Although information has played a pivotal role in the affairs of humankind since the dawn of civilization, the notion of access to information as a civil right is a uniquely modern invention. But based upon the liberal concepts of the autonomy of the individual and the sovereignty of the people in politics, access to information is an organizing principle of democratic societies. Cato’s letters on ‘‘Freedom of Speech,’’ published in England prior to the American Revolution, energized the Framers of the First Amendment with the assertion that it ‘‘ought to be the Ambition, of all honest magistrates, to have their Deeds openly examined, and publicly screened.’’ James Madison echoed these sentiments, remarking that the right to ‘‘freely examine public characters and measures, and of free communication thereon’’ was ‘‘the only effectual guardian of every other right.’’
However, since most citizens have neither the time nor inclination to attend public meetings, inspect public records, or personally cultivate a familiarity with newsworthy events, the media are the surrogates through which the individual citizen’s right to know is vindicated. The media’s legal and philosophical claim to a right of access to information may properly be characterized as a civil right because of its derivation from the right of the public generally to receive ideas, opinions, and facts that make their participation in community affairs and democratic selfgovernance meaningful. While there are many theories undergirding freedom of expression, two in particular are pertinent to the media’s right of access to information. The marketplace model, which is reflected in Justice Holmes’s famous declaration in Abrams v. United States (250 U.S. 616, 1919) that ‘‘the best test of truth is the power of the thought to get itself accepted in the competition of the marketplace,’’ implies a right to gather information to enhance the quality of marketplace discourse. Similarly, the democratic model, often associated with Professor Alexander Meiklejohn, values speech because it is essential to self-government, which depends upon an informed electorate that has access to a diversity of ideas and opinions.
Thus, the right of access to government-controlled information is a natural corollary to the political purposes of the First Amendment. Although the Supreme Court first recognized the essential link between the First Amendment and self-government as early as 1936 (Grosjean v. American Press Co., 297 U.S. 233, 1936), the Court has been reticent in extending a constitutional right of access to a broad spectrum of government information and institutions. The Court has acknowledged that ‘‘news gathering is not without its First Amendment protections’’ (Branzburg v. Hayes, 408 U.S. 665, 1972), but has not clearly defined the parameters of this rather ambiguous affirmation. The seminal case recognizing the media’s right of access is Richmond Newspapers v. Virginia (448 U.S. 555, 1980), in which the Court recognized a right to attend criminal trials. The Court subsequently extended this access right to other judicial proceedings, but a right of access to most other public bodies and official records remains primarily a function of legislatively enacted public records and ‘‘sunshine’’ (open meetings) laws. Such access is thus a product of the democratic process, but it can be limited in the same manner.
LOUIS A. DAY
References and Further Reading
Cases and Statutes Cited
See also Abrams v. United States, 250 U.S. 616 (1919); Access to Government Operations Information; Access to Judicial Records; Access to Prisons; Branzburg v. Hayes, 408 U.S. 665 (1972); Cameras in the Courtroom; Free Press/Fair Trial; Freedom of Information Act (1966); Freedom of Information and Sunshine Laws; Media Access to Judicial Proceedings; Media Access to Military Operations; Pell v. Procunier, 417 U.S. 817 (1974); Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980); Saxbe v. Washington Post, 417 U.S. 817 (1974)