an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
It seems that investigative journalism these days is too difficult and expensive to be left to investigative journalists.
The New York Times reports on the ACLU's successful campaign to use the Freedom of Information Act to get the government to disclose documents about the government's detention and interrogation policies. The ACLU has received hundreds of pages of documents, which it has then released to the public on the Internet, becoming the basis of dozens of stories by journalists.
The torture story is one of the most important examples of American journalism in the last decade. But it was not revealed through traditional investigative reporting alone. Instead, a non-profit organization-- the ACLU--worked in coordination with journalistic efforts to mount a long-term litigation campaign to gain access to important government information. The ACLU then provided the information to the general public on the Internet, and journalists wrote stories based on the revelations, which led to further ACLU requests and more litigation, producing further revelations, and so on.
It is unlikely that many newspapers today--strapped as they are for cash--would have been able to mount a litigation campaign of many years as expensive or as effective as the ACLU did in order to obtain information for a story.
This story exemplifies the ways that journalism is changing in an age of Internet. Without civil society organizations devoted to uncovering the truth, valuable information would not have been revealed. And by placing the information on the Internet, not only journalists, but the general public had access to the raw materials for these stories.
The ACLU, which is not a journalistic organization, played such a central role in journalism for an important reason: Journalists at major newspapers do less and less investigative journalism these days because major newspapers cannot afford it. Equally important, newspapers cannot afford the litigation costs necessary to produce stories like the ones featured in this New York Times article.
At the same time, the use of the Internet as a publishing device routed around traditional journalistic venues for publication and also assisted journalists everywhere by giving them the raw materials to write stories.
It is crucial not to draw a simple but wrong conclusion from this. None of this makes traditional journalism, or newspapers, obsolete in their function of promoting information necessary for democracy. Journalists played an important role at all stages of news production in these stories: "[t]he A.C.L.U. lawyers note that their effort has repeatedly fed off the work of investigative reporters who have identified cases of abuse, legal opinions and other documents that the organization then pursued in court." At the same time, it is clear that without a sustained litigation campaign, which traditional news organizations could not afford, these stories would not have come to light. It also seems clear that journalists are less important to the production of these stories than they were in the past, although they are still very important for analyzing the information received, providing contacts, and suggesting leads for further FOIA inquiries.
Investigative journalism is necessary to the health of democracy; without information about government's activities, citizens cannot know what their government is doing in their name and cannot hold government officials accountable. Because information about government corruption, abuse, and misbehavior is a classic public good, markets alone will not produce enough of it; and government, the traditional generator of many public goods, has little incentives to produce this information without pressure from outside the government.
When newspapers enjoyed monopoly profits due to advertising revenues, they had professional interests and sufficient resources to produce this public good. As newspapers lost their advertising monopoly, and as newspapers were purchased by corporations who valued profits above all, investigative journalism has suffered.
The key point is not that investigative journalism is going away, but that it is changing, and this ACLU story shows us why. In the future investigative journalism will have to rely on organizations outside the traditional mass media in order to produce the valuable public good of access to government information. Public interest law firms, of which the ACLU is one, will increasingly be important players by providing raw materials for professional investigative journalism, while the Internet will provide a publishing platform for their work outside of newspapers and traditional media.
News media, in turn can link to, write about, and analyze these materials for the general public. But even here, traditional media organizations will often be assisted by other non-journalists-- for example, experts who blog and whose stories are read both by journalists and by the public, and non-expert bloggers who promote these stories in the blogosphere to gain the attention of both the public and the mainstream media.
We should not assume that these changes make traditional journalism obsolete: The ACLU plus bloggers would not necessarily be sufficient to place these stories before the public. The combination of the ACLU, plus the blogosphere plus traditional journalists is necessary. What we are seeing, in other words, is not the end of journalism but a new media ecology in which different actors collectively produce the news, analyze it, and deliver it (repeatedly through different venues) to the public.
In sum, investigative journalism by traditional news media organizations is not going away; rather it will become only one part of a larger ecology of news production in which other non-profit organizations play an increasingly important role in producing, analyzing, and publishing information for the public.