More Than Mere "constitutional Window Dressing": Why the Press Clause Should Protect a Limited Right to Gather Information

• Publication year: 2021

98 Nebraska L. Rev. 188. More than Mere "Constitutional Window Dressing": Why the Press Clause Should Protect a Limited Right to Gather Information

More than Mere "Constitutional Window Dressing": Why the Press Clause Should Protect a Limited Right to Gather Information

Mallory B. Rechtenbach

TABLE OF CONTENTS

I. Introduction .......................................... 189

II. Background ........................................... 192
A. Purpose and Role of the First Amendment ......... 192
B. The Court's Expansion of the First Amendment . . . . 197
1. The Developing Interpretation of Prior Restraints ..................................... 197
2. The Expanded View of "Speech" ................ 199
C. Current Interpretation of the Right to Gather Information ....................................... 201
1. The Supreme Court's Principles in Access and Newsgathering Cases .......................... 201
2. The Statutory Right to Gather Information ..... 204

III. Analysis .............................................. 205
A. The First Amendment's Scope Should Be Interpreted Broadly and Include Protection of Corollary Rights ................................... 208
B. Argument for a Limited Right to Gather Information Under the First Amendment .......... 209
1. Restrictions on Newsgathering as a Form of Prior Restraint ................................ 209

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2. The First Amendment Creates Protection for Newsgathering that is Directly Tied to Expression .................................... 211
3. The Structural Model of the First Amendment Requires Protection for Newsgathering in Order to Foster Intelligent Self-Government .......... 213
C. Why the FOIA is Not Sufficient to Protect the Free Flow of Information ............................... 216

IV. Conclusion ............................................ 219

I. INTRODUCTION

The Constitution was intended to be an agreement made by the people to govern themselves.(fn1) The Framers eschewed what they considered tyranny: a government shrouded in secrecy.(fn2) In what was considered a radical experiment, the Framers, through the Constitution and the Bill of Rights, constructed an open political process rooted in democratic theory.(fn3) One leading First Amendment theorist stated, "public discussions of public issues, together with the spreading of information and opinion bearing on those issues, must have a freedom unabridged," and "though they govern us, we, in a deeper sense, govern them. Over our governing, they have no power. Over their governing we have sovereign power."(fn4)

For the first time in history, political theorists recognized that the electoral process was intimately linked to free expression.(fn5) Freedom of speech imparts information to the electorate, which allows the people to wisely choose their representatives.(fn6) Popular government requires popular information, and freedom of expression-the "principal pillar in a free government"-is the means to achieve these indispensable

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ends.(fn7) Freedom of the press was intended to fulfill this specialized role; the freedom to publish using the printing press would ensure a popular government by informing the voters of a candidate's positions and record.(fn8) The "great bulwark of liberty"(fn9) was intended to be completely protected from regulation, as the federal government could exercise only enumerated powers.(fn10)

However, over two centuries later, there is still government control over the press-it has simply evolved. In 1946, President Harry S. Truman issued an executive order creating a uniform system of classification within the Executive Branch.(fn11) The categories of classification were subsequently expanded to "top secret," "secret," "confidential," and "restricted."(fn12) The power of the Executive Branch to classify documents and the scope of what can be classified has ebbed and flowed through different administrations.(fn13) While overt censorship, licensing, and taxing are no longer utilized to muzzle the press, unelected bureaucrats exploit the classification system to prohibit information from reaching the public sphere. Rather than freely disseminating government information to the polity, the prevailing attitude became "when in doubt, classify."(fn14) In the past, information was readily available, but freedom to express opinions was not yet secured. Now, there is essentially unqualified protection for opinions, but information is not so easily accessible.

The foundation of the Press Clause is a prohibition on prior restraints, which are restrictions on speech before its publication.(fn15) In Near v. Minnesota ex rel. Olson,(fn16) the Supreme Court made clear that under the First Amendment the government cannot censor publications through the use of prior restraints.(fn17) Beginning shortly thereafter, and escalating at a frightening pace since, the Executive Branch

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has avoided the prohibition on direct prior restraints by wielding the classification system to stifle information at the source.(fn18)

Justice Stewart, in his 1971 concurring opinion in the Pentagon Papers case, wrote, "[f]or when everything is classified, then nothing is classified, and the system becomes one . . . to be manipulated by those intent on self-protection or self-promotion."(fn19) Almost fifty years later, even in the world of the 24/7 news cycle, the American electorate has been largely cut off from information needed to fulfill its constitutional role of self-government due to the Executive Branch's culture of classification.

There are two consequences when government restricts access to information. First, the American electorate does not have the requisite information necessary to make enlightened decisions at the polls. When the Executive Branch has virtually unbridled power to classify, suppress, and withhold information, such power all but extinguishes the fundamental constitutional check: governing by the consent of the governed.(fn20) This "paper curtain" has created a direct barrier between a purportedly representative government and the people it represents.(fn21)

The second consequence of restricted access to information is the ability of government officials to shape public debate and, thus, policy through selectively leaking the information favorable to their position.(fn22) Walter Lippman once wrote, "men who have lost their grip upon the relevant facts of their environment are the inevitable victims of agitation and propaganda. The quack, the charlatan, the jingo and the terrorist can flourish only where the audience is deprived of independent access to information."(fn23) By only publicizing information on one side of the debate, government officials are able to put their thumb on the scale of political discourse.

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While the First Amendment affords the press nearly complete autonomy to publish information, it affords virtually no protection to the press for newsgathering-creating a dichotomy between publication and newsgathering.(fn24) But the connection between gathering and publishing is self-evident: before one can publish information, one must gather information. The Supreme Court has stated in dicta that "without some protection for seeking out the news, freedom of the press could be eviscerated."(fn25) Yet, the current jurisprudence of the Court declines to recognize the connection between gathering and publishing, essentially holding that gathering is sufficiently "prior" to publication to permit restraints.(fn26) However, the right of the press to publish information is unavoidably impeded when the government inhibits the ability to gather information, which in turn prevents the electorate from intelligent self-government.

In order to give full effect to the First Amendment, newsgathering must be given some limited protection. This Comment begins from an originalist perspective of freedom of the press, then seeks to apply the underlying principles to current issues involving newsgathering in order to facilitate a revival of the Press Clause.(fn27) Part II will begin by examining the purpose and role of the First Amendment's Press Clause. It will then trace the current jurisprudence on newsgathering and provide an overview of the Freedom of Information Act (FOIA).(fn28) Part III will begin by delineating a broad interpretation of the First Amendment that encompasses corollary rights. It will then argue for a limited right to gather information under the First Amendment grounded on three current First Amendment doctrines: (1) restrictions against prior restraints; (2) protection for conduct necessary for expression; and (3) a structural model of the Press Clause which fosters intelligent self-government. Finally, it will discuss why the current protection under the FOIA is insufficient.

II. BACKGROUND

A. Purpose and Role of the First Amendment

"Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ."(fn29) As simple as these words appear, their meaning

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was not expressly manifested at the time of adoption.(fn30) Alexander Hamilton in Federalist No. 84 wrote, "who can give [freedom of the press] any definition which would not leave the utmost latitude for evasion?"(fn31) James Madison's original proposal stated, "the people shall not be deprived or abridged of the right to speak, to write, or to publish their sentiments; and freedom of the press, one of the great...