💨 Colorado editor quits his shrinking newspaper. 'More with less is not attainable'

A look at the news behind the news in Colorado this week

Jul 16, 2021

This dude went there

When a journalist accepts a buyout or leaves a newspaper under less-than-ideal circumstances they might publish a sappy swan song about all the great work they did and how it’s just time to move on.

More time with the family and all that.

What they don’t often do is go into the unpleasant reasons why they might be leaving: corporate cutbacks, office politics, exhaustion — or worse. When they do explain the unseemly backstory, such copy doesn’t wind up in their paper’s pages, it tends to go on social media, personal blogs, or in other outlets.

This week, John Livingston, sports and outdoor editor of The Durango Herald, did something different. And to its credit — or … not? (more on that below) — his newspaper let him. He published a raw and honest accounting of the reasons behind his departure in the pages of the newspaper where he once held a “dream job.” Included are the kinds of admissions about retrenchment and downsizing that other newspapers might purposefully keep from their readers. And for plenty in the journalism business, some of Livingston’s frustrations are likely familiar.

Here are excerpts from Livingston’s column headlined “Breaking up with journalism”:

Anyone who has driven through downtown in recent months has noticed the massive renovation project underway at The Herald building that will cut the newsroom in half and create space for other businesses to lease. But the real downsizing of the newsroom has been going on for years.
Because of all the cuts, I no longer have the ability to live up to the standards I set during my early days at The [Farmington] Daily Times, standards that were only elevated when I arrived at The Herald in 2014 and was surrounded by a vibrant newsroom full of incredible journalists who opened my eyes and fostered my intense love for the profession.

Despite the kinds of newsroom cuts that have also hit other papers in Colorado, Livingston said he tried to do his best — even after a sports staff of three was whittled down to one. He took on increased duties and worked on his days off. Doing so became “a burden on friends and family each time I broke out the laptop to write another story or conduct another interview.”

Colorado’s Neil Gorsuch and defamation law in the digital age

In college, I didn’t believe I’d live to see a day when pot was legal. Now I own stock in cannabis companies — and a firm called Grasslands helps subsidize this newsletter. Ah, to relish when you’re wrong. Good times.

So feel free to take this prediction with a strain of sativa, but I wonder if I’ll actually see a day in my lifetime when the U.S. Supreme Court revisits the landmark libel ruling New York Times v. Sullivan. And, like in the cannabis case, if it happens we might have Colorado to blame and/or thank.

Since 1964, the “Sullivan rule” and rulings stemming from it have made it hard for those who bring defamation lawsuits to win them in court. The rule requires a public official, a public figure — and those who voluntarily or even involuntarily get involved in a public controversy — to show someone made a false allegation with “actual malice,” knowing it was false or with “reckless disregard” that it wasn’t true if they want to collect damages in court. That has made for few jury trials for libel in U.S. courts, and even fewer resulting in favor of those who bring defamation suits.

Earlier this month, U.S. Supreme Court Justice Neil Gorsuch of Colorado penned a dissent in a case in which he suggested the nation’s highest court might take another look at the pivotal Civil Rights-era press ruling. (Justice Clarence Thomas in his own dissent indicated he’d also revisit the case; he did so once before in 2019.)

The move touched off a flurry of commentary among journalists and media lawyers.

Writing in The Washington Post, Samantha Barbas, a law professor with a forthcoming book on the history of the Sullivan case, warned “A major Supreme Court First Amendment decision could be at risk.” Defamation “was considered a well-settled area of law,” wrote Jaden Edison in Poynter. “Then came social media.”

Writing in Bloomberg, law professor Noah Feldman said Gorsuch’s critique of Sullivan “should be taken seriously.”

What Gorsuch actually wrote in his dissent made for a rather interesting read for this non-lawyer journalist. He argues, as you might expect, that 1964 was in many ways a different world when it comes to publishing. He also suggests the economic troubles that have battered news organizations in recent years have even more drastically altered the playing field. As that happens, click-hungry online media proliferate and misinformation spreads.

From the Gorsuch dissent:

It’s hard not to wonder what these changes mean for the law. In 1964, the Court may have seen the actual malice standard as necessary “to ensure that dissenting or critical voices are not crowded out of public debate.” … But if that justification had force in a world with comparatively few platforms for speech, it’s less obvious what force it has in a world in which everyone carries a soapbox in their hands.

In 1964, major news publishers could afford safeguards for accuracy, too, he argues, and correctly notes that “fact-checking, and editorial oversight is disappearing.”

He goes on to cite statistics showing a declining number of libel jury trials involving publications and a minuscule number of verdicts that favor those who sue. “What started in 1964 with a decision to tolerate the occasional falsehood to ensure robust reporting by a comparative handful of print and broadcast outlets,” he writes, “has evolved into an ironclad subsidy for the publication of falsehoods by means and on a scale previously unimaginable.”

I definitely raised an eyebrow at this passage:

The bottom line? It seems that publishing without investigation, fact-checking, or editing has become the optimal legal strategy. … under the actual malice regime as it has evolved, “ignorance is bliss.”

That certainly isn’t the kind of slogan any self-respecting news organization would fly on its masthead, but it might describe some of the bad-acting conspiracy sites crowding them out.

Other parts of his dissent deal with subsequent rulings that flowed from the Sullivan rule that seem likely to me to garner more sympathy among the masses than the 1964 Sullivan case itself. “Now,” Gorsuch writes for instance, “private citizens can become ‘public figures’ on social media overnight. Individuals can be deemed ‘famous’ because of their notoriety in certain channels of our now-highly segmented media even as they remain unknown in most.” (The High Court’s ruling that people can involuntarily become public figures by being drawn into public controversy came out of a case called Gertz v. Robert Welch Inc. a decade after Sullivan.)

In 2017, when former Republican President Donald Trump appointed Gorsuch to the High Court, the Reporters Committee for Freedom of the Press evaluated his previous press rulings during his time as a judge for the U.S. Court of Appeals for the Tenth Circuit. While the group found he didn’t have an extensive history deciding cases involving free speech and free press, they found some that touched on them.

From the RCFP:

His decisions in libel and invasion of privacy cases show a willingness to uphold protections for speech rights against tort claims even in controversial cases, such as when a television station publicized the names of undercover police officers in a story involving accusations of sexual assault, or when another television station showed a photo of the perpetrator in a sexual assault video. Gorsuch also wrote an opinion applying the “substantial truth” doctrine, which holds that libel claims cannot rest on minor inaccuracies, in a case brought by a federal prisoner identified as a member of the Aryan Brotherhood.

Around the same time, the AP reported “Gorsuch has been a defender of free speech and a skeptic of libel claims, an Associated Press review of his rulings shows.”

In his latest First Amendment opinion, the dissent that garnered headlines, Gorsuch eventually concluded that he doesn’t profess to have “any sure answers” about Sullivan in the digital age.

“I am not even certain of all the questions we should be asking,” he wrote. “But given the momentous changes in the nation’s media landscape since 1964, I cannot help but think the Court would profit from returning its attention, whether in this case or another, to a field so vital to the ‘safe deposit’ of our liberties.”

In a pair of conversations over the phone this week, two First Amendment attorneys in Colorado said overturning New York Times vs. Sullivan would be very problematic for the press — but they were not overly worried about the immediate prospect of it happening. And both of them noted that in Colorado the protection is stronger than many states in that it extends Sullivan’s actual malice standard to all defamation suits involving matters of public concern.

“But without a United States Supreme Court decision saying this strong protection for speech about public officials and figures flows from the First Amendment, speech about important matters will be left to the shifting predilections of state law judges and legislators,” said Ballard Spahr attorney Ashley Kissinger of Boulder.

Steve Zansberg, who also represents media outlets here in private practice, appeared on a recent Wyoming Public Media radio show discussing the Gorsuch dissent. “I could be wrong, but I don’t lie awake at night worrying about whether New York Times versus Sullivan is going to be overturned,” Zansberg said on the show. “I do think it would be a terrible substantive result for us as a nation if it were to be overturned but I presently don’t think it’s an imminent concern.”

Zansberg also passed along this just-written research paper by Matthew Schafer that defends the Sullivan decision with evidence showing “the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press — one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.”

Backlight the blue

Should journalists pose for pictures with people in authority they cover?

There’s probably not a definitive blanket ethical answer to this, but taken on a case-by-case basis one can imagine situations where doing so could be innocuous or problematic.

The issue recently arose in Colorado when Denver Post reporter Alex Burness chastised three Springs TV journalists representing different outlets. The trio had appeared in what looked like a staged photo posing with a local police department’s spokesman that the department later posted to Twitter. “We have developed great relationships w/ our local media,” read part of the post.

Alex Burness @alex_burness

Journalists should not do this. https://t.co/zuBdgRRifJ

EPCSheriff @EPCSheriff

Thanks to our Public Information Office, we have developed great relationships w/ our local media. One of our PIO(s) taking a candid with local #reporters today from @KKTV11News @KRDONC13 and @FOX21News. Next time maybe with @KOAA, @csgazette, and the @csindependent? 😊 📸 https://t.co/YrzsSfoqBW

I’m told the journalists involved didn’t know how the photo would be used. And “candid?” Really?

Obviously a journalist can’t help what a source does with a photo, but they can ask how one might be used when requested to appear in one. Maybe that’s a lesson here. Even if just to stay off Alex’s Twitter feed.

Click the tweet thread above to check out a mini-debate that ensued — though none of those pictured weighed in. “Candid responses to media questions mean a lot more than candid photos,” said NPR’s bureau chief of the Rocky Mountains and Great Plains. Cheers to that.

These kinds of situations often remind me of a comment a Colorado reporter once told me about their decision to decline an invitation to a long-running off-the-record low-stakes legislative cash poker game. Lawmakers at the Capitol hosted the game and they invited select members of the press to play.

“One thing I was thinking about was, if someone tweeted out a photo of it, I don’t know how I’d defend it,” the reporter said.

That’s probably good advice to think about in general.

More Colorado media odds & ends

📺 NPR talked to three Latina journalists who “say their passion for covering issues involving Latinos caused friction with their bosses at KUSA, which is also known as 9 News, and they say that contributed to them losing their jobs.”

☀️ The Colorado Sun has picked off another journalist from The Gazette in Colorado Springs. Lance Benzel announced he’ll be a team editor there and will stay based in the state’s second-largest city. He follows Olivia Prentzel who jumped from The Gazette to the Sun in May.

📞 Listen to Westword editor Patty Calhoun call into The Peter Boyles Show on KNUS talk radio to correct the record (32:06 minutes in).

🌐 The Colorado Court of appeals ruled it is not a violation of free speech rights for part of the sentence of a convicted sex offender to include restrictions on internet use, the Grand Junction Daily Sentinel reported.

💉 710 KNUS talk-radio host Steffan Tubbs in Denver is back after 50 days off the air fighting COVID-19. “Tubbs wasn’t vaccinated,” Westword reports, “but he points out that ‘I wore my mask in public and wherever there was a mask order. I was never an anti-masker.’”

💰 Ben Smith of The New York Times wrote about how Elizabeth Hansen Shapiro, whose National Trust for Local News and The Colorado Sun took over Colorado Community Media with “a leveraged buyout — ‘the good kind, backed by foundations,’ she said.” She added she believes a “local news bond” with $300 million could be “enough to preserve nearly all the independent community papers at risk” in the United States.

🗳️ A video has emerged of Colorado Republican Congressman Ken Buck indicating he believes a Big Tech algorithm change could have moved 15 million votes. “I know people that own newspapers, and asked them about it,” he said.

🏥 A Colorado journalist who spent Mother’s Day in the ER with kidney stones reports how “high and dry Colorado” is “ripe” for growing the painful things that effect about 10% of Americans.

🏗️ Colorado Newsline’s new site design is “the result of almost a year of planning and designing.”

🆕 Mountain West News Bureau, a public media news collaboration serving Colorado, Idaho, Wyoming, Montana, Nevada, and New Mexico, hired Dave Rosenthal as its new managing editor. “The Mountain West is a fast-changing region and our public radio partners have a unique ability to highlight the stories of its residents,” he said.

🗞️ Current reported how the National Trust for Local News “aims to sustain community journalism.”

📺 Michael Roberts at Westword asked “How Overblown Were All-Star Game Mass Shooting Fears?” (teased on Twitter as “Anatomy of an All-Star Game media clusterf*ck”) and broke down the initial local media reporting. In an interview from jail, one of the four arrested told CBS4 it was a “giant misunderstanding.”

🍼 Three Colorado Public Radio journalists in Denver have had kids within in the past year. (I’m told CPR has a generous leave policy.)

⚖️ Conservative billionaire Phil Anschutz, who owns the Colorado Springs and Denver Gazettes, and the Colorado Politics news site, among other media outlets, is “suing Colorado for a tax refund” along with his wife, the Sun reports. But, “The Anschutzes’ complaint … is under wraps after the judge in the case, J. Eric Elliff, granted a protective order on June 1 barring public access to the document and other information contained in court filings.”

💻 A new Colorado resident plans to design a local California newspaper remotely from here.

🔗 Sentinel Colorado Managing Editor Kara Mason chides: “Local media will be all ‘collaboration over competition’ until it comes to a ‘first reported by’ line.”

⛰️ Michael Bender, a Wall Street Journal reporter and author of the new book Frankly, We Did Win This Election: The Inside Story of How Trump Lost, got his start at The Grand Junction Daily Sentinel newspaper. He spoke to The Colorado Sun about how it informed his journalism.

💸 A Colorado Public Radio reporter recalls working with “many a weird species of reporter who took some perverse pride in paying out of pocket for reporting trip expenses and shit like that.”

🌴 Programming note: Starting later this month, this newsletter will be hitting your inbox with less frequency. You might not see it at all until late August.

I’m Corey Hutchins, interim director of Colorado College’s Journalism Institute, the Colorado-based contributor for Columbia Journalism Review’s United States Project, and a journalist for multiple news outlets. The Colorado Media Project, where I write case studies, is underwriting this newsletter, and my “Inside the News” column appears at COLab, both of which I sometimes write about here. (If you would like to join CMP and Grasslands in underwriting this newsletter, hit me up.) Follow me on Twitter, reply or subscribe to this weekly newsletter here, or e-mail me at CoreyHutchins [at] gmail [dot] com.

John Livingston

Jul 16, 2021Liked by Corey Hutchins

Thanks for sharing the piece. I would say, though, that the Herald had no idea I was publishing this farewell column. There has been zero oversight in what I’ve put in the paper for more than two years now. It didn’t go onto a page or into the system until everyone else was gone Friday night. Probably not my finest move, but I felt OK publishing the truth and going about it without naming names (though names not mentioned might speak just as loud).

I give the Herald credit for not deleting the column online. But the reason I feel that hasn’t happened is probably because nobody there read it. They haven’t read any of my work - unless it ran on 1A - in a long time.

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Harold Scott Gurvey

Jul 18, 2021

I thought Gorsuch is an advocate for reading the Constitution as it was read at the time it was written. How does consideration of changes between 1964 and today fit into that?

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