Illegal secrets.

• Author: Condon, Jenny-Brooke
• Position: When executive action illegality should be precluded from attempts to maintain secrecy - IV. The Law of Secrecy and Transparency through Conclusion, with footnotes, p. 1135-1168

4. The Law of Secrecy and Transparency

   Analyzing whether the law adequately interrogates and exposes illegal secrets requires an initial review of the constitutional and statutory law addressed to government secrecy and the public's right to know. As described next, the relevant law recognizes the central role in democracy of citizen-driven checks on government misconduct.

   1. Information Access and the Constitution

      The extent to which the Constitution requires government transparency and public access to government information remains a relatively unsettled area of constitutional law. The Constitution does not expressly protect a public right to access government information or to know what the government is doing. (175) Theorists, beginning most famously with Alexander Meiklejohn, have long suggested, however, that the First Amendment's primary purpose is to ensure that the public can make informed judgments and meaningfully self-govem. (176) Under this view, the express guarantees of the First Amendment might imply a right to government information in order to promote informed deliberation and public participation in democracy. (177)

      Other theorists, chief among them Vincent Blasi, have argued that the primary function of the First Amendment is to provide a check on government abuse and misconduct. (178) Under Blasi's "checking theory" of the First Amendment, speech relating to "official misconduct," "abuse of power," and "breaches of trust by public officials" should receive the greatest constitutional protection. (179) According to Blasi, fostering this citizenry-driven check was likely the concern "uppermost in the minds of the persons who drafted and ratified the First Amendment." (180)

      Both theories provide support for the notion that the Constitution protects the public's right to access government information and therefore limits state secrecy. As a general matter, however, courts have not recognized this sort of First Amendment right to access secret government information. (181) There are two areas of qualified exception. The Supreme Court has been solicitous of the public's ability to acquire government information when members of the public seek access to judicial proceedings (182) and when restrictions on the press work to hinder the public's ability to obtain and exchange information. (183) Concerns about the dangers of illegal secrets resonate with the Court's rationale in both categories of First Amendment cases. But when addressing the government's statutory obligations regarding the release of government information, courts have typically not invoked First Amendment concerns, nor, as discussed in Part V, have they been particularly suspicious, or demanding in their assessments, of illegal secrets.

      1. Public Access to Judicial Proceedings

         The high-water mark in Supreme Court jurisprudence regarding access to government information was a case that did not directly involve government wrongdoing, but the Court's reasoning nevertheless recognized the role of the citizenry in checking government abuse and overreaching. In Richmond Newspapers v. Virginia, (184) the Supreme Court held that the First Amendment protects the right of members of the public to attend criminal trials in order to "give meaning to" the explicit guarantees of freedom of speech and of the press. The plurality decision rested heavily upon "the long history of trials being presumptively open" and the role of public access as an "important aspect" of the trial process itself. (185) But, importantly, the decision also emphasized the broader self-governing principles and checking functions served by government openness and public access to government information.

         Specifically, the Court reasoned that like public access to any public space, court room access allows the public "to listen, observe, and learn" and thereby meaningfully exercise First Amendment rights. (186) The Court further noted that the public's presence serves as a check on the judicial system, "enhancing] the integrity and quality of what takes place" during trial. (187)

         Some members of the Court seemed particularly receptive to recognizing a broader First Amendment right of access. Justice Brennan's concurring opinion, for example, referred to the right at issue as a right to access "information," not merely the right to attend "proceedings." (188) Expressly embracing a Meiklejohn view of the First Amendment as an essential instrument of democracy and self-government, Justice Brennan reasoned that the First Amendment "has a structural role to play in securing and fostering our republican system of self-government." (189) In Justice Brennan's view, that structural role not only promotes the robust public debate essential to democratic government, it presupposes an informed citizenry as a necessary instrument of that debate. (190)

         While both the plurality opinion and Justice Brennan's concurrence thus provided a foundation for recognizing a broader constitutional right of public access, (191) the Court has not embraced this view outside of matters involving access to judicial proceedings. (192) Indeed, the only time the Court has addressed the question outside of that context, it found that the First Amendment did not compel a public right of access.

         Specifically, in Houchins v. KQED, (193) decided three years prior to Richmond Newspapers, the Court rejected the notion that the First Amendment granted the press a right to access a local jail. The Court concluded, "[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." (194)

         In the lower courts, the First Amendment rarely makes an appearance in disputes involving access to government information. But when it does, courts are quick to reject claims that the First Amendment compels public access to government information, reasoning that Richmond Newspapers and its progeny were limited to judicial proceedings. (195) And even when the information sought to be exposed pertains to alleged government misconduct, courts generally give short shrift to the First Amendment policies animating the Richmond Newspapers line of decisions. (196)

         The same is true of Supreme Court doctrine addressing the First Amendment rights of government whistleblowers. Although the Court has protected the right of government employees to speak as citizens, in Garcetti v. Cebados, (197) it held that "the Constitution does not insulate" public employees from discipline by their employers due to speech made "pursuant to their official duties." The Court thereby closed the door on First Amendment protections for a great deal of government whistleblowing, irrespective of whether the statements, as in Garcetti, related to misconduct or potential misconduct by government officials. (198)

      2. Press Limitations as Public Information Restrictions

         Though the Supreme Court has stated that the "Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act," (199) the Court has recognized the public's interest in accessing information about government, albeit in an indirect and limited way. When the Court has struck down restrictions on the press under the First Amendment, it has cited the creation of an informed electorate as a primary purpose of the Amendment and recognized the public's role in checking abuse and government mistakes. (200)

         For example, in Near v. Minnesota, (201) the Court noted "the primary need of a vigilant and courageous press" to respond to the growing "opportunities for malfeasance and corruption" in public life occasioned in part by "unfaithful officials" and "official neglect." Similarly, in Grosjean v. American Press Co., the Court reasoned that "since informed public opinion is the most potent of all restraints upon misgovemment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern." (202) The Court echoed its conception of the First Amendment as "a powerful antidote" to government abuse of power in Mills v. Alabama, (203)

         Although these decisions endorse a "checking theory" of the First Amendment that is arguably supportive of a broader constitutional right to access government information, this line of cases has not influenced the jurisprudence addressing public access to government information based upon First Amendment claims any more so than the Richmond Newspaper line of cases. Yet, given the public's recognized role in curbing government wrongdoing, a constitutional argument for exposing illegal secrets might find greatest support in this corner of First Amendment doctrine.

      3. Secrecy as Constitutional Power

         Just as the Constitution does not expressly address public access to government information, it also does not expressly provide for government secrecy. (204) As a purely textual matter, the Constitution addresses secrecy only in two limited means. First, the Constitution provides that both chambers of Congress shall publish a journal of their proceedings "excepting such Parts as may in their Judgment require Secrecy." (205) Second, the Constitution requires "a regular Statement and Account of the Receipts and Expenditures of all public Money" to be "published from time to time." (206) The Court of Appeals for the D.C. Circuit has interpreted the qualified nature of the latter provision as authorizing "secret expenditures for sensitive military or foreign policy endeavors." (207) Given the limited discussion of secrecy in the Constitution, those who argue that the Executive has the prerogative to operate with robust secrecy often ground such arguments in the President's constitutional authority in the area of foreign affairs and national security. (208)

         Courts often accept these arguments, viewing the Executive's responsibility over foreign affairs and national security as providing a concomitant...