PRESS AND PUBLIC ACCESS TO THE JUDICIAL PROCESS, RECORDS, PLACES, AND MEETINGS
My relationship doesn't fall under the Freedom of Information Act. I keep it to myself I don't think it's too much to ask.
-- Actress Julia Roberts1
The First Amendment protects the press in two important areas. First, the government cannot interfere with the publication of material except under unusual circumstances, such as when national security is at stake. Second, publishers generally do not have to fear criminal sanctions. However, the U.S. Supreme Court has never explicitly recognized a First Amendment right to gather information.
In those rare instances in which the Court has enunciated a right of the media to have access to information, places, or events, such criminal trials, the Court has done so on the grounds that the press acts as a surrogate for the public. The Court clings to the principle that the press can claim no greater rights of access than those afforded the public under the U.S. Constitution. Thus, the press faces the unfortunate dilemma of having broad freedom to publish but considerably less freedom to ferret out the truth. The situation may be due to the fact that the press at the time the Constitution was written consisted primarily of "party organs" financed by political and other special interest groups that had little concern with objectivity, fairness, and truth. They were simply seeking to inform and influence their constituents and criticize their opponents, not necessarily to serve as a watchdog over the government.
In the 1970s, the doors to records, places, and especially the judicial process began to open, thanks to a series of U.S. Supreme Court rulings and a flurry of state and federal freedom of information statutes. This chapter reviews the progress as well as the limits journalists face in seeking information. It also explores the parallel ethical problems that sometimes call for self-restraint even when the law permits access and disclosure.