, with a goal of achieving significant victories, and priority given to cases with digital components. Through its research, fellowships, publications, lectures and other events, the institute will seek to help the legal community, including the nation’s network of legal clinics, understand the principles underlying the First Amendment and how they apply to new technology.

“Without sustained advocacy dedicated to defending uninhibited expression and a free press, we are at risk of experiencing a steady erosion of these bedrock freedoms. This is a precarious moment for the First Amendment, and with this Institute we hope to establish a primary, permanent, influential advocate of free expression.”- Jennifer Preston, VP/Journalism, Knight Foundation.