GOVERNMENT SECRECY

The first amendment guarantees of freedom of speech and freedom of the press are essential to democratic rule because they protect the right to communicate and receive information needed for self-government. Self-government might seem to require that "the public and the press" also enjoy "rights of access to information about the operation of their government," as Justice john paul stevens stated in richmond newspapers v. virginia (1980). Yet, despite its broad protection of speech and the press, the Constitution imposes meager limits on government secrecy. Judicial recognition of a right to know generally has been limited to the right to learn what others may choose to disclose and not a right to know what the government elects to conceal.

The most prominent right of access to an official event recognized by the Supreme Court is the right to attend criminal trials and proceedings. Even here, however, early signs were inauspicious. In gannett co. , inc. v. depasquale (1979) a newspaper relied on the Sixth Amendment to require a judge to open pretrial hearings over objections from the accused and prosecutor. The Sixth Amendment guarantees "the accused … the right to [a] public trial." The Court rejected the newspaper's argument on the ground that the amendment gave the public no "right … to insist upon a public trial."

A year later, after much criticism, a fragmented Court found such a right in the First Amendment. In Richmond Newspapers the trial judge had closed a murder trial at the defendant's request. Chief Justice warren e. burger, writing for himself and Justices byron r. white and John Paul Stevens, acknowledged that the First Amendment did not explicitly mention a right of access to governmental functions. But he found a right to attend criminal trials "implicit in the guarantees of the First Amendment." He emphasized that other "unarticulated rights" had been found implicit in the Constitution, including the right of association, the right of privacy, and the right to travel. The chief justice also cited the ninth amendment, which he said was adopted "to allay … fears … that expressing certain guarantees could be read as excluding others."

Justice william j. brennan (joined by Justice thurgood marshall) took a broader view of the right to government information, as did Justice Stevens in a separate opinion. For Justice Brennan, the First Amendment had "a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is [the] assumption that valuable public debate … must be informed." His structural analysis extended to "governmental information" generally, not only criminal trials, with the "privilege of access … subject to a degree of restraint dictated by the nature of the information and countervailing interests in security or confidentiality." Justice william h. rehnquist alone dissented.

The Court has since relied on the First Amendment to invalidate a law that excluded the press and public during the trial testimony of a minor alleged to be the victim of a sexual offense in globe newspaper company v. superior court (1982); to overturn a trial court's secret examination of prospective jurors in Press-Enterprise Co. v. Superior Court (1984); and to uphold public access to a pretrial hearing at which the prosecution must prove the existence of probable cause to bring a defendant to trial in Press-Enterprise Co. v. Superior Court (1986). In each case, the Court said that the interest in public access could be out-weighed in particular cases by demonstrated need for exclusion.

Beyond criminal proceedings, the argument for public access to government information has fared poorly. After suggesting in branzburg v. hayes (1972) that "news gathering is not without its First Amendment protections," the Court has recognized almost none. In Houchins v. KQED, Inc. (1978) the Court said that the Constitution accords the press no greater rights than it gives the public generally. But some members of the Court, notably Justice Stevens, have argued that the press should nonetheless receive greater access "to insure that the citizens are fully informed regarding matters of public interest and importance." The seven Justices participating in Houchins could not agree on a majority opinion, but a combination of views granted the press more frequent visits to a local jail than the public enjoyed and the right to bring recording equipment, which the public could not. But journalists had no right to enter a problem area of the jail or to interview randomly encountered inmates.

The Supreme Court has not recognized a First Amendment right of access to civil trials, although individual Justices have supported one, as have lower courts. A right of access in criminal matters is easier to uphold for two reasons. First, the Sixth Amendment, although not the source of an access right, already contemplates constitutional limits on societal efforts to close criminal proceedings. No equivalent limit exists for civil matters. Second, when the Constitution was adopted, "criminal trials both here and in England had long been presumptively open," as Chief Justice Burger pointed out in Richmond Newspapers.

A right of access to fiscal information would seem to reside in the accounts clause of the Constitution, which provides that "a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time." Even if this provision does guarantee fiscal information, it is not clear who might be able to enforce it. In United States v. Richardson (1974) a taxpayer challenged the government's failure to disclose the CIA budget. The Court refused to address the merits of the challenge because the taxpayer lacked standing to assert it. Taxpayer status did not confer a right to sue.

Judicial and congressional subpoenas would seem one way to require the executive branch of government to produce information. But a constitutional executive privilege of uncertain dimension will sometimes entitle the President and other executive officers to maintain the secrecy of their communications by resisting such subpoenas. united states v. nixon (1974) recognized a qualified executive privilege, but declined to apply it to protect the President's Watergate tapes.

freedom of information acts afford the single best route around official secrecy. These acts, which exist at the federal level and in many states, guarantee access to a great deal of information. However, the guarantee is legislatively, not constitutionally, created.

Stephen Gillers
(1992)