Warrior for the First Amendment
02-10-2020 05:11pm

Warrior for the First Amendment

A lawyer at NPR and journalism professor at American University, Ashley Messenger talks about protecting free speech in a digital world

Ashley Messenger didn’t plan on being a First Amendment lawyer. “It was an accident,” says Messenger, who is a senior associate general counsel with National Public Radio in Washington. But 20 years into her career, she’s worked with some of the most high-profile organizations in media and has watched how the industry and its environment has evolved along with shifts in technology and society.

An adjunct professor of journalism at American University, she is also a faculty member of the Poynter-Koch Media and Journalism Fellowship, a yearlong program designed to encourage journalists and strengthen their knowledge of First Amendment law and the foundations of a free press. As an in-house counsel for NPR, Ashley advises on issues such as reporting and news dissemination. A native of Massachusetts, she holds a law degree from Pepperdine University and began her career in entertainment law in Los Angeles. We spoke with her recently about her career, her students, and the news and media climate.

How did you get into media law?

I was interested in copyright law and possibly entertainment law. But I found that I actually didn’t enjoy that kind of work. It’s very much about who is making the most money and who’s getting what percentage of the profit, and I wanted to do something that was a little more philosophical and based in principles. I was very interested in the First Amendment and libel issues, but I didn’t know that media law existed as a field.

So, I moved back to New Mexico from Los Angeles, where I’d been working, and I met this guy who turned out to be one of the founders of The Onion, Chris Johnson. He had sold The Onion after graduating from the University of Wisconsin and moved to New Mexico and started an alt weekly. He was having some trademark issues, and we started talking. Eventually, he offered me a job working for his newspaper. It was a great experience because I helped them with legal issues, but I also wrote stories and worked on business matters.

The other thing I did during this time was host a talk radio show. Working at the newspaper and hosting that show gave me a lot of understanding of how content gets created and where the pitfalls are, and it helped me develop an interest in helping other reporters. But you know, when people ask, how did you get into it? The honest answer is that it just happened. I didn’t plan it out this way.

You’ve probably seen a lot change over your career.

I think media law issues go through phases. There are certain claims that become trendy for a while and then dissipate, or evolving technologies create a spate of lawsuits and then people figure out how it’s all going to work, and those lawsuits go away. Obviously, over the last 20 years technology has changed rapidly and there have been a lot of issues around how to deal with digital technologies. It’s going to be an issue for some time, and lawyers will have to think about how to structure arrangements that will be consistent with the law and keep everyone happy. In recent years, there’s been a lot more interest in suing media companies for libel. It’ll last for a while as all trends do, and then it’ll probably disappear because people will sort out where the boundaries are, what is acceptable and what isn’t.

Tell us about the work you’re doing with your students.

I cover some of the basic things you need to know to be a working journalist, including the types of things you can be sued for, such as libel and privacy. We talk about basic copyright issues and an overview of the First Amendment: what it is, what it protects, and what it doesn’t protect. That last part is very important because a lot of people assume that the Constitution protects anything you do as a journalist. That’s not necessarily the case. The protections are very broad, but they’re not limitless.

What do your students see as their challenges now?

I do think people come into the program with the intent of being a journalist in some form or another. They want to communicate facts and ideas. But as you know, the business model has changed, and people are trying to figure out how to make the economics of journalism work a little better. But I also think people go into journalism because they have a passion, not because they want to get rich.

What are some of the things your students are wondering about right now?

One thing they struggle with is not really even a legal issue; it’s a balance between the legal and ethical issues around what’s appropriate to say regarding offensive speech. And honestly, the law is pretty irrelevant. It’s a question of ethics: what would you feel is appropriate to say, and from a publishing standpoint, to repeat it when other people say offensive things? Is it appropriate to repeat it? What is acceptable speech? And this cultural moment we’re having of “cancel culture,” when people can be shut down or publicly shamed for saying something that someone considered unacceptable — I do think my students struggle with it. And I think they struggle with it because the culture is struggling with it. I’m not sure that anybody has come up with great answers for how to resolve differences in a public forum.

And the noise has gotten louder over the past decade because of social media and other factors at play.

There’s been a change in attitude in which expertise is no longer regarded as expertise. It’s just another viewpoint. And it’s unfortunate, because there is such a thing as expertise. If I’m going to have heart surgery, I’m going to find the best, most well-trained, most experienced surgeon I can.

But there are some other factors at play, too. There’s not a lot of patience for the idea that sometimes there are just problems, and some are hard and intractable and not easy to resolve. There’s not one policy that will fix everything. But that takes patience and willingness to endure difficulties for an extended period of time while issues get resolved. People don’t like that.

It seems pretty easy for journalists to get blamed for these problems now, since they’re the ones reporting on them.

The “blame the messenger” thing has been a problem throughout human history. One thing I see now — and this isn’t particular to NPR — is that people don’t like a news story because it doesn’t tell all the facts. But news stories are meant to be incremental. They’re meant to be pockets of information and not complete treatises on an entire subject. And I think this goes back to the issue of people being OK with reality the way it is. Sometimes we have problems, and sometimes we can only give you a bit of information. We all have to recognize that this is a sliver of the whole story, and more will be coming. There are always more stories to be told.

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