2024-02-19 podcast

    5:19AM Feb 18, 2024

    Speakers:

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    kansas

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    newspaper

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    public

    transparency

    journalists

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    Kansas newspapers grabbed the international spotlight last summer with the police raid on the Marion County record newspaper. While that story is still rumbles along, new concerns have emerged. Kansas public television saw its funding threatened after a state senator took offense and media outlets across the country have faced a challenging economic and political landscape. Welcome to the Kansas reflector podcast I'm opinion editor clay wire stone. And with me today to talk about all of these subjects and more, we're glad to welcome Emily Bradbury, the executive director of the Kansas Press Association, and Max couch, a media lawyer from Lawrence, both of you, welcome. Thank you for having us. So let's just start with the softest of softball questions. Tell us who you are, and a little bit about what you do?

    Well, my name is Max couch, and I have my media law practice in Lawrence, Kansas, focus on on constitutional related issues. I'm also the hotline attorney for the Kansas Press Association and the Kansas Association of Broadcasters and also the president of the Kansas Coalition for Open Government.

    And so in other words, when newspapers or websites or whomever have a legal question, you're the guy. I

    feel questions from folks like that every time every every now and then. Yes,

    yes. And Emily? Yes. Again, Emily Bradbury, Kansas Press Association. I'm the executive director. So I do a little bit of everything that we represent both print and online publications. We're one of the oldest associations in Kansas, we've been around since 1863. And while working for our members, we are also hosts of the Sunflower State Spelling Bee for children, the Kansas civics games for high schoolers, and then we also put on conventions and contests for our members as well as lobbying for them at the Kansas State House. And we also take pride in the fact that not only we lobby for our members, but we also lobby for the general public and on transparency issues.

    Great. And Max, that's also something that you kind of work on a little bit with the coal the coalition.

    From a behind the scenes standpoint, there there are times when folks will ask me questions. As far as how the legislature might look at an issue. I wouldn't call that lobbying so much as education. Yeah, absolutely.

    Well, and you've read, and you've written for the reflector, some about that with Legislative Transparency. So just again, a kind of a broad question, but I'm really curious to know what comes to your minds with this topic. Just talking about the news media in general in Kansas right now print, you know, online, TV, you know, what would you say the situation is like, here in February of 2024?

    Well, the, I think one of the main problems that we that we experienced as an industry in February 2024, in Kansas, is that the Marian raid took place in August of 2023, August 11. And there is a so that's, that's been quite a few months now. And so certainly, law enforcement has every right and the public expectation to conduct an investigation and to do whatever is necessary to to establish probable cause and to gather evidence to to formulate charges. And purportedly. That's that's what's happening. However, it seems to me that at this point, it's been several months. Why hasn't there an announcement been made about, about charges? Who, who is being charged? Or who is who's being investigated and who might be charged? It's not even clear if there is. It's not even clear exactly who is being investigated. We don't have a good understanding of why no such announcement has been made. And till we get clarity, that the things that the reporters did to verify publicly available information, we have to we have to know, I have to be assured by the government, that the things that those that the people did for the Marion County record those journalists what they did, did not break the law. And until that announcement is made, you know, I just I don't know how a journalist can't have some some level of a chilling effect on what they do.

    Well, and I can also tell you, I can tell you both just from the correspondence that I receive every few weeks, I received get an email from someone saying so what's going on in Marion, what's going on with Marian and my answer is usually Well, I wish I could tell you, I wish I knew more. But Emily, kind of the high level question for you to what What do you see the state of things as in the Kansas press right now?

    Yeah, absolutely. You know, our industry is in a state of transition, right? We've got, you know, the media, or the online, internet, social media platforms that essentially steal the content. Without paying our members for that it's been a real struggle, I mean, that that part is really, really tough. And then when you combine that with a 36% increase in postal rates over the last three years, that is a lot. And the service has declined with those postal rates. So we've got papers out there that are struggling and having to raise subscription prices, not because they want to make more money, but because they have to pay the post office to deliver their product. But our readership is high 86% of Kansans look at a paper, whether online or in their hands. So the readership is there, it's just there are these external factors that are really putting pressure on the industry, which, again, just makes it more and more relevant to support local, because those papers support their communities, and they cover their communities unlike any other medium out there.

    So Emily, just to give us some perspective on this, and I know I've called you at various points to ask about this, you know, give us an idea of the numbers. How many newspapers, roughly speaking are in Kansas? And how many counties?

    Sure, absolutely. So we have 190 papers, that's both print and online. Every single county has a newspaper that covers it, the only one that is not based in a county is Elk County, but it is served by its neighboring paper, the Prairie Star and has been served well by them for years. So when you hear all about these news, deserts that are happening around the nation, Kansas has been so lucky, we have been so lucky. We don't have a true news desert in Kansas. So our our communities and our papers are out there, they're supporting each other. But there's just a lot of external factors that are putting pressure on the industry.

    So, you know, we've already talked about Marion, Iowa. In the introduction, I mentioned a little bit about the public television funding situation that funding was was restored on third on Wednesday, it appears what kind of threats to the free press and this is kind of separate from the economic situation. But what kind of threats? Do you see the news media in Kansas really facing now? What are what's what's most serious, right?

    Well, I think one of the problems is it's just been trickling down from the national discourse, which is a misunderstanding about what the First Amendment is, the extent to which I think that some people believe the First Amendment amounts to a Get Out of Jail Free card, you know, also the extent to which so people think that the, the First Amendment doesn't exist, and then spin speech can just can't be censored because it is disagreed with. And I just, I really think that there's just a dearth of understanding about the distinction between what is protected speech, and what is not protected speech. And the incident involving the PBS funding is a classic example of that, because there is regardless of the opinions that are expressed, in that documentary, there, they are reasonable, they're reasonably related to the facts, ie the passage of a law that defines a man or a woman. So it's, this is a law that has been passed, that makes it a subject to public discussion. That means that opinions about governmental matters, you know, some opinions are going to be unfavorable. That's the nature of opinions. And for the, for the legislator to claim that that that the production of these opinions, amounts to speech that that needs to be hit with a hammer, is is just suggested various misunderstanding of what free speech is, in order to be able to justify the kind of thing that that she was suggesting. I mean, the very first thing to ask yourself would be, is this speech protected? And it certainly some speeches and is not protected, for example, true threats, you know, true threats on the internet. You know, someone there's a recent United States Supreme Court case, where the where the where the, where the defendant in a criminal case was charged with online harassment, and argued that, oh, this is just my First Amendment right to communicate with this person. And the court found under the circumstances in that case that that communication amounted to true threats. So a true threat And then also came to that it was originally defined in a case that had to do with burning across and by the kk k. And K K argued similarly, well, hey, we're just exercising our First Amendment rights. No, it constitutes a true threat, but it's not protected under the First Amendment. And so the misunderstanding then is drawing a false equivalence between the true threat and expressing a legitimate opinion about about a government action. And for that government actor who was responsible in some part for the passage of that bill, to then try to swing a hammer for someone who criticizes against someone who's criticizing who's criticizing the government action is is an infringement on the First Amendment.

    Emily, what do you see?

    Sure.

    I mean, and I mean, I think more broadly speaking, right, it's, there's an educational component to this, like, what do newspaper what does the news media do? What is commentary? You know, all of all of these questions, right?

    Absolutely. You know, news literacy is important to us. A lot of people ask me, Well, why do you sponsor the Kansas civics games? Why do you sponsor the spelling bee, and I said, we have a vested interest in an engaged readership, like we want our readers engaged, right, and they're more likely to be engaged if they're readers of their local publication. And so that's why we do this. We know what happens when a newspaper goes away. bonds go up 11% Fewer people, people run for mayor. So but it's really interesting when I'm out in the community. And we talked about little bit about kind of on the coasts, what's happening, and all this talk about journalism is dying and, and clay, you refer to this, and one of your pieces, which was great was that that's not Kansas, that may be on the coast, but that's not Kansas. And when I go out to these communities, and they talk about the mainstream media, mainstream media, and I say, Oh, well, what about your paper? Well, that's not the mainstream media. That's No, he's at my, you know, Child's games cover. And I love him love my publication, you know. So there's a difference, right? Because proximity breeds empathy. So they're seeing these people at their community events, they know what they're, they see him at their city council meetings, board of education meetings. And so I often tell audiences, I don't have time to go to a city council meeting, or a Board of Education Meeting, your person is there, your local publisher, or reporter is there doing that work, and we know what happens when that person goes away. And so you need to support them. And also making people realize that the media, these small town papers, radio stations, TV stations are also small businesses. So if you value your development in your communities, and local community ownership, you will support that local business, because at the end of the day, it's another small business and your community. Well,

    and that it's you know, and it's it's part of a larger system, right, I'll have a larger system that hopefully, informs, you know, a lot of people. And that, you know, as the, you know, all of these things work together. And I mean, which is part of part of what you do. And

    I was, and I would say that as far as that network of things working together, to to inform everyone in the lack of news deserts, I think one really important component that the legislature has decided what was important in the state, you know, decades ago, was to create this process where there would be official newspapers for each of these, each of the public bodies. And so that, you know, that connects, that that makes a mutual investment in, you know, the small business, which also happens to be the news media and the First Amendment and the government all working together, you know, to have that forum for the publication of public notices, which, you know, can, not only does it help the government, but in many, many instances, we're talking about things like service of process, by publication, you know, people couldn't get cases going divorce cases, for example, sometimes if they do if they don't know, where the parties absconded or something. So there's the importance of this network. I mean, it's the kind of thing that binds together the legal system, because not every case is going to be a claim case. You know, some cases are going to rely on that notice by publication in order to connect the dots. And, and, you know, it's a it is a great thing that the legislature has been back and forth and that over because there's, there's a contrary perspective, which is that, well, if by making the official newspaper do you put the government and the free press in hand in hand, and then how we're going and how is that going to work out? And but I think that but I think as we've seen now how it's played out, just the balances in favor, that that actually works, because there is still an ethical, a wall that is created that is still built between even the official newspaper and and And the government that they cover to the, you know, enough to foster the industry all of these decades. And and then and then result in not having news deserts where, you know, as someone who also practices in Nebraska, there isn't the official newspaper set up in the statutes. And there are news deserts, correlation.

    Sure. So we are now again being in February of any year in Kansas, it means that the state legislature is going to be meeting for better or worse, you know, people can decide which one of those it is. But we do have legislators come in here to Topeka most days, what are some of the bills that both of you are tracking? Talking about trying to educate people on?

    Why don't Emily, why don't you go first? Sure, absolutely. I will just cover a few Max is much more versed on these issues. And as far as testimony and our reasoning behind that, I would say probably our number one bill has been core cost containment. That is the Kansas open records act there. There has been some problems with municipalities or units of government charging, and there's a bit of a gray area on what they can charge. And so we are coming. It's not our bill, but we are in support of 2599, that puts a cap on what people and government entities can charge. And then also, there's a few other bills, Senate Bill 375, which talks about an AI, which we came alongside of our partners in the broadcaster's, which I do want to point out, we are partners on most issues in the state. So we've really value their partnership on these bills, where they're fighting for transparency just as much as we are. And we come along came alongside of them to talk about AI. And we completely see a need for regulation around that issue. And so but we also wanted to make sure and it's part of what Allison and I do is we want to make sure that our journalists don't get caught up in this, that it can't be used against a free press. So we were able to get some language change. And they were the committee was very receptive to those changes. Because what I have found a lot of times is that when we educate legislators about a bill, a lot of times it comes from a good place. And it's really we just need to educate them on Okay, here's the thing, and like, what I'd like to tell Trent legislators about transparency is, most of the time it protects the public, but it also protects the public servant, right? The public may not like the decision, but they can respect that there was a process and that you were transparent about it. So explaining to them and it's not just for journalists and the public, it's also for you, it's also for the perception of how you are doing in your role, and trying to promote transparency as much as possible while still maintaining protections for our journalists so they can do their jobs. Sure.

    We'll see, we following up on the on the cost containment bill. So the key there is that it would, it would establish a minimum hourly rate. So just because the key and the legislature's always to balance step is to balance all of these competing interests. And so the legislature originally had it had had a term in there or had a provision in the Kansas open records act, to allow for the cost of staff time to be recovered by the agencies. But you know, it's interesting when the when bills start getting written, and then you look at things a little closer, and you start to wonder, does that really what it says? And so I think there are some arguments that can be made about how staff time is applied, regardless to to anything that has to do with this bill. What are that what led to this bill, specifically, but the bill would solve these would solve these problems. And, you know, the pushback has to do with, you know, has to do with public agencies that you know, and again, I try to see it from their point of view, there's a lot of commercial requesters in oil and gas state, there can be a lot of bulk requests for, you know, for deeds and such, and, and proof of mineral deposits and this sort of thing. And so, you know, so I get it. And so and so I think the bill does a great job of, of curtailing the abuse of the statute, while also allowing the public agency to still be able to recover some of the time and and you know, what, ultimately, the agency has, I think, just has to accept that as part of being a public servant. You know, some of those taxpayer dollars are going to go to informing the public and so you know, if we can get all get to the point where we agree that there's some money that can be recovered, and I think we're headed there. I think that I think that bill really helps get to that point. And then lastly, in a in a, in an article that was cut that was published in the room Then the reflector last week about the Kansas corporations commission Kansas Corporation Commission's attempt to amend the Kansas Open Meetings Act. The goal there would would be just to I actually don't want to mischaracterize the bill. But well, because I believe there's there, I believe what the proponents would say is that there are additional procedural safeguards that are put into the bill that would counteract removing the Open Meetings requirement from the bill. I'm pretty confident that's what we would be setting. And I think my counter to that is city commissioners, real water districts, county commissioners, school boards, I mean, how is it that all of these bodies large and small, you know, discussing issues of both mundane and hyper important? How does the Open Meetings Act work for them and not for you? That, how can you demonstrate the interest that you have that makes you so different from all of these other bodies? What there's ability to recess into executive session, if you follow certain certain rules, you know, it really sounds like an organizational and staff problem, if there's so much deliberation happening before the meeting, that it just ends up to be de facto a voting session, that's not serving the public, and knows no change in the law is going to help the public in that instance, what's going to help the public is for the body to to comply with applicable law and to conduct yourself accordingly. Well,

    and I think it's just one of the things traditionally, if in if anybody's been a journalist for any period of time, or adjacent to journalist, journalists, you know, there's always a reason that public official can say that open records requests or transparency requests are burdensome. There always is, you know, there's always something there's always some reason about why it's burdensome or troublesome or why it takes up too much time. But ultimately, you have, you have to say like these, these laws are there for a reason.

    And I think the best way to push back against a categorical assertion that something is burdensome, is that it isn't about a categorical assertion. It's about a balance of rights, it's sure there's going to be a burden, you have to accept that there will be a burden. But the question is, does the the assumption of that burden is that worth doing? And, you know, when it comes to the availability of public records in an electric democracy, you know, the air it just we just have to err on the side of transparency?

    Well, and again, it's it's one of those things where, and I think, Max, this is why you're so important. I mean, I know you're not going to say this. But why I think you're so important in Kansas to two news organizations is that, you know, it takes a certain amount of gumption to go up against government bodies to ask for information like this, and to say, No, the law is on our side. And you know, you have I mean, that's something that you provide is very useful. Thank you. So now, just just turning a bit. And Emily, you talked a little bit about this with the with talking about social media, talking about mail rates, you know, we are facing a tumultuous time. In the news, news business, there's a lot of economic kind of challenges. How, I guess the question is really, how do you think outlets in Kansas are handling those? What is What are you seeing? Sure,

    they're handling them very well. They are, especially in the smaller communities, you know, because what we found, especially during the pandemic, is that, you know, as we saw it kind of work its way the virus work its way from east to west. It seems like when I watched my members, it was no one was reporting on Greeley County, on how the COVID virus was impacting that county more than those local radio stations and newspapers. I mean, you couldn't get it anywhere else. I mean, they weren't getting the numbers. They were the ones telling their community, here's how it goes. Here's here's how it's affecting us. So in so many communities in Kansas, their local publication is the only one focusing on that community. 24/7. And I think people realize that, I think where the struggle comes in is when we are also dealing with the rural Migration to more populated areas. So that but that's nothing that every economic developer in the smaller towns is facing, but they are doing it well. And we are seeing second career journalists coming back. You know, working in economic development. We have one publisher in Northwest Kansas that left her economic development job to buy the greedy Cal Greeley County repo cookin. And she's amazing, because she believed in that paper. And so and what they did and how it held that was a cornerstone of that community. That's

    the story of the Marion County record for 100%. Yeah, absolutely

    100%. So the public understands it. And like I said, their perception of you know, what's going on on the coast and in certain other more populated areas in the nation is not what is happening in Kansas. But that does not mean that they don't need the support. Because again, like every other industry, you know, in every other business, like things are tightening up a bit. And so with the postal rates and the cost of printing going up, but we've got the eyeballs. And so that's what I want to make very clear is that people are reading our publications at a very, very high rate journalism, and Kansas is not dying. In fact, it's thriving. And so that's wonderful to see and to work for our members is such a great privilege. Well, I

    mean, this is something that I repeatedly tell people when I talk about being in journalism is that, you know, it's never been a problem in terms of the number of people looking at content. Like if anything, that number has continually increased, you know, thanks. But also some of the things that cause problems provide this at the same token, but you know, people people read the content, they, the challenge is how you arrange a kind of a business model around that. And you know, and we're seeing, again, you know, I think, you know, we're seeing in Kansas, and a number of different kinds of nonprofit approaches and whatnot, people, people were hitting it in different directions they are, and

    I think it's really important to understand too, that a nonprofit model will work in certain areas, and it will not work in others. And so, you know, all this research that's going on is so very helpful. And it's great to be able to go to our members and say, Here, here's some revenue models that that we have been studied. I mean, there are ongoing research at K, u and nationwide that are studying papers in Kansas, trying new things. So we've got innovative publishers that are looking at new ways to do everything. And so it's really it's an exciting time, while the challenging time it's still so exciting, because, well, I mean, there's there's governmental funding models, that nonprofit partner with foundations, and there's just some really real innovation going on. And there are other papers where the traditional advertising based model works. So you know, it just it's really there's not a, there's not a single silver bullet is completely cultural and specific to most communities.

    Yeah. And I think that's the thing is, that is when you see journalists that have traditionally been in bigger metro areas, and, you know, we're, you know, kind of, you know, making fun of the coasts a little bit here today, but really, it's in a lot of I think the bigger Metro places, there is a desire sometimes to say, I wanted the single thing that works. And I want to have everybody be able to use the single thing that works. And I just, I don't think my impression is we're not necessarily at that point. You know, because, again, as you say, traditional add stuff works, nonprofit might be work for some people, but I've also heard someone say, you know, nonprofit is a tax status, it's not a business model. You know, like, you still have to, you know, you still have to support those

    publications. Yes.

    So I guess, kind of, again, to kind of fuse these two, these two things we're talking about, in terms of challenges for the press, and the fact that we're in the the legislative session, you know, are there ways you think that state government could, could help local news media grow or thrive? What are what are some of your guys's thoughts on that? Well, I

    mean, the easiest to do would be to, to, would be to avoid passing charter ordinances to put public notices on on public agency websites. I mean, the, the the key, you know, the Kansas legislature, it's, it's an interesting, it's an interesting thing, because there's, I think the Kansas, like many of you know, any other place in in, in this our Federalist setup, you're gonna have the big government folks versus the local control folks. And that's going to be one of those those things that really, that that drives this discourse in the legislature. And so as a result, you end up with an ability that's fairly unique to Kansas, where optina, where the where the law exists in a way that allows this mechanism to be used. You know, I haven't fully done the research, but I'm willing to bet it's a pretty unique scenario where, where, what's, what's happening where it's possible to happen here, and it's frustrating, because, you know, I guess, I guess you could, I guess, maybe the government would argue that it's the it's the it's the trade off for having the official newspaper status. You know, if there If the government deems there is no appropriate official newspaper, then they can do it themselves. But the point here is that the readership Well, there's no reason, there's no reason to take that step if you're a local government body because of the readership because of the ingenuity of the publishers, because it's the support of a local business. And most importantly, because in order to, for the for society to trust, the things like service by publication is happening in these really important things that happen as a result of legal notice. This stuff has got to be done in a third party controlled venue. And for the last

    20 years, we have kept up a website Cantus, public notices.com, which aggregates every public notice that is published by our papers on one website. So we already have the website that aggregates all of those public notices. So again, it meets that that transparency level of it's a third party. And you know, a lot of people understand that. I mean, a lot of local officials, so I don't want to want to say that everyone's trying to do this because they're not as Max knows, but there are certain ones that look at their paper, they say, I want you to publish that because it covers me, like I mentioned before, it protects the public servant just as much as it protects the public. Max.

    Emily, thank you so much for coming by today. It was it was great to talk. Thank you for being here. Thank you