Richard Tofel | ‘Investigative Journalism in the Digital Age: A recovering lawyer reports’

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DEAN MINOW: I have been really–myself, personally– so much of a fan of RichardTofel that I just had to have himcome back to campus. He is the presidentof ProPublica. How many people knowwhat ProPublica is? OK! RICHARD TOFEL: So you’renot just here for the pizza. That’s great! DEAN MINOW: As you know,this is really the most, I think, innovative effortto deal with the crisis in investigative journalism. And by creating a non-profitorganization that actually uses digital tools and figuresout ways to support other journalists as wellas the people who are there, I think it’s really doingvery important work.In addition, I thinkthat many of you know that the missionof ProPublica– and I’m quoting from its ownwords– is “to shine a light on the exploitationof the weak by the strong and on the failuresof those with power to vindicate thetrust placed in them.” And I wonder if maybea little of that was something you’ve learnedat Harvard Law School. Richard’s 2012 book, WhyAmerican Newspapers Gave Away the Future,is a crucial window onto the challenges ofcontemporary journalism. And in his role as presidentnow, he’s building on the work that he did since the founding. He was the generalmanager at that time. He works on all ofthe business side. How do you keep it going? How do you raise the money? How do you manage the people? How do you manage the externalcommunications and development? He’s here to help usunderstand the prospects for investigative journalism. And I will let himdo that, but not without saying we’re soproud that he’s our graduate as well as at the collegeand the Kennedy School.He practiced law at PattersonBelknap and Gibson Dunn. He served in the administrationof Mayor Ed Koch in New York. He served in the DowJones organization, which is the publisher of theWall Street Journal, as vice president, as assistantmanaging editor of the paper, as director of internationaladministration development, and other fascinatingjobs include being vice presidentand general counsel of the Rockefeller Foundation.And he has fouror five more books including A Legend inthe Making– The New York Yankees in 1939. And maybe we’ll get to thatin Questions and Answers. RICHARD TOFEL: Right. Thank you, Dean Minow. [APPLAUSE] RICHARD TOFEL: Thanks very much. I’m happy to be here, andI very much appreciate Dean Minow inviting me. It’s now been almost 32years since I graduated. That’s scary. And in that time, Ipracticed law full time for less than nine years andpart time for another nine or so, including currently. So I’ve said thatthese reflections come from a recoveringlawyer, but certainly not a recovered one. And I can say that whilethe five plus years of big firm full-time practicewere a mixed experience, I’ve truly loved my legal workas the Wall Street Journal’s first in house newsroom lawyer,and as the first inside general counsel of theRockefeller Foundation, and as the originalnewsroom lawyer, as well as the general businessmanager at ProPublica.So I’m not here asone of those people to tell you to throw offyour chains and flee. And I’m happy totake any questions on any of those rolesin a few minutes, or how I fell into them, whichis the case in almost every one of those roles. I do have some words ofcaution for lawyers dealing with the press on behalfof clients as opposed to representing thepress as clients. Because far more ofyou will find yourself, I’m afraid, contending with thepress rather than aiding it. But I’m going to savethose thoughts for later. Instead, I want tobegin by telling you just a little bitabout where we stand in my industry, the journalismbusiness, and especially the investigative reportingside of that business. I want to warn you thatthis is not a happy story. The business of thepress in this country has been in crisis for 10 years. It’s worth remembering thatthe most profitable year in newspaper history in thiscountry was the year 2000.And at that point,it still looked like the consumer internet,which emerged in 1994 and 1995, could usher in a golden ageof the newspaper business and of the journalismbusiness generally with free distributionto huge audiences and near 100% profit margin onincremental advertising sales. But since 2005, it’sbeen increasingly clear that instead, the digitalrevolution is not just disrupting but actuallydestroying the business models that producednearly all of the quality journalism of the quartercentury following Watergate.You probably know this story,but just let me sum it up in a few quick points. Barriers to entryinto publishing have largely collapsed. That’s great for spanning a newwealth of opinion journalism and for facilitatingconsumer access to much greater flows of new. But it’s also hell onprofit margins generally. The rise of alternativenews sources has– entirely predictably–eroded the audiences of incumbents fromnewspapers to magazines to broadcast television news. This cycle is farfrom done playing out. The supply ofdigital advertising has exploded, greatlyoutstripping demand. Just think about thenumber of new Facebook pages being created everyday, and you’ll immediately grasp this. You are, yourselves,as am I, undoubtedly part of the problem. When supply exceeds demand,prices, of course, fall. In this case, the priceseems almost inexorably falling towards zero. Almost all the bestinvestigative reporting in this country has longbeen done by newspapers. Yes, the muckrakersbegan in magazines, but they didn’t staythere very long, and that period pretty muchended with the first World War.So where did these trendsof the last 10 years leave newspapers and thus muchof investigative reporting? Print circulation fell. Advertising revenue fell. Paid digital circulation,where possible, didn’t come close to makingup the difference, even though total audience sizeexploded to numbers previously literally undreamed of. When an industry facestrends like these, it retrenches and it jettisonsloss-making activities whenever it can. For almost allnewspapers, that meant less investigative reporting. Until a couple of years ago,essentially the sole exception in the entire countrywas the New York Times. Now the Washington Post,under a new, very rich owner, may be another. But that’s pretty much it. Why did decline inbusiness so seriously affect investigativereporting, perhaps more than any other area oftraditional journalism? The reasons, I think,are also clear.Investigative reportingtakes a lot of time and is thus expensive. It is risky in the sensethat some stories just don’t pan out. We talk about itourselves as being a lot like drilling for oil andoften finding dry holes. And it does not,generally, garner the highest readership ofarticles in a general interest publication. So while it is prestigious,and societally valuable, and even the people whoare cutting it, I think, concede both of thosepoints, it can also seem commercially expendable.This is a loss, of course. But not just forreaders, I’d argue. It’s a loss for democraticgovernance, which had come to depend oninvestigative reporting over the last 125 years as acritical check on the power of government, on business, andon other powerful unentrenched interests. The result is a ratherclassic market failure. That is to saythat the market is no longer capable ofsupplying the desired quantity of a publicgood– in this case, investigative reporting–and other non-market sources of supply are needed.The question is what orwho could fill the gap? ProPublica, I’m happy to say,has been one of the answers– not in quantity. We have a newsroom of 45today, a small fraction of the investigative jobs lostin the last 10 or 15 years. But in quality, I hope. We’ve been proud to wintwo Pulitzer prizes, the first ever awarded toan online news organization, and then the firstever for a material not published in print. We’ve also won a NationalMagazine Award, a Peabody Award, the highest honorin broadcast journalism, three George Polk awards,three Online Journalism awards for generalexcellence and a host of other designations.We were a finalist this year forthe Kennedy School’s Goldsmith Prize, and have been fiveof the last seven years. Our reporting onschool resegregation is a finalist for the ABASilver Gavel this year as well. Even more important,we’ve spurred real reform, real change,through our reporting. And that’s what we’rein business to do. As a nonprofit,that is our mission.The differences thatreporting has made have ranged from policereform in New Orleans, to new nursingoversight in California, from tougher Medicarerules for prescribers, to a new system for identifyingand repatriating the bodies of soldiers missing in action. Even beyond the particularsof our own work, I think we and othershave begun to demonstrate that news organizationsfunded mostly by philanthropy, including gifts large andsmall, can help ease the market failure and increase thesupply of this public good of investigative reporting. Two last points before I moveon to take your questions. First, people ask whyall this great work can’t support itself, can’tbecome self-sustaining without donations. The answer in brief is that thenumbers simply don’t add up.Advertising onlinedoes not throw off enough money to pay forcontent almost anywhere. Indeed, it’s hard to think ofa single advertising-supported online-only publicationthat even breaks even. If Buzzfeed is anexception, that would only be becauseof its enormous scale. And it’s worthnoting that Buzzfeed has 10 times as manynews staff as ProPublica, but only one fifth theinvestigative staff. Consumer payments arealso simply not an answer. As the plateauing of onlinesubscribers at the New York Times, which remains thebest publication we have, after just a few years proves. But I also think thisis the wrong question. Why can’t a news organization,powered mostly by donations, be self-sustaining? Is Harvard self-sustaining? Yes, I think it is. I think we can all berelatively confident that late in the century, absent somenuclear disaster, or a meteor, or something, thatHarvard will celebrate its 450th anniversary.But it wouldn’t be able toget anywhere near that far– it probably wouldn’t get verymuch into the next decade– without donations. The same is true ofour great museums and other greatcultural institutions. Why can’t this same standardgovern sustainability in nonprofit news? If it can be the standard,then we are getting there. In less than sevenyears of publishing, we’ve built a reservefund of $5 million, reduced our foundingfunders from 95% of revenues to about one-third. This year it willbe one-quarter, and we’re headeddown from there. Last year we had morethan 2,600 donors. I hope you’ll considerbeing one of them. Last point– not really relatedto the rest of what I said, but I couldn’t resist beinghere today and not raising it. Most of you, I realize, willnot end up in journalism. But more of youthan you may expect will end up dealing withjournalists in your work. So I have couple of tipsmixed in with a plea. First tip– don’tlie to reporters, no matter how much your clientmight like you to do so.It’s not a crime tolie to the press. Elected officialsdo it every day. But reporters havelong memories. And they’ll have avery hard time drawing a line in their heads that youlied for one particular client, but that you’re actually atruth teller in other contexts, or left to your own devices. Second tip– don’t dothe next worst thing, which is to claim someobscure, technical legal reason for your position whenyou’re just stonewalling. I’ve actually found in dealingwith reporters over the years that by far, when you can’ttell them or just don’t want to, that if you just say,”I can’t or just don’t want to tell you,” it’sby far the best strategy. If you followed ourcoverage of the Red Cross, you know that beganwith the Red Cross taking the positionthat what they had done in responseto Hurricane Sandy constituted a seriesof trade secrets.And they hired my old firmto take that position. That’s the kind ofthing that leads a news organizationlike ours to put two reporters full time on a story. It also tends tobring the law itself into disrepute with journalists,which is not good for society. And to come back to tip one,it can feel to reporters as if you’re lying. Finally, a plea– remember thatin dealing with journalists, there are multiple legalinterests all around us, and that these oftenneed to be balanced. You may actually have one ofthose interests on your side, for instance, SeventhAmendment fair trial rights. Or the legitimateprotection of trade secrets under the Freedomof Information Act. But acknowledging that there areother interests– for instance, First Amendment and common lawrights of access to the courts, or the Freedom of InformationAct’s principal mission of disclosure– onlyenriches and respects the important exchangesyou could and should be having with reporters. And with that I’d loveto take your questions.[APPLAUSE] DEAN MINOW: So I’mstill Martha Minow. One of the thingsthat’s interesting to me about the work ofProPublica is the tenacity in using legal tools like theFreedom of Information Act. So if you could reflect onhow much the legal tools are helpful, how muchthe law is a problem for investigativejournalism, how often do you hear thingslike trade secrets, and how much thereare pay walls now that make itdifficult for people to get access even togovernmental information, that would be helpful. RICHARD TOFEL: FOIA can beenormously helpful if you have an agency that wants to help. And sometimes youhave an agency that’s just playing it straight. But I will be honest,it’s certainly far better than if it didn’t exist. But the law itself andthe system under it is incredibly dysfunctionalfor a couple of reasons. One is, its time periodsare never observed. I had an exchangewith the President’s first chief technologyofficer who was trying to open up the government.And I said, you know, if youreally want to make a change, you could do it by issuingan executive order that says everybody’s got tomeet the FOIA deadlines, or disclose, or certify that thenational security is endangered by this request,by our disclosure of this requestbecause you clearly need some out like that. And he said, well,we couldn’t do that. And I said, well, why not? He said, well, for instancethere are health privacy laws, and all sorts of stuffwould get disclosed. I said, yeah, but you know thathealth privacy law, it’s a law. And the Freedom ofInformation Act, it’s a law. And if you’re the President,part of what you get to do is when there are twolaws and only one of them can get enforced, youget to decide which one. That’s one of the coolthings about being President. But somehow in thegovernment there has come to be a completelyuniversally accepted notion that if two laws come intoconflict, and one of them is the Freedom ofInformation Laws, that one should be violated.And every agency does everyday, hundreds of times. Second problem is agencies,when they deny requests– because frankly, theyhave the resources, and it doesn’t cost themanything– always litigate. They just say no, and thenthey lose, then they litigate. Then they litigateagain, and they appeal. So what I wouldsay to reporters is we file requests all the time. But in terms oflitigating them, we have to decide if the subjectis really important to us, so we’re going to spend aconsiderable amount of money, and if it’s going tobe important to us, not just today,but years from now, which is when we would win. We have a state law casegoing, for instance, with the New York CityPolice Department, which is a particularly antediluvianagency in this respect, who bought a bunch of the– you knowthe x-ray machines that they had in the airportsthat they took out because they were unsafe,which was actually a result of our reporting on them.So we discovered that New YorkCity Police Department has bought a certain numberof those machines and is driving themaround New York in vans and pointing them at thingsto try to find terrorists. And we know that’s true. They’ve admitted that’s true. We don’t know how many vans. And we don’t know whattheir guidelines are. And they won’t tellus what their health guidelines are for using them. So we sent them a request. Zero documents. Can’t disclose anything. Can’t disclosethe safety manual. Can’t tell you howmany vans we have. Can’t tell you wherewe’ve ever used them. So we litigate this in theNew York State Supreme Court– not the nation’s mostefficient tribunal.It takes two years to win. We win with thehelp of the clinic Floyd Abrams set up atthe Yale Law School, by the way, which doesspectacular Freedom of Information work. The PD is now appealing. I mean, it will be fiveyears and two or three mayors before we get them totell people what they’re doing with this– frankly,I think– crazy machine that was taken out of prisonsyears ago because it was unsafe and then finally taken outof the nation’s airports, but is still, Ibelieve, cruising the streets of New York. Sorry. Yes? MICHAEL LINHORST: Hi,I’m Mike Linhorst. I’m a 1L. Can you just talka little about how you fell into beinga newsroom attorney and journalism in general? RICHARD TOFEL: Sofirst thing I always say when I give people careeradvice is that the smartest observation I ever read abouthow your career actually progresses in real life wasPresident Kennedy was asked once how he became a war hero. And as you may know, being awar hero and John Hersey writing about him as a war hero gothim elected to the Congress at a very young age, and therest is literally history.So how’d you become a war hero. And he said, “It was easy. They sank my boat.” Which is to say,it was an accident. And that’s true. I think most career developmentsthat end up making a difference are accidents. I became a newsroom lawyer insort of stages, all of which were a series of accidents. I wanted to do it,but there were frankly a lot more peoplewho wanted to do it than people who could do it.I went into city governmentfor six months on leave to do a non-press law thing–help reform the welfare administration in New Yorkas a young associate, which Patterson Belknap wasgreat about letting me do. I came back out, and theyneeded somebody right then new on that team, so Igot put on that team. Then a year later, the partnerwho was doing that work decided to switch firms. It’s Bob Sack, who’s nowon the Second Circuit. And he had a whole team ofpeople, five people or so, of whom I was the most junior. The most seniorassociate decided he was right on thecusp of making partner at Patterson Belknapso he thought it was too risky to leave. He was probably rightbecause he’s now the managing partner of Patterson Belknap. The next associate hadhad a personal tragedy. Her husband had died withindays of her baby being born. And she justdecided she couldn’t disrupt her life in thatfurther way, which made sense. The next associate decided thatshe had a personal problem that precluded her going with Bob.So I went from being thenumber four associate on this fairlylarge body of work overnight to being thenumber one associate. And I was less than threeyears out of school. So that was, frankly,just an accident. But a huge break. And then I loved the work I didfor the press at both firms. At both PattersonBelknap and Gibson Dunn, I frankly didn’t love theother part of the work I did, which was about half. And I finally got tothe point where I though liking half your workwas probably not great, so I went looking for a job.And I went to talk tothe general counsel of Dow Jones, whom I knew. And this is themid ’80s and sort of a classic story of howwork got brought inside to big companies. He said, how much of yourwork are you doing for us? And I said about half. And he said, and inhours that would be? And I said about 1,000. And he said, doyou mind my asking what the firm ischarging us for that? Well, it wasn’t a secret. It was on the bills. And at that pointit was $250 an hour.So the firm was charging thema quarter of a million dollars a year for half of my time. This is 30 years ago. And he said I thinkI have a better idea. So that was sort ofan accident, too, because he hadn’t–they’d never had an in-house newsroom lawyer. But he realized he couldbuy 100% of my time for a heck of alot less than that. And then the managingeditor of the journal left– NormPearlstein, who’s now the editor in chief ofTime Inc. And Paul Steiger, who had been his deputy,became the managing editor. And the publisher,whom I had gotten to know through mylegal work, said to me, I think Paul needshelp down there running the news department as a thing. So I want you to go be assistantmanaging editor of the paper, essentially, managingeditor’s chief of staff. You know, accidents afteraccidents after accidents. I will just tell youone more much later, how I became the first generalcounsel of the Rockefeller Foundation.So I go to interview with thepresent of the Rockefeller Foundation, Judy Rodin, forthe job as vice president for communications,which was something that I had done at Dow Jonesand had some experience in. And we’re sitting there andshe says to me– at this point, I haven’t practiced lawat all for 14 years. And she says, how would you likealso to be the general counsel? And I said, youknow, I don’t know if you noticed on myresume, but I haven’t practiced law for 14 years. And she said, no, no, no,of course I noticed that. She said, so here’s what I know. She said, as it happens, Ihave two fairly close personal friends who are justices in theUnited States Supreme Court, which she did. She said, I don’t think it’sall it’s cracked up to be. Boom. Yes? JESSICA: Hello, Jessica[? Voskergen. ?] I’m a 3L. So I have two questions, bothrelating to content selection. First, ProPublica,as you said, receives sometimes very large donations. And I wonder what structuresare in place to make sure that these donors don’t haveundue influence over what investigations are made.And secondly, ProPublicacovers a wide breadth of issues but is leanly staffed. Investigations arevery time intensive. So I wonder how theorganization decides which investigations to follow. RICHARD TOFEL: OK, thoseare both great questions. On the first, therelationship between donors, it’s a very important issue. But I have actuallyfound in the years we’ve been doing this thatalmost all the answers to that come by analogy to theappropriate relationship between advertisers and thenews in the traditional media. Things that would beinappropriate for advertisers are generallyinappropriate for donors. And things that would beappropriate for advertisers are generally appropriate. Now, there are peoplewho don’t agree with that in our business. There are people who will takemoney to do things we will not. I mean, theprincipal distinction is we will not take moneyto do a particular story or a set of stories.Just like you would neverat any decent newspaper tell advertisers–somebody says, I want to advertise in theNew York Times business section on Sundays,and I would just like to know what’s going to beon the cover for the next four to six weeks. It’s actually a fairquestion for the advertiser in that it would berelevant to their business. And they may not be tryingto undermine your integrity, but there’s too great arisk that they would be, and they wouldn’t in amillion years tell you. We don’t take money for stories. We do take money to fundbeats– health care, education, even some beats thatyou would describe with greater specificity. So we’ve had a beatsupported by the Ford Foundation for a couple ofyears on inequality in race. But they had no idea untilthe stories were published that the first yearunder that beat, we decided to do work onhousing discrimination.And the second yearwe decided to do work on school resegregation. So I think that works. The related issueis the relationship between the governingboard, many of whom are donors, and the news. And there we’ve sort ofhad to forge our own way because this is sort of acase of first impression. Basically, we usethe same rules. And the criticalone is, although I work for thosepeople and so does my partner, Steve Engelberg,our editor in chief, we never tell them what we’regoing to publish until we do, at all. So our board chairmancalled me yesterday, who’s also our largest donorand our founding donor, and liked the story we did on ajuvenile facility in California that we published yesterday. And he knows that thefarthest he can go is he sends notesto people, trying to– because he’s also anactive fundraiser for us, thank goodness. And he said, when’s thenext big story coming? Because I don’t want tobombard people with notes.And I said next Wednesday. And that’s– I’m happyto tell you that. Next Wednesday. We’ve got a great storycoming on Wednesday. And in his case, because heknows the people involved, I started saying it’s somethingthat Ryan and T– and I get that– you know, who are twoof our reporters– and he goes, don’t tell me! I said, Herb, all I wasgoing to say is Ryan and T have been workingon this for months.That’s it. Because he understands I amnot supposed to tell him what it is about, and I never do. Second part of your questionwas how do we pick stories? That’s Steve’s departmentrather than mine. But the shortestanswer is we’re always looking to do storiesthat pursue our mission. So we’re looking for thingsthat other people are not writing about thatwe can write about, and where we think we have somechance to spur some change.And then we pick ourpartners based on that. Most of our major storieswe do publish with partners. We’ve had 120publishing partners over the years, 120 differentpublishing partners, which means prettymuch everybody in American journalismand which means you’ve got to be willing to workat least 120 different ways. But that’s OK. But it’s all– Ihope, and we try to tie it back to themission as much as we can. Yes? YASIN AL DEEK: Hi, myname’s Yasin Al Deek. I’m a second yearlaw student here. Thank you for taking thetime to come speak with us. RICHARD TOFEL: Thank you. YASIN AL DEEK: I wanted to ask aquestion in regard to the point that you had madeas a piece of advice to blossoming attorneysabout remembering the importance of being honestwhen speaking with reporters. And you had made a suggestionthat even if you do feel a certainpressure from clients or perhaps other attorneyswith whom you’re working, to not violate theethical obligation that you have to being honest.And so I wanted to justask you– many of us are ambitious and young, andwe’re certainly impressionable. And how do we preservethat integrity as we move into a field whereour successes in large part is dependent on our mentors? And how do we retainwhat Professor Tomiko Brown-Nagin wouldcall the courage to dissent in the workplace? And if you just hadsome advice that we could keep in mindas we move forward with our legal professions.RICHARD TOFEL: Yeah,that’s a heavy question. Well, I certainly deserve itfor having opened the subject. I guess the first thing ispick your mentors carefully if you’re serious about that. Because the onesyou really ought to be wanting to workwith and for probably won’t ask you to do that. But even if they are, they’llbe open to talking about it. And then it’s not so much, Ithink, the courage to dissent, although that can be certainlytrue in extreme cases, as just the somewhat lesser but stillreal courage to just push back, right? That says you know, if wedon’t want to tell them, why don’t we just tell themwe don’t want to tell them? I’ve spent a lot of timeas a student studying the presidency and the press.And I had theopportunity to work in the White House Press Officewhen I was very young, briefly. And I still believe–maybe because I was there at the time, butI actually think I could back it up– that thebest modern presidential press secretary was JodyPowell, who was President Carter’spress secretary and– for two reasons. The most important reason was hewas by far the press secretary closest to the President. So he knew the most. He basically knew everything. And the second thingwas– so some people would say, well, that couldbecome a problem, right? Because if you knoweverything, you know everything they want to know. And they know you know. And it wasn’t a problem forhim because almost every day at the White House pressbriefing– which then, thankfully was not broadcast,but it was still a well publicized session, and therewere transcripts being made every day– hewould say to them, I know the answerto that question, and I cannot tell you.People would justgo, you know, OK. Not that they gave upon trying to find out, but they weren’tgetting it from him. So I just think it’s smart. And I think people who thinkthey are smarter than that are usually actually not. WAIDE WARNER: Waide Warner,senior fellow in the Advanced Leadership Initiative. As a fellow baseballfan, I know you must know Branch Rickey’sfamous quote that luck is the residue of design. RICHARD TOFEL: Yes. WAIDE WARNER: Looking backat the arc of your career and the number ofaccidents you had, what was the organizingprinciple that helped you design andmake your own luck in those circumstances? RICHARD TOFEL: Wade, greatto see you and Cynthia. We were soccer parentstogether on a travel team. And for those ofyou who have done any of that when you were kids,that’s a big– and this travel team lasted a long time.So these people were familyto me for many years. You know, I think that thedesign, if you would call it that, was that everytime I got– I’m sorry, this is not goingto sound great here, but want to be honest with you. Every time I got toa fork in the road where it said go this way tospend more time with lawyers and this way to spendmore time with reporters, I took this way to spendmore time with reporters. I have a lot of good friendswho are in my law school class. Some of them even practice law. Many of them actuallypractice law. And they’ve donevery well with it. I mean, just in mysection, my roommate ended up being the generalcounsel of the SEC. And the guy I spent the mosttime with in the section at that time is theUnited States Attorney for the District of New Jersey.And Tim Cane is in theUnited States Senate. So they were wonderful people. But in general inlife, I find reporters to be more interesting thanlawyers most of the time. MARK KILSTEIN: Hi there. So jumping offyour last comment, I’ll introduce myselfas a journalist. My name is Mark Kilstein. My partner here isa 3L, a law student. But I’m a radio reporter, aradio producer for the BBC.And I know ProPublicahas done some really fantastic partnershipswith radio programs. And so a bit of apersonal question– I’m curious what yousee as the future of investigative journalismin the radio medium. There’s a lot oftalk about the future of investigative journalismin the digital age. Radio has somehow kindof bucked the trend. And, at least personally, I seeit as a thriving medium today, even though it is arather traditional medium.So yeah, I’d loveyour thoughts on that. RICHARD TOFEL: Wehave found that radio, interestingly– this surprisedme, at least going into it, that radio isenormously powerful as a medium forinvestigative journalism, AND frankly, muchmore than television. I’ve never been in theradio business myself, and so I’m not anexpert on this. And I’m not 100% sure that evenI know what I think about this. But here are somerandom thoughts. There is somethingabout radio that stays with people in a waythe television does not. Television, I think,unfortunately, in many cases is you laugh, you cry, andthen you change the channel. And it’s just over. We find radio moves peopleto action, and to thought, and to conversation much more. Second point– therehappens to be– so we’ve had a great experiencein PR and with others. I should not address this topicwithout briefly mentioning that I think that IraGlass individually– and I don’t know how many of youlisten to This American Life– is just a true genius, a word Itry not to throw around a lot, and is doing some of themost important journalism of any kind being done inthe English language today.And every time we workwith him, it seems that amazing things happen. And amazing things don’talways happen with our work. So I take it that it musthave something to do with him. And I’ll just giveyou one example. He came to us with an ideaabout five years ago and said, so I know all thepeople that lost money in the financial crisis. I’m interested inyour doing a story and then bringing it to usabout somebody who made money in the financial crisis. And we went off, and wethought that was a great idea. And we found thishedge fund, Magnetar, that had constructed derivativesthat were so successful on such a scale that ultimately weconcluded they had literally delayed the financialcollapse themselves, and then exacerbated it andcontributed quite materially to the failure of Merrill Lynchand a bunch of other things. And they had done this bycreating these securities– or causing to be created thesesecurities, which they then bet against, making a fortune,something that has ultimately been held to be notstrictly illegal, but certainly a little tricky. So we brought it back to Ira.And he goes, for some reasonI feel a musical coming on. Really? And then at the next meeting,he goes, I’ve got it. It’s the producers! And he was right. It was. And he commissioned fromRobert Lopez, who went on to write The Book ofMormon, a Broadway show tune to accompanythis story called Bet Against theAmerican Dream, which was the first time Ihad done prepublication review for a song. I will tell you, by the way,it’s pretty much the same except if you wantto change a word, you need another word ofthe same number of syllables that rhymes. And we ended up winningour second Pulitzer Prize off that story. So there is a levelof creativity, I think, also in thebest of radio today– to come back to yourquestion– that makes it just a wonderful medium for us. Yes? ELYSSA SPITZER: Hi, myname is Elyssa Spitzer.I’m a 1L. So I spent the yearbefore coming here at the Manhattan DA’s office andwas constantly stunned by how backwards the technology was. It was straight from the 1970s. To bring a caseto the Grand Jury, there’s sort of a yellow carbonslip, and then a pink one, and the different onesgo different places. And individuals havecase files that literally go in a cart thatgoes up and down the elevator to arraignments. Because you’ve seenan industry transition from that sort of paper files,handwriting mode to more digital information flow,et cetera, et cetera, I’m wondering what you thinkabout the legal profession and how that might happen here. Because it needs to. RICHARD TOFEL: Yeah,you know, of course, in the place wherethey have resources, it’s nothing like that, right? That’s not really,I think, a question about the legal profession.It’s a question about thefinancing of government. ELYSSA SPITZER: Sothat’s similar to what you’ve confronted? RICHARD TOFEL: Yeah. I haven’t been thereeven to visit in years. But I’d be verysurprised if Cravath has green and yellow andpink forms and files that move up and down theelevators as opposed to zipping from place toplace on shared drives and password-protected things. We woefully underfinancethe government. I mean, if youwanted to say what is the uber story ofprobably 90% of our stories, it’s a government agencyhas not been given the funds sufficient to do its own job. And here’s what results. I mean, of the stories we writeabout the government, that’s at some level the story. And we’ve been in thisphase is in this country. I think it’s a long-runhistorical phase, but I don’t think it’sthe nature of the beast.But for the last35 years, people have believed we spend toomuch on the government, except when they want toenjoy its benefits themselves in which case we’respending too little– too little on the programthat helps me, too much on all of the rest of it. And this is what you get. I mean, when I did spend thosemonths in the city trying to reorganize the citywelfare administration, one of the first questionswe asked them was, can we have a map of where allyour facilities are in town? No. They didn’t have it. Well, can we have a list,and we’ll make our own map? Uh, no. And so we went and created ourown list and made our own map. This is sort of unbelievable. My wife helped create somethingcalled [? Childstead ?], which is a fairly advancedcomputer system to track cases at the Agency forChildren Services in New York. But that was eight or nineyears ago, maybe 10 years ago. Before that, they were literallytracking child abuse cases on index cards. That was it. DEAN MINOW: So I have afollow-up to that question, because I thinkeverything that you say about theunderfunding of government sounds absolutely right.But there’s stilla further question about the disruptivechanges of doing business because of technology. And so that’s a lot of whyyour organization exists. And I’d be interested to knowwhat the crowd sourcing of data does or being ableto put data out. How do you dojournalism differently? And also, if youcould speculate back, what does that meanthat lawyers could do? Because simply digitizing whatlawyers have done historically isn’t taking advantage ofwhat the technology could be.And people are beginning tocrowd source contract language, for example. Or to meet the needsof low income people, to figure out ways thatyou can have remote advice, but also groups of peoplehelping each other, rather than one by one by one legal advice. RICHARD TOFEL: So two things. Crowdsourcing,per se, is tricky. And I think we’re still learninghow to do it effectively. The most effective experiencewe’ve had, I think, with it is in a formalsense with something we called Freedthe Files, where we did a bunch of reportingin early 2012 on the fact– records kept intelevision stations at the behest of the FCCon political advertising. And we and othersI think managed to pressure the FCCin the middle of 2012 into finally releasingsome of these records. But largely at theindustry’s behest, they then decided torelease them all in PDFs. So you basically couldn’tdo anything with them. But some of our technologyfolks said, you know, what we need to dois we need to review every one of these scores ofthousands of documents just to categorize them invarious ways and code them.We can’t do it, but it’sactually not hard to do. It’s just a question of time. So we asked people to helpus, and they devised a system. Please look at thisthing and answer these five questions about it. And they created– which themiracle part of this to me is they created a thingwhere it would serve up the document to you randomly. And then it wouldonly count the answer if another person who had beenserved up the same document randomly gave the same answersbecause you wanted to prevent people from gaming the system. And then it would download it. And we pulled in hundreds ofthousands of records that way and were able to do somevery important reporting. For instance, the beststory we got out of it was that we were able to provethat much before the election, that most of themoney being spent on both sides of the UnitedStates Senate race in New Mexico was dark money. And what that means,by the way, if you just think about it for amoment, is somebody’s going to be elected UnitedStates senator from your state, and you have no idea towhom they are indebted. And here’s the important thing. You have no idea. They know exactly who it is. So for that kind of thing,crowdsourcing is great. The original notions ofcrowdsourcing in journalism were, we’re going to askpeople to do journalism. And that is likecitizen brain surgery. Journalism, like anythingelse, like the law, it’s hard, and there are people whoare really good at it, but actually not all that many. And it takes sometraining and experience. So that stuff doesn’t work. Then to go backto the data point. I think what’s turnedout to be the most powerful is national databasesthat are localizable– if that is a word– where we caninvest and have a lot of time, a lot of resources,in creating something that tells a pictureacross the country, and we’ll write anational story about it. But then we’ve beenquite intentional, and I think we’ve learned howto do this pretty effectively.To tell local news organizationsand to help local news organizations, we create whatwe call Reporting Recipes and we have conference callsso that– for instance, we just did this withworkers’ compensation. We’re doing a lot of work rightnow on workers’ compensation. And the thrust of that workis basically to two effects. One, that there has been a verydramatic decrease in the payout through workers’ compensationin the last 10 or 15 years in this country,which means there’s a huge transfer of wealth goingon from workers to employers. Now, that may be good. It may be bad. You are entitled to yourown views about that, but it’s a fact. And it’s not a widelyrecognized fact. The second thing is thereare– because workers’ comp is a state by state system, thereare incredible disparities.If you lose anarm in this state, you get– I think itis 20 times as much as if you lose your armin the state of Alabama. Now that just makes no sense. And I think everyone agreesthat it makes no sense. Whether the numberin Massachusetts is the right number or not, wecould have a fight about it. But the real point onlocal localization, or whatever youwant to call it, is the Boston Globe or anybodyelse can do that story here in a day. To say here’s how Massachusettscompares to Rhode Island, Connecticut, Vermontand New Hampshire– boom, boom– andtake our year of work into a couple of reporterhours and produce a good story.And they’re doing it. And that makes a bigdifference, then, in the reach of the stories,the impact they have. It’s made a bigdifference, I think. Yes? JENNIFER CHUNG: I’m JenniferChung, second year law student I was wondering if you’d bewilling to talk about some of the stories that didn’tpan out and at what point you realized that astory wasn’t going to effect the changethat you were looking for or didn’t lead to somehypotheses you’d had originally. I don’t know howmuch you can tell us. RICHARD TOFEL: Sure. There are lots of storiesthat don’t– first of all, most stories don’tactually spur change.I mean, one of the criticalthings in our business, as in, I think,every business, is if you’re evaluatingyour own success, you have to havesome sense of how often you should be succeeding. You know, I’m abig baseball fan, so I sort of think aboutthis as batting average. I think it’s actually helpfulbecause for those of you who know baseball, and I’ll tryto make it so the rest of you can follow along, the bottomline here about baseball is if as a hitter if you cansucceed four times in 10, you’re the best there ever was. If you fail, that is to say,if you fail six times in ten, you’re the best there ever was. If you only can succeedtwo times out of 10, they will not letyou participate at the highest levels. So this is a very narrow range. They have a lot moreexperience because they’ve got 125 years and thousandsof people and all of that. We don’t know thatmuch, but I know enough to know thatin our business you will actually notsucceed most of the time.Philanthropy, for instance,is another business where you will not succeedby any reasonable notion most of the time. You have to knowthat to evaluate whether you’re succeeding. You also have to have some roughsense of how often should we be succeeding. So that’s one thing. We usually sort of pokearound a little bit before we make a majorcommitment to a story. If we do that, there’susually some story. It just may not be as gooda story as you thought. There are dry holes. There are more oftensort of quasi-dry holes, or stories where yougo, yeah, it’s a story, but it’s not the great storythat you thought it might be.That happens a lot. In terms of things youthought would have impact, I’ll just tell you very quickly. A story that I wascertain was going to have immediate impact wasthree and a half years ago, we did a complicated dataanalysis that proved, I think, mathematically thatthere is racial bias in the presidentialpardon system. And you are four times as likelyto get a presidential pardon if you’re white than ifyou are black, and did exactly the same thing andhad the same circumstances. And proving that wasvery hard because you had to normalizethis, and you had to get all the people whohad not gotten pardons.Anyway, it was a big thingand took a lot of work. But we did it, and nobodyhas really challenged the accuracy of that finding. And as you may know, thepresidential pardon process is basically the oneroyal prerogative– I think it’s the onlyone– in the Constitution. The President’s power iscompletely unreviewable. Just to give youan example of what that means, if Bill Clintonwent on television tomorrow and said, you know, I actuallytook money from Mark Rich to give him that pardon,nothing would happen. Nothing. The sole remedy forthat is impeachment. And he left thepresidency the day after he gave him the pardon. So I thought, well,there’s only three people that are going to reallyhave an impact on the story. And we managed to get thestory on the front page of the Washington Post. They were our partner. And the three people are AfricanAmerican lawyers, most of them graduates of this institution–the President of the United States, the First Ladyof the United States, and the Attorney Generalof the United States.And I thought, well,this is a lay-up. They’ve read it. I knew they read it. We took steps to make surethey actually read it. And they did. And nothing happened. Because, we are told,the political people came in and said we’re tooclose– this is late 2011. We’re too close to theelection to do something this high profile onbehalf of black people. So they set in motiona review process. And they will, I believe,fix it before they leave.But it may be,literally, as they’re going to turn out the lights. That’s another thingabout spurring change. Sometimes it takes a long time. DEAN MINOW: Well,we could continue to talk with you a long time. But we’re going tostop the formal session and just say thank you. But if you could hang aroundand talk, that would be great. RICHARD TOFEL: Yeah, great. Thank you. [APPLAUSE] .