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Landscape Study
Self-governing societies need journalism, and great journalism often requires attorneys.
Journalists need legal assistance to protect their rights as news gatherers and to defend their truth-telling. That work — the in-depth local reporting communities need to solve problems — is a pillar of democracy, and the journalists who do it should have access to attorneys, regardless of their ability to pay. However, very few nonprofit and independent newsrooms can afford attorneys fees and only a small fraction of attorneys in the U.S. have media and First Amendment expertise. Despite their small numbers, the attorneys who help journalists are effective, unsung heroes.
The landscape analysis “Standing Up For Journalism: Increasing Pro Bono Legal Assistance To Benefit Communities and Democracy” was commissioned and funded by the John S. and James L. Knight Foundation. This report connects these trends, tracking the critical legal needs of local journalists and the attorneys who can help them. The study does more than just restate the problem; it proposes a new type of solution, an expansion of an innovative pilot project, ProJourn (formerly known as the Protecting Journalists Pro Bono Program). This report was published in October 2022.
Demand
As the traditional news industry shrinks, fewer legacy newsrooms can afford the legal help required for investigative journalism. Newer newsrooms are too small to have their own attorneys. As a result, stories that could make a difference are delayed or abandoned because journalists were unable to afford or access attorneys. Journalists feel vulnerable to attacks from those determined to use the law as a weapon to silence them.
Local news outlets, still in economic crisis, face increasing legal threats aimed at stifling their journalists. Independent journalists, small outlets, and nonprofit newsrooms — all growing elements of the news ecosystem and the types of journalists ProJourn aims to serve — may have even greater legal needs than legacy outlets, where cuts have been so severe and journalists are less likely now than before to do stories requiring legal help.
About half (54%) of the journalists that we surveyed in 2022 said their legal needs were unmet, either “frequently” (24.2%) or “occasionally” (29.5%). Of the unmet legal needs, journalists most commonly identified the need for attorneys to:
- Support their pursuit of public records (54%)
- Answer their newsgathering questions (45%)
- Provide pre-publication review (43%)
Independent journalists were the most precarious respondents. Nearly half of them said that they have frequently unmet legal needs, twice the overall rate.
Support for more pro bono help is nearly universal, backed even by newsrooms that already use paid firms and/or in-house counsels. In all, 92% of respondents responded “Yes” to the question, “Do you support an increase in pro bono legal help for journalists?”
Supply
Pro bono providers from the nonprofit sector — such as law school clinics, the
Reporters Committee for Freedom of the Press, and many others — have
grown significantly in the past decade. These sources of free legal support have
made a tremendous difference to newsrooms (and the communities they serve) and have won
precedent-setting cases. These groups, however, often have more work than
they can handle.
Experienced media attorneys at law firms also offer significant pro bono support,
but the pool of attorneys is limited — relatively few U.S. attorneys are experienced
in newsgathering law — and opportunities are not coordinated across the sector.
At the same time, in-house legal teams at major companies have grown in size
and have a greater capacity to provide pro bono legal services, but no national
effort exists to match those opportunities with journalists’ needs.
The nonprofit Media Law Resource Center (MLRC) has the most comprehensive information regarding media attorneys in the private sector with experience representing journalists. MLRC’s 3,800 U.S. members are primarily attorneys representing 140 media organizations and 180 law firms. If the MLRC’s 3,800 members were all attorneys for newsgatherers, they would represent less than 0.3% of the ABA’s total of 1.33 million U.S. attorneys. It seems safe to estimate that no more than 1% of America’s lawyers do work for journalists or media companies.
There are issues with gathering data. Attorneys practicing newsgathering law fall under broader categories, such as media law, First Amendment law, and litigation. They are usually spread out across different practices at law firms. They may work full-time on newsgathering law, or they might handle just a single matter a year.
If identified, newsgathering attorneys could be surveyed, with questions such as “How much pro bono work do you do, and what are the barriers to doing more?” And, “Are there constraints within firms, such as policies or workloads that stifle pro bono assistance?” And “Would helping journalists cause conflicts with existing clients, such as a government agency?”
Hours spent on pro bono help for journalists, as well as their number and type, can be tracked nationally, no matter what an attorney’s job category. But they aren’t. In a 2018 American Bar Association report, the ABA surveyed 47,000 attorneys in 24 states about their pro bono work. Clients ranged from students to “victims of consumer fraud.” Journalists were not listed. Case types included civil rights but not freedom of information or expression.
Leading firms that do provide pro bono support to newsgatherers logged nearly 11,000 hours in 2021, but there is no systematic way of tracking or growing that help beyond the leading firms.
Nonprofits and law school clinics, too, provide help with newsgathering law, often in their specific states or regions (handling up to 500 matters for journalists annually). But the nonprofits say they often have more work than they can handle. The bottom line is that nationwide, the demand is high and the supply is limited. This is the journalism legal gap that can put local reporters at a tremendous disadvantage.
On the whole, the supply of, and demand for, pro bono support in newsgathering law can be seen as a story of field-building, a topic well documented in the philanthropic community.
One key component of field-building is including and supporting existing projects and groups such as those mentioned above. Together, they provide knowledge, court victories, new jobs, and education for the next generation of attorneys, journalists, and the public. Other components of field-building include welcoming new ideas and creating common goals and standards. All of these create conditions that help increase the number of pro bono attorneys helping journalists.
ProJourn: A New Model
ProJourn’s pilot proved that its unique “two-in-a-box” model works, providing an important service to an underserved constituency. Corporate attorneys interested in providing pro bono help to local journalists and newsrooms learned to be effective advocates by partnering on matters with seasoned media attorneys. This success opens up a new way to provide and expand pro bono services to the journalism community.
ProJourn demonstrated that, with help, even the smallest newsrooms and neediest journalists can do major stories benefitting entire communities, and, at times reaching far beyond that. At the same time, ProJourn offers major law firms and companies the opportunity to stand up for journalism during this time of crisis for local news and democracy.
