Academic journal article Vanderbilt Law Review

The Right of Access: Is There a Better Fit Than the First Amendment?

Academic journal article Vanderbilt Law Review

The Right of Access: Is There a Better Fit Than the First Amendment?

Article excerpt

I. INTRODUCTION

James Madison once said, "a popular Government, without popular information, or a means of acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."1 For almost forty years, the Supreme Court has anchored the press's and public's right of access to government proceedings and information in the language of the First Amendment.2 Grounding the right of access in the language of the First Amendment is unsatisfactory not only because it goes beyond the scope of traditional First Amendment values, but also because it does not provide access to the amount of information necessary to ensure the proper functioning of our democratic government. A more intellectually honest, and ultimately more persuasive, conception of the right of access would recognize it as a systemic right, similar to the right to vote, that is both inherent in and essential to a republican system of self-government. Since an informed electorate is essential to the proper functioning of a democracy, access should be protected to the same extent as other systemic rights.3 Furthermore, courts have recognized that access serves several important functions in a democracy. Access acts as a check on the government, ensures that government does its job properly, enhances the perception of integrity and fairness in government proceedings, and most importantly ensures that the "individual citizen can effectively participate in and contribute to our republican system of self-government."4 These functions demonstrate the importance of protecting the right of access and the "openness" that it creates, but treating access as a speech right that is protected by the First Amendment fails to recognize that the right of access is more fundamental, that it is part of the foundation upon which the First Amendment is built.

Part II of this Note explores the Supreme Court's historical definition of the right of access in First Amendment terms. Part III argues that the Court's traditional definition is unsatisfactory because it is inconsistent with other First Amendment doctrine. Consequently, the traditional definition does little to secure the ability of the press and the public to access government-held information. Part IV proposes an approach under which the right of access is recognized as a systemic right that is inherent in, and essential to, our established constitutional structure. Parts V and VI examine more recent language in Supreme Court opinions and in several "right to know" statutes suggesting that the right of access is a systemic right. Finally, Part VII considers some modern restrictions on the right of access following the September 11, 2001, terrorist attacks and suggests that these restrictions should be tailored to address the importance of the right of access in a democracy.

II. THE SUPREME COURT AND THE RIGHT OF ACCESS

The Supreme Court first considered the right of access not in the context of the constitutional protection of the press and the newsgathering process, but rather in terms of citizens' general right to access information regarding the functioning of the national government. For example, in Zemel v. Rusk, the petitioner raised a First Amendment challenge to the Secretary of State's refusal to validate his passport for travel to Cuba claiming the "travel ban is a direct interference with the First Amendment rights of citizens to travel abroad so that they might acquaint themselves at first hand with the effects abroad of our Government's policies, foreign and domestic, and with conditions abroad which might affect such policies."5 While the Court acknowledged that the travel ban restricted the free flow of information, it rejected the argument that citizens have a constitutional right of access emphasizing that "[t]here are few restrictions on action which could not be clothed by ingenious argument in the garb of decreased data flow. …

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