An economic thought on journalism's legal woes

Jacques Steinberg writes in today's New York Times on the erosion of "fundamental protections for the gathering and publishing of news that had been generally viewed as settled since the Watergate era."

Steinberg and those he quotes see danger in:
-- The jailing of a Time magazine reporter and a subpoena issued to a New York Times reporter in the CIA leak case.
-- Orders to journalists from the Times and elsewhere to identify sources in the spying case that apparently wrongly implicated Wen Ho Lee. (Full disclosure: One of those reporters, Jim Risen, is a former colleague of mine at The (Fort Wayne) Journal Gazette.)
-- Attacks on the Freedom of Information Act.

And they are right to be afraid of the potential for great damage to true, probing journalism. The analysis tends to fall along two lines: First is a "balancing act" that involves two or more elements from among free press, fair trial, privacy, trade secrets, public's right to know and government's duty to pursue wrongdoing. Second is the supposition (when it comes to the FOI) that the government, using the cover of September 11 and the continued threat of terrorist attacks, is trying to bury a host of damaging files now and forever more under the rubric of national security.

I'd suggest, however, that the analysis goes deeper and that what we are seeing has an economic basis, one that has been played out repeatedly in this country and some others since the dawn of the Industrial Age. Simply put, whenever any economic institution has become so large that the public feels threatened or worse, society has used the law as a corrective. If we think about this, we begin to see why even the press's legal victories threaten to become illusory and, in a sense, Pyrrhic.

Utility regulation began, not with electric and gas, but with grain elevators on the Great Lakes when Midwest farmers decried the economic power of those operations. Big Oil, Big Steel, Big Coal and more recently Big Telephone -- when what they have produced has become, essentially, a commodity, but their economic power has grown to threaten society, then society, often working through the courts, has stepped in and broken up or regulated the players.

So we have two questions:
-- Does modern journalism, largely practiced through Big Media despite all the hype about blogs and the new-media paradigm, fit that model? Do we even need to debate this? Hardly a day goes by that there isn't some broadside at Big Media or Big Press.
-- Has modern journalism become a devalued commodity? I would argue that, yes, modern newspapering and broadcasting, as they are largely practiced, have become commodities. The latest car accident, the latest he said-she said from Washington or the campaign trail, the endless stream of information represented nicely by the crawl under CNN, MSNBC, Fox and ESPN, have develued journalism to just information of relatively minimal value in most cases to the average person.

And so I would propose there is an economic basis to what we are seeing -- society has decided Big Press is a threat with diminshed underlying value to offset that and is reacting as it has so many times in the past. Big Press, of course, comes armed with the First Amendment and the idea that the press has a vital role in participatory democracy. This prevents the sort of frontal attack we have see on other industries.

Thus comes the evolution of the "novel" torts: privacy, trespass, contracts and others applied to the practice of journalism as society's instinct is to rein in the beast.

While Steinberg writes that these fundamental protections have appeared settled since the Watergate era, I spent the early 1980s as a Kiplinger Fellow in the lower levels of the Ohio State University law library poking through dusty copies of Media Law Reporter. Even then, cases were starting to percolate up from state courts that cast doubt on the future of these fundamental protections.

Politicians and judges worth their salt are shrewd readers of public sentiment (the "common law" into which many of these torts fall reflects those readings over time). And polticians are most certainly opportunists. So given the current opportunity, one can only expect they will try to curb vexatious journalism (the only good kind, in my opinion). Society seems willing to go along, perhaps even cheer the effort.

The laws and rulings we now fret and warn about may be the tip of social and economic forces we have unleashed and now are becoming powerless to stop. If society succeeds, as it often has, it might end up with the breakup of Big Media but have seriously wounded true newsgathering efforts in the process.

We may have become our own worst enemy.