This past week has been full of so many different thoughts and feelings that I struggled to find any theme for them all. With my time here reaching its horizon and my future after law school hanging squarely over my head like a Looney Tunes piano out of an eighth story window, the best "theme" I can imagine is wondering what the future looks like for this industry and my place in it.
The future of journalism
I predict this medium of newsprint will fade away entirely. Magazines may survive, but they will have specific audiences and even they will dwindle over time.
I expect, however, that the for-profit "print" news that survives will be through downloadable applications for e-readers and mobile devices. People using applications are not unfamiliar with paying for apps, plus it offers needed content in a familiar, easy to use format.
I'm not sure how easy this will be, and given the expense of such a transition — especially while people still hold on to newspapers that cost so much to produce — much quality journalism will enter the downward spiral. So when we do see this transition into digital journalism, I worry what kind of content will be filling it.
I predict also that the quality journalism that does survive will probably convert to non-profit media first. I've written about this already for the CMLP and included a link below on my thoughts. Allowing non-profit media to continue producing needed information so long as they can produce enough revenue to stay afloat is probably where most investigative journalism will be forced if it wants to continue in the twenty-first century.
The future for media lawyers
I can tell from my work with the Online Media Legal Network that there are several legal issues that a young media lawyer would be wise to understand. I believe these will be what attorneys, who will continue finding more clients needing legal assistance for digital media, see more frequently in the coming years. Here are only a few (in no particular order).
1) Know and understand how privacy policies and terms of use policies are drafted and how they protect customers AND web site owners. These can help your client OR get them into trouble. Also, I'm sure it doesn't hurt to understand how these work internationally, although I confess I never saw any international clients in my time at the CMLP.
2) Know if your state has an anti-SLAPP law and how it works, because it could get you paid.
3) Learn more about non-profit tax issues, as this is probably where many journalists will end up in the next few years and you'll be the one they're asking for help, IF you're lucky.
4) Know the Communications Decency Act and the immunity it gives web site publishers in § 230. In fact, sleep with it under your pillow. In 2011, there are still lawyers out there who don't know about it. Don't be that guy.
Actually, if you're suing my client, I'd really prefer you WERE that guy, but nevertheless at least *I* won't be *that* guy.
5) Know your state's wiretapping act. The federal wiretapping act is what I heard about in law school, but state wiretapping acts somehow passed under my radar until my time here. Know how it's worded inside and out. Remember Glik v. Cuniffe (see my earlier blog post in June) and how easily a wiretapping act was used to arrest someone recording openly in public.
6) Know your administrative law. This has always been a no-brainer for anyone doing media law, but before it probably seemed less important if you wanted to represent print media. But as I mentioned earlier, print media will probably become nonexistent. The FCC has already tried to assert power over the Internet in the debate over net neutrality. While it's questionable whether they have statutory authority, I have little doubt that eventually Congress is going to make it clear and give that power to the agency. Think about how much of our recent telecommunications innovation has been through the Internet. Even television will someday be deliverable entirely online, and it's getting to that point soon.
7) Know your commerce clause and be ready to see it — a lot. Again, this is a no brainer. But, I bring it up because Congress has used the commerce clause to exert control to regulate the Internet (see point 6). We may see a SCOTUS debate about the extent to which certain activities on the Internet are "commercial" -- we may also see a SCOTUS debate over regulations of activity that seems entirely local being subject to federal control just because there is an online component. The Internet can indeed allow activity that at any point crosses state lines but can also offer activity that entirely stays within a particular state. The person using it may have no idea, nor do they care.
As a Berkman Center intern, I've been able to attend Berkman Center luncheons and this past week I attended one about recent amendments to the Federal Kidnapping Act, wherein Congress, under the commerce clause power, to allow for subject matter jurisdiction over the case if the perpetrator used the Internet in some substantial way when allegedly committing the crime. The speaker pointed out that one defendant who used the Internet committed the actual violent crime in a state with no death penalty — but, because he was taken into federal court for using the Internet to lure his victim, he could face the federal death penalty. Now I know this is slightly off topic, but it's just an illustration of how this debate over commerce clause power is going to continue in the digital age.
Really, this is probably the most exciting time to be a media lawyer, and also the most competitive. Which brings me to my last point.
My future
Now that, friends is a scary thought. Will I find employment at all? Will I find it soon or at the last minute? Will I find some place that offers me good opportunities to at least try to practice media law whenever I can? Will Terry and I even be in Kentucky this time next year, or will we have to move far away?
I am, as we speak, applying for federal court clerkships and working on cover letters to send to law firms. I have no idea what will happen, or if I'll be able to practice this law ever again. Even if I do not, I hope I will find something fulfilling. Something that makes me remember why I came to law school. But hopefully, I'll find a place at a respected firm that lets me at least practice some media law, whenever the opportunity arises. Maybe then, someone will notice my work, and I'll get the chance to actually do this full time.
At least I have my dreams. And Terry.
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