Sunshine Law could allow for backdoor censorship of publicly funded journalism

With a decline in the independent, local newspaper industry as a whole, publicly-funded institutions have attempted to fill in the many gaps that have been left behind. Journalism schools, many of which are state government operated, have played a large role in this process. 

“It’s great for communities because they get local news that they otherwise wouldn’t get,” said Kathy Kiely, the Lee Hills Chair in Free-Press Studies and Professor at the University of Missouri School of Journalism. “This is an important model going forward into the future for providing communities with information they need.”

However, the relationship between journalism and publicly funded institutions gets complicated in conversation with public record laws, along with journalists’ ability to protect their sources. This became evident last September when Missouri Attorney General Eric Schmitt’s office requested emails from the Columbia Missourian and two Missouri University journalism school professors by way of the Sunshine Law. The Sunshine Law is meant to foster transparency by requiring public institutions to disclose their activities to the public. 

(Photo by Attorney General Eric Schmitt via Flickr)

The request was in regard to the school’s collaboration with PolitiFact, a nonpartisan newsroom that fact-checks statements by public officials. The school worked with PolitiFact to make sure that professors were trained in their fact-checking methodology while also training students in the PolitiFact fact-checking rubric.

Emails in the private journalism sector are typically protected by shield laws — laws that protect reporters’ privilege and allow reporters to refuse to reveal information about their sources. However, with the Missourian being affiliated with the University of Missouri, a state-funded institution, there is no such protection. The journalism school is cooperating with the request.   

“Journalists who work in [publicly operated institutions] are now going to be subjected to fishing expeditions from public officials who do not like what they’re reporting,” Kiely said. “That is a form of censorship that has a chilling effect on news organizations.” 

Tim O’Neil, a retired Saint Louis Post-Dispatch reporter and University of Missouri ‘74 alum, said he wished the school pushed back a bit more on the principle of Schmitt’s request. 

“It was a stunt by Schmitt  to get a few headlines,” O’Neil said. “The larger implication is that if professors have to give up their emails over fact-checking exercises, then what’s to keep a mayor, or a Senate candidate from demanding the emails of a reporter who’s writing an investigative story. If the university rolls meekly on this, then what does the journalism school have in terms of internal workings?”

Schmitt’s office has not specified what it is that they’re after with their request, just that they want to better understand how the Missourian checking works. 

“That raises the next question,” Kiely said. “The Attorney General can tell us how to do our jobs? I mean, do we really want to live in a country where the people in power get to tell journalists what they should and shouldn’t be covering?” 

Mike Hiestan, a student legal counsel at the Student Press Law Center, said that with public funding entering the journalism sector, there’s a whole ecosystem of news media that needs up-to-date legislation. 

“The citizens are supposed to own the government, and the government works for us,” Hiestan said. “It gives us the owners the ability to keep tabs on what it is our government officials are up to. People like Schmidt are really taking advantage of openness in these laws that is allowing them to go after information that they have no business seeing.” 

Brian Munoz, a Southern Illinois University alum and freelance journalist, said groups like the Student Press Law Center are vital to help news organizations attached to public institutions keep their editorial independence. He said the Sunshine Law should be working in favor of journalists and not against them. 

At SIU, the Sunshine Law did work in Munoz’s favor. Munoz worked at the student publication, the Daily Egyptian, during his time there and filed many FOIA requests as a part of his investigative reporting. 

“Public records are a valuable resource to hold people accountable,” Munoz said. “State agencies and those that receive taxpayer dollars in order to keep them accountable and transparent. Right now, where it becomes a little bit of a sticky situation is when it’s on the flip side with a news organization that is affiliated with a public institution.”

Without Shield Law protections, journalists can’t guarantee their sources the protection they need to speak with anonymity.

“Courts have found that the public good served by journalism is important enough that it should be provided some protection,” Kiely said. “Journalism is in many ways a last resort for people who are whistleblowers, people who are in an institution that’s corrupt.  They’re not going to talk and corruption festers. For years, this has been a precedent, and that’s the reason for it. If you take away that protection, it makes it more difficult for journalists to do their jobs.” 

Hiestan said that Schmitt’s email request, along with the larger story of the vulnerability of publicly funded journalism institutions, sets a dangerous precedent for the future. 

“To find out what stories student editors are covering, what the local NPR affiliate is covering, and  who they’ve talked to — that’s abusing Freedom of Information laws, ” Hiestan said. “They were never intended to be used that way.” 

Nonprofit news outlets bolster statehouse coverage across the country, including in Illinois

Full time statehouse reporters are now a luxury for many news organizations. 

Brenden Moore, who reports on state politics and government for Lee Enterprises, said It’s impossible to talk about the decline of full time statehouse reporters without talking about the decline of the newspaper industry as a whole.  

“If you’re struggling to cover city council, school board, and cops in courts in your own community then the statehouse beat takes a back seat,” Moore said. “It’s not even really a thought. Why would you spend resources to have somebody in Springfield, [Illinois] when you need them covering your community?” 

(Photo by Randy von Liski via Flickr)

While there has been a decline in full time statehouse reporting roles, nonprofit journalism organizations have provided a heighthed amount of part time roles for the beat.

“Nonprofit organizations have come into statehouse reporting with a lot of force,” said Katerina Eva Matsa, associate director of Pew Research and co-author of a recent Pew study on statehouse reporting. “The numbers have almost quadrupled since 2014.”

Full time and part time nonprofit reporters constitute 20% of the statehouse corps. There are 353 statehouse reporters who work for nonprofits, up from 92 in 2014. This phenomenon largely has to do with the decline of the newspaper industry, which significantly spiked between 2014 and 2022. However, newspapers still account for the largest portion of statehouse reporters nationally — making up 25% of the statehouse corps. 

Last month, the Pew Research Center published a study that found the total number of U.S. statehouse reporters has increased by 11% since 2014, which was the last time the study was conducted

Although, within that number, there are significantly fewer full time reporters. Pew identified 1,761 statehouse reporters in their most recent study with just under half (48%) being full time. The study defined full time reporters as those who “are assigned to the state’s capitol building to cover the news there on a full-time basis – either year-round or during the legislative session – reporting on everything from legislative activity to the governor’s office to individual state agencies.” 

The study further highlights how being “fully devoted to this coverage often provides the greatest opportunity to engage with the statehouse and produce stories that go beyond the basic contours of daily news.”

Jason Piscia, the director of the Public Affairs Reporting Program at University of Illinois Springfield, gathered industry colleagues to discuss these findings in a Zoom panel titled, The State of Statehouse Reporting, on May 4. Among these colleagues were Katerina Eva Matsa, associate director of Pew Research and co-author of the study, Brenden Moore, state politics and government reporter for Lee Enterprises, Jerry Nowicki, statehouse bureau chief for Capitol News Illinois and Hannah Meisel, the state government and politics editor for NPR Illinois.  

“I’m alway very excited and thankful when our research gets into these types of conversations,” Matsa said. “It’s important to think about Americans and how they get their news and how it affects their lives. What happens on the state and local level is important for helping Americans make decisions that actually have an effect on their daily lives. That was our goal and our purpose and we are going to continue looking at local news [through our research].”  

With a limited number of full time statehouse reporters on a national scale, which has been generated by significant layoffs in the newspaper industry, there are no longer sufficient amounts of veteran journalists who young reporters can look up to for guidance when it comes to the ins and outs of the beat. 

“We have lost so much institutional knowledge,” said Hannah Meisel, the state government and politics editor for NPR Illinois. “Along with institutional knowledge, we’ve also lost a lot of folks to look up to and model our journalism and our approach to statehouse reporting. If you don’t have model journalists and model editors with institutional knowledge then the guardrails are off.”

On top of this loss of institutional knowledge in statehouse reporting, there has been a loss of access to state politicians due to COVID-19. Throughout the study’s in-depth interviews with reporters and academics, Eva Matsa said COVID-19 flooded all of the conversations. 

Jerry Nowicki, the statehouse bureau chief for Capitol News Illinois, said there’s always something to learn being in-person on session days, a form of engagement that has been limited by COVID-19. 

“In terms of the access at the Capitol, it’s absolutely gotten worse since COVID-19,” Nowicki said. “There’s a lot of locked doors in the senate. Sometimes the elevators are off. You can’t even get up to the areas where lawmakers mingle and where you might learn something that you won’t print but it will help inform the type of stories that you print.”

Meisel agreed and said this lack of access prevents reporters from getting to the meat of legislation in their stories and prevents them from providing substantive information. 

“There’s an old cliche that says Statehouses are the laboratories of democracies,” Meisel said. “If we don’t have adequate coverage of that then we have a government that is unaccountable.”

Editor’s Note: GJR has published numerous stories about statehouse reporting, along with the importance of small organizations’ roles to provide coverage. In this story, GJR detailed the nonprofit, Capitol News Illinois, an initiative of the Illinois Press Foundation. The organization provides free statehouse coverage to its members with full time staff members at the bureau. 

Nick Karpinski is a writer and M.A. student at Southern Illinois University Carbondale, where he studies topics surrounding media ecology and expanded media environments.