Monday, February 12, 2007
COMMENTARY
Sacramento Bee’s new online pub experiments with time-shifting to boost value of the paper’s political reporting
by Peter Scheer
A few weeks ago I wrote in this space that newspapers, in their rush to generate ad revenues on the internet, had made a strategic mistake in giving away their news content, free, online. I suggested that, to reestablish the value of their content, metro papers should consider embargoing their news articles from the free Internet for a brief period--say, 24 hours--after they are made available to paying customers.
An embargo, by starving the web of its only free sources of comparatively trustworthy and credible news in real-time, would, I argued, demonstrate the true value of that information. Without newspaper and wire service stories, internet portals and news aggregators would have little to offer except out-of-date articles from mainstream media and blogosphere musings on last week’s news.
Now comes word that McClatchy Company’s flagship daily, the Sacramento Bee, has decided to package its best political news and commentary into a new subscription-only online product, “Capitol Alert,” that will be made available to readers the evening before the same articles are posted to the Bee’s free internet site and delivered to subscribers to the print edition.
Like my proposed embargo--only smarter--the Bee’s experiment is an attempt to recapture lost value in its editorial content by shifting the timing of its availability to favor readers willing not only to pay, but to pay a premium, in order to get the information before the rest of the world. Since this approach does not degrade the Bee’s primary service and the new product entails minimal incremental cost, Capitol Alert can be successful at a very low level of subscriptions.
This approach may not work for most newspapers. The Bee is unusual in having a segment of its readers who are intensely interested in a segment of its editorial content. Still, Capitol Alert is worth watching in an industry that doesn’t have an abundance of good options.
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Thursday, February 08, 2007
PRESS RELEASE: Yahoo!’s Neil Budde Joins CFAC Board
PRESS RELEASE
For Immediate Release
Neil Budde, the head of news operations for internet portal Yahoo!, is the latest addition to the board of directors of the California First Amendment Coalition (CFAC), the nonprofit, public interest organization announced today.
Budde, who joined Yahoo! In 2004, is Vice President, Editor in Chief for Yahoo! News, Finance and Sports. He works in Yahoo!’s Santa Monica offices, where the company’s news operations are based.
“Neil brings to CFAC a range and depth of internet-based news and media expertise that are truly unexcelled,” said CFAC executive director Peter Scheer. “He was present at the creation of internet adaptations of mainstream news, and he now oversees the internet’s most popular, most-viewed news pages,” Scheer said.
Following a print media career as reporter and editor with The Courier-Journal in Louisville, Ky., USA Today and The Richmond Times-Dispatch, Budde led the Wall Street Journal team that created that
company’s first digital offerings in the early 1990s, culminating in the 1996 launch on the internet of the Wall Street Journal onlineedition.
The Wall Street Journal’s web site is, and always has been, a paid subscription service--in contrast to the mostly free online editions of nearly all other large, daily newspapers. The Journal online claims to have over 800,000 paid subscribers.
CFAC in recent months has expanded its board. In addition to Budde, new board members include Ginger Moorhouse, publisher and board chairman of the Bakersfield Californian, and Dan Gillmor, internet journalism pioneer and founder of the Center for Citizen Media.
Other new CFAC board members are Stephen Barnett, First Amendment scholar and professor emeritus at Boalt Hall, David E. Lee, Executive Director of the Chinese American Voters Education Committee, and Dan Day, Managing Editor for the Modesto Bee.
CFAC, with offices in San Rafael CA, is dedicated to advancing free speech and open-government rights. A membership organization, CFAC’s activities include educational and informational programs, a Legal Hotline service, participation in “test case” litigation to enhance First Amendment rights for the largest number of citizens, and legislative oversight of bills affecting free speech.
CFAC’s members are newspapers and other news organizations, civic organizations, academics, freelance journalists, bloggers, community activists--and ordinary individuals seeking help in asserting rights of citizenship. CFAC’s web site is at http://www.cfac.org.
CONTACTS:
Paul C. Gullixson
CFAC President
Phone: (707) 521-5282
Peter Scheer
CFAC Executive Director
Phone: (415) 460-5060
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Friday, January 19, 2007
COMMENTARY
Public officials’ love of secrecy is no match for the public’s love to watch government decision-making up close. In California, democratic voyeurism prevails.
By Peter Scheer
One of California’s more remarkable political inventions is the requirement that lawmakers do their lawmaking in the open for all to see. Call it the people’s entitlement to democratic voyeurism: Members of city councils, county supervisors and school boards (among other local legislative bodies) must not only vote in public, they must confine virtually all debate, horse-trading and other deliberations to a public proceeding where voters get to watch.
The voyeurism entitlement is guaranteed by California’s Brown Act. Although taken for granted by voters, this right is a considerable—no, a radical--departure from traditional notions of American governance. After all, the Constitutional Convention, the mother of all American legislative proceedings held in Philadelphia in 1787, was conducted in secrecy. With the press excluded, the public learned only as much about the founding fathers’ deliberations as they wanted the public to know.
Consider also the U.S. Congress, where the public aspects of contemporary legislating consist, for the most part, of speeches to empty chambers, scripted “debates” to create phony legislative history, and votes that reflect deals previously struck behind closed doors. Despite its reputation for high-minded debate on great issues of the day, the modern Congress is more about secret earmarks and mutual back-scratching than it is about deliberations on matters of public interest.
California’s insistence on open decision-making is so contrary to politicians’ normal instincts that many local officials can’t quite believe the requirement applies to them. That’s why CFAC, together with the San Bernardino Sun, recently sued the chair of San Bernardino County’s board of supervisors.
Bill Postmus (now the county assessor) denied requests under the Public Records Act for emails between him and other supervisors, as well as his calendar of official meetings and appointments. Postmus says he doesn’t have to disclose records that might reflect his and his colleagues’ “deliberative process.” In this he relies on a 1991 Supreme Court decision, Times Mirror v. Superior Court, which affirmed former Governor George Deukmejian’s refusal to turn over his appointments calendar to the Los Angeles Times.
To be sure, the Court in the Times Mirror case ruled that the Governor’s “deliberative process” was outside the reach of the Public Records Act, and that the Governor enjoyed a privilege--the “deliberative process privilege"--to withhold records revealing his decision-making. But supervisor Postmus, his political ambitions notwithstanding, ain’t the Governor.
California’s chief executive, as the embodiment of state sovereignty, is entitled to a degree of deference that does not apply to lesser government officials. Even more important, the Governor’s office is not covered by the Brown Act (or its equivalent for state agencies, the Bagley-Keene Act) and its guarantee of the voyeurism entitlement: the public’s right to watch all the deliberations behind government decision-making.
The “deliberative process privilege” that the Supreme Court read into the Public Records Act has no relevance to a government entity, like a county board of supervisors, that is subject to the Brown Act. The Legislature could not have intended, as to the same government entities, to expose their deliberative process in the Brown Act, while simultaneously hiding their deliberative process in the Public Records Act. The Legislature may be dysfunctional, but it’s not schizophrenic.
The deliberative process privilege, so popular among government officials who prefer doing the public’s business in secret, is available only to those state and local government entities that are not regulated by the Brown Act. (And even those entities may no longer be able to cite the privilege due to passage of Prop 59 in 2004—but that’s a separate issue.) Entities that are regulated by the Brown Act already must abide by the voyeurism entitlement, conducting all their deliberations in the open. Since their deliberative process already is--or should be--public, requests for records showing their deliberative process may not be denied on those grounds.
Secrecy corrupts; absolute secrecy corrupts absolutely. Local government officials are always searching for a legal theory that will effectively exempt them from open-government requirements. Many, like San Bernardino’s Postmus, thought they had found their silver bullet against public record requests in the deliberative process privilege.
Wrong!
Peter Scheer, a lawyer and journalist, is executive director of CFAC.
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Monday, December 04, 2006
Commentary
An open letter to judges in the BALCO appeal:
To learn the identity of the reporters’ confidential source, just ask their lawyer
By Peter Scheer
Honorable Judges of the US Court
of Appeals for the Ninth Circuit
Dear Sirs/Madams:
A three-judge panel of this Court will soon consider appeals by the San Francisco Chronicle and two of its reporters from judgments of contempt for refusing to reveal their confidential source for stories about steroid use by professional athletes. Unless you reverse the decision of the District Court, the reporters will go to jail for up to 18 months and the Chronicle will start paying hefty fines it can scarcely afford.
The federal government is obviously determined to find out who leaked to the reporters, Mark Fainaru-Wada and Lance Williams, the testimony of Barry Bonds and other witnesses before the secret grand jury. Fortunately, the answer can be revealed on February 12, when all the lawyers—prosecutors and defense counsel—will be present for an oral argument before you, the judges of the Court of Appeals.
All you have to do is turn to Jonathan Donnellan, the lawyer for the newspaper and the reporters, and order him to tell the Court the name of the confidential source. Donnellan certainly knows who the source is; his clients gave him that information so he could represent them effectively. As a member of the bar, he won’t be so keen on being held in contempt. And no matter how much the Hearst Corporation (owner of the Chronicle) is paying Donnellan, it’s not enough for him to go to jail on his clients’ behalf.
But of course, you won’t order the lawyer to identify the newspaper’s confidential source—and it would never even occur to a judge to ask that question of a lawyer—for the simple reason that the lawyer’s confidential communications with his clients are subject to the attorney-client privilege.
As judges, you understand intuitively that the attorney-client privilege, although it deprives the government of relevant evidence, is nonetheless necessary to encourage clients to confide in their lawyers. Similar privileges, recognized in nearly all states and in the federal courts, protect the confidentiality of a patient’s comments to a psychotherapist, as well as confessions given to a priest, minister or rabbi.
Viewed in this context, there’s nothing radical about the idea of a legal privilege to protect journalists’ confidential sources. The controversy credited with establishing American principles of freedom of the press—the 1735 prosecution of publisher Peter Zenger on charges of seditious libel—arose out of Zenger’s refusal to identify the source of material appearing in his newspaper that was critical of New York’s royal government. Today, as in the 18th Century, reporters must be able to credibly promise confidentiality to an otherwise reluctant source in order to publish an article that reveals information of great public interest.
Leaks that violate grand jury secrecy, while they understandably anger district judges presiding over the grand jury, are no exception: Bob Woodward and Carl Bernstein’s earliest Watergate stories were based on illegal leaks from the federal grand jury convened to investigate the Watergate break-in.
To be sure, some journalists over-indulge sources’ requests for anonymity, or they mistake the sensational and prurient for news of genuine public interest. But the availability of a privilege for confidential sources can’t depend on the relative merits of a given news article.
A privilege for sources, like the privilege for attorney-client confidences, exists not for this case but for the next one. Sources for future investigative news stories need to know, with some degree of certainty, that their identity will remain secret. The requisite certainty won’t exist if enforcement of a reporter’s promise of confidentiality will be decided by an ad hoc balancing of the government’s interest against the press’ interest.
The analogy of the attorney-client privilege is important for still another reason. Reporters, when they choose to honor a secrecy pledge to a source in the face of a court order demanding the opposite, are often accused of placing themselves “above the law.” Judges, in particular, take offense at this seeming disrespect for judicial process.
When deciding this case, you would do well to consider how, in your former lives as lawyers, you might have reacted to an order to disclose a client’s incriminating statement—in violation of the attorney-client privilege. Would you have complied or would you have respectfully refused, putting yourself at risk of jail, in order to protect your client? With just a little imagination, the judges of this Court should be able to appreciate the harsh dilemma in which reporters Fainaru-Wada and Williams found themselves in the District Court.
The US Supreme Court will have the final word on the crucial issue of protection for journalists’ confidential sources. Despite numerous appeals in the last two years, the high Court has yet to give a hearing to the argument for a federal “common law” privilege analogous to protections for communications between attorney and client or therapist and patient.
A ruling by this Court in favor of the reporters and the Chronicle would set the stage for an historic Supreme Court decision. At last, a case on which the Ninth Circuit Court of Appeals and the Supreme Court should, I hope, be able to agree.
Peter Scheer, a journalist and lawyer, is executive director of CFAC.
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Sunday, November 19, 2006
TALK BACK
Digital Fishwrap Reconsidered
By Peter Scheer
In a recent commentary published here and on the Op-Ed page of the San Francisco Chronicle ("What if online portals had nothing but ‘digital fish wrap’?”), I argued that large metropolitan newspapers, in order to enhance the value of their editorial content on the internet, should consider delaying the free release of their articles online.
Collective action to deprive the internet, temporarily, of free and timely news—leaving Yahoo, Google, MSN and other portals with only digital fishwrap to offer their customers---would help to re-value newspapers’ content in favor of those who create it, I argued.
The commentary generated a huge response from the blogosphere, most of it (though not all) decidedly negative. Some of the more interesting responses--including a criticism by CFAC board member Dan Gillmor and a favorable comment from Freakonomics co-author Stephen Dubner--are excerpted below, with links to the complete postings.
Interestingly, Monday’s New York Times broke news of an advertising and content distribution arrangement between Yahoo and a consortium of 176 daily newspapers--including virtually all papers in the Bay Area. Financial details were not disclosed, but it appears the deal would enable the papers, which have been hemorrhaging classified advertising to online competitors, to recapture some of those revenues, while attracting more readers to their web sites from Yahoo’s expanded distribution of the papers’ content.
While this is not the collective action suggested in my commentary, it is notable that the deal reflects collective action by a large number of papers to attempt to leverage the value of their news. And it’s encouraging that Yahoo apparently sees real value in gaining enhanced access to the papers’ content, most of which is focused on local communities, not national news.
Will this work? The internet is littered with the remains of “strategic alliances” that never advanced beyond participants’ press releases. Perhaps this one will fare better.
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TALK BACK
An intriguing idea: Maintaining the value of a besieged commodity by shifting the time frame of its use.
Stephen Dubner:
Not long ago, we posted here about the supposedly desperate future of newspapers. Now here’s a S.F. Chronicle column by Peter Scheer saying the same thing I tried to say, but Scheer says it better: i.e., if the future of newspapers is so bleak, why are so many smart people rushing to buy them? (The list includes Jack Welch, David Geffen, and as of today, Hank Greenberg.)
But the most interesting point in Scheer’s article is his proposal for how newspapers can protect their value: by placing a 24-hour embargo on their original reporting, not allowing it to appear on free Internet sites until a newspaper’s paying customers have had first crack at it.
. . . We are all very spoiled, getting the world’s best news delivered to us, free and instantly. And it is very hard to make people pay for something they’re used to getting for free. (Just ask AOL; on the other hand, we pay plenty now for bottled water.) From what I know, most newspapers are moving in the opposite direction that Scheer supports. But it is a very intriguing idea, maintaining the value of a besieged commodity simply by shifting the time frame of its use.
It takes a lot of time and a lot of money to produce good reporting. Most people who consume good reporting don’t seem to know this, or care to know it. But they will certainly figure it out if the good reporting begins to disappear because media owners can no longer provide the kind of product we’ve become accustomed to getting for free. Somehow I can’t see U.S. citizens willing to support the reporting tax that the U.K. levies to support the BBC. Compared to that tax, a 24-hour Internet embargo looks mighty cheap.
(The writer is co-author of the best seller, Freakonomics-PES.)
http://www.freakonomics.com/blog/2006/11/13/another-way-for-newspapers-to-not-die/#comments
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A cure worse than the disease
Dan Gillmor:
Peter Scheer . . . asks, “What if online portals had nothing but ‘digital fish wrap’?” He writes:
“Newspapers and wire services need to figure out a way, without running afoul of antitrust laws, to agree to embargo their news content from the free Internet for a brief period — say, 24 hours — after it is made available to paying customers. The point is not to remove content from the Internet, but to delay its free release in that venue.”
I wish newspapers recognized their value and found ways to make money on it. This isn’t the way. I’m not a lawyer. But having followed some antitrust cases closely in the past, and having heard today from someone with intimate familiarity with the field, I can say this: The plan as suggested above would very likely run a huge risk of violating antitrust law. And I’d lend my moral support to the inevitable lawsuits by Google or Yahoo or whoever else filed them. (The feds, under current management, would probably see nothing wrong with this market manipulation.)
To suggest that part of the newspapers’ woes stem from competition for real-time news reminds me of how the owners of major-league sports franchises pay wildly inflated salaries to the players, and then beg the players to sign collective-bargaining agreements restricting high wages. Real capitalism does not favor idiocy at any level.
I want to save newspapers — or at least the good things they do — as much as anyone else. But creating a cartel-like system, no matter what it was called, would be a cure considerably worse than the disease, not to mention the fact that it wouldn’t work. (Note: I’m on the board of the California First Amendment Coalition.)
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Scheer’s proposal a trap
Joe Wikert:
Dan Gillmor has it right. The solution for the newspaper industry’s woes isn’t to “embargo their news content from the free Internet for a brief period – say 24 hours.”
. . . Even if the newspaper industry could band together and pull this off, what would it lead to? It probably results in a boatload of online traffic shifting from the newspaper sites to other news-oriented sites. If citizen journalism needs a spark or other event to propel it to the next level of success, this might just be it!
The typical consumer is getting more and more comfortable getting news online. If you take away one online news resource, they’ll just move on to the next one. Most people are probably getting their online news via Google anyway and Google is pretty effective at replacing one set of search results with a relevant set from another source.
Looking at it another way, this proposed “content embargo” certainly wouldn’t result in increased newspaper subscriptions. In fact, I’d cancel mine if my local paper ever adopted a policy like this.
. . .Let’s hope the newspaper industry doesn’t fall into Mr. Scheer’s trap.
Full posting is here.
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