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Home > Publications > Quill > Reimagining access rights under the First Amendment



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Thursday, November 2, 2017
Reimagining access rights under the First Amendment

By Jonathan Peters

We are living through an anti-openness renaissance.

In June, on the eve of the special election in the Georgia Six, as it came to be known, Democratic candidate Jon Ossoff excluded a reporter for the conservative Washington Free Beacon from a campaign event, while Republican candidate Karen Handel gave the same treatment to a reporter for the liberal site ThinkProgress.

In May, President Donald Trump did not hold a single press conference during a nine-day trip to Europe and the Middle East, and weeks earlier he threatened to cancel all White House press briefings. Around the same time, Secretary of State Rex Tillerson met with the local press during a trip to Saudi Arabia, but the U.S. press was neither invited nor notified. Oh, and West Virginia police arrested a reporter at the state capitol who followed Health and Human Services Secretary Tom Price through the hallways and asked him whether domestic violence would be a pre-existing condition under the GOP’s health care legislation.

But that’s not all.

In February, then-White House press secretary Sean Spicer excluded from an off-camera briefing journalists for The New York Times, BuzzFeed News, CNN, the Los Angeles Times, Politico and The Huffington Post, among others. Both the Associated Press and Time magazine protested by refusing to attend, and CNN tweeted that the exclusion was an "unacceptable” move by the White House and appeared to be “how they retaliate when you report facts they don't like.” Spicer said he had to leave out those organizations because of space constraints, after inviting other organizations new to the White House, such as Breitbart and One America News Network.

Indeed, it’s more the rule than the exception that government officials, from presidents to school board members, try to parry the press and limit their exposure. That has long been a hallmark of public-affairs journalism.

And before that, some federal agencies directed their employees not to release information about their programs and activities to the press and public. For example, the AP obtained an email sent to Environmental Protection Agency staff after the inauguration that set out prohibitions on press releases, blog posts and social media updates. Similarly, the U.S. Department of Agriculture told its research service not to release “public-facing documents,” including “news releases, photos, fact sheets, news feeds and social media content.” The administration framed those actions as pauses needed to give the agencies, under new leadership, the time to settle in.

The list goes on. This is just a sample of recent anti-openness incidents, and to be clear: Trump didn’t create this renaissance. He and his aides have contributed to it in dramatic and significant ways, but it has been developing for years. President Barack Obama famously promised to run the “most transparent” administration in U.S. history, but his record was mixed. His administration spent, in its final year, a record $36.2 million on legal costs to defend FOIA denials, and it aggressively used the state secrets privilege, all while prosecuting an unprecedented number of leakers under the Espionage Act.

Before that, the Bush administration was pathologically secretive, circulating a memo after the 9/11 attacks, for example, suggesting that executive-branch agencies should use the Freedom of Information Act’s exemptions to deny any requests they could. And to a lesser extent, presidents Clinton, Bush, Reagan, Carter — and beyond — all made efforts to minimize their public scrutiny.

Indeed, it’s more the rule than the exception that government officials, from presidents to school board members, try to parry the press and limit their exposure. That has long been a hallmark of public-affairs journalism.

SPJ has been studying the broader problem of censorship by public information officers, too, which is the government practice, seemingly on the rise, of prohibiting public employees from talking with journalists in the absence of PIO permission and/or consultation.

“Whether it’s being told to call a general communications line, contact a spokesperson or send questions through a public information officer, in many instances, journalists are not allowed to speak to people intimately involved in the issues they cover,” according to SPJ’s webpage on PIOs.

SPJ has sponsored a series of surveys conducted by Carolyn Carlson, an associate professor of communication at Kennesaw State University, that showed how pervasive the PIO controls have become. Here are two of the findings:

First, 75 percent of reporters who cover federal agencies must get approval from PIOs before interviewing agency employees. Second, 40 percent of PIOs at various levels said they have blocked specific reporters from talking to employees because of problematic coverage.

SPJ sent letters to the White House — first during Obama’s presidency, then Trump’s — expressing concerns about such practices. It also led a coalition of journalists to meet with Obama’s press secretary in 2015. The coalition was promised a response but never got one.

All of which has major implications not only for journalism but also for public understanding of government activities. News organizations can’t fulfill their democratic role — of helping people participate in public life and be engaged — if they lack the access needed to report meaningfully on their communities. It’s untenable for reporters to be frozen out of interviews, press briefings, campaign events and more. But what can be done? Is it too late to reverse these trends?

A recent Knight Foundation study found that half of FOI experts believe access has gotten worse over the past four years, and 90 percent believe access will get worse under Trump. And public opinion of the press is at historic lows, making it all too easy to snub journalists and deprive them of the access they need to do their jobs. So is there any way left to redress the anti-openness renaissance?

The answer might be a reinterpretation of the First Amendment.

MEANINGFUL ACCESS AND EFFECTIVE NEWSGATHERING

Public-affairs reporting is facilitated by a complex system of access rights, derived from state and federal public-records laws and open-meetings laws, and from judicial recognitions of access rights under the First Amendment. For example, the federal Freedom of Information Act, signed into law in 1966, enables reporters and citizens alike to request and obtain agency records that shed light on government activities. And the federal Government in Sunshine Act, signed into law in 1976, requires various commissions and agencies to hold their official meetings in public.

States have their own versions of such laws. They’re all designed, at least in theory, to protect transparency in service of accountability.

The First Amendment is a fickler source of access rights. In the 1972 case Branzburg v. Hayes, the Supreme Court held that there was no general First Amendment right for a reporter to refuse to testify before a grand jury about his or her confidential sources, an obvious blow to the theory that the First Amendment provided newsgathering rights. However, Justice Byron White, writing for three other members of the court, reasoned that “without some protection for seeking out the news, freedom of the press could be eviscerated.”

The problem is that the court did not define or discuss what it meant by “some protection,” and White’s comment was dictum, a legal term for a statement that was not essential to a decision and thus not authoritative.

Over the next six years, the court seemed to reinforce the idea that the First Amendment played an insignificant role in guaranteeing access rights — in three cases exploring whether journalists had the First Amendment right to gather news in prisons. In the 1974 cases Pell v. Procunier and Saxbe v. Washington Post Co., the justices ruled that journalists had no special right of access to prisons to conduct interviews with specific inmates. Just four years later, in the case Houchins v. KQED, the court upheld restrictions on prison visits applied to a TV station that wanted to see a particular block where an inmate committed suicide.

Chief Justice Warren Burger, who wrote the opinion, observed, “Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control.”

But then, in 1980, in a case many commentators hailed as the genesis of a constitutional “right to know,” the court appeared to reconsider some of the logic of Pell, Saxbe and Houchins — ruling in Richmond Newspapers v. Virginia that the press and public have the First Amendment right to attend criminal trials. Since then, the justices explicitly have recognized access rights in multiple cases, but each one involved a judicial proceeding. In other contexts, constitutional access rights are less clear, and the Supreme Court’s inattention to this area and analytical inconsistency have left the lower courts to do the hard work.

A recurring question is whether a journalist has a First Amendment right of access to information or places that are closed to the public but open generally to the press — and so far the lower courts have converged around the principle that such a right exists. The leading case to recognize it was Sherrill v. Knight, decided in 1977 by the influential U.S. Court of Appeals for the D.C. Circuit.

Sherrill was a writer for The Nation, and he sued various government offices after he was denied a White House press pass. Ultimately, the D.C. Circuit said Sherrill had a First Amendment right of access to White House news conferences because they were "generally inclusive" of the press.

“[T]he White House has voluntarily decided to establish press facilities for correspondents who need to report therefrom,” Judge Carl E. McGowan wrote for a unanimous panel. “These press facilities are perceived as being open to all bona fide Washington-based journalists. ... [That] requires that this access not be denied arbitrarily or for less than compelling reasons. Not only newsmen and the publications for which they write, but also the public at large have an interest protected by the First Amendment in assuring that restrictions on news gathering be no more arduous than necessary, and that individual newsmen not be arbitrarily excluded from sources of information.”

The Sherrill opinion made clear that it did not interfere with "the discretion of the President to grant interviews or briefings with selected journalists.” The critical fact was whether access was “generally inclusive” of the press, in which case excluding a journalist arbitrarily or absent good cause would implicate the First Amendment.

As the Sherrill court observed, "It would certainly be unreasonable to suggest that because the President allows interviews with some bona fide journalists, he must give this opportunity to all."

The lower courts have used that approach — protecting journalistic access where it’s “generally inclusive” of the press, while otherwise allowing public officials selectively to grant interviews and give out information — in many contexts: access to tax records, press tables, prosecutorial records and buildings, among others. In 2006, the U.S. Court of Appeals for the 4th Circuit found that Maryland Gov. Robert L. Ehrlich Jr. did not violate the First Amendment rights of two Baltimore Sun reporters when he directed state employees not to communicate with them because he did not appreciate their reporting.

“It is common knowledge that reporting is highly competitive, and reporters cultivate access — sometimes exclusive access — to sources, including government officials,” Judge Paul V. Niemeyer wrote. “Public officials routinely select among reporters when granting interviews or providing access to nonpublic information.”

Free expression and information access — indispensable to inclusive knowledge societies — lie at the heart of American democratic life, which demands that citizens be informed to participate in public affairs.

This approach has its problems. Luke Milligan, a law professor at the University of Louisville, wrote in a 2008 scholarly article that it is “exceedingly permissive,” allowing clever officials to block a reporter from an event “by simply relabeling an ‘open’ event as ‘invite-only.’” And the approach’s ambiguity — focusing on whether access was “generally inclusive” of the press — can be a puzzle.

“What does ‘generally’ mean?” Milligan wondered. “And how will courts discern the relevant market of reporters?”

So, it might be time to reimagine access under the First Amendment, seeing that meaningful access and effective newsgathering — in all forms but especially in obtaining information from public officials — require greater access than FOI laws and the First Amendment now provide. Privileges like credentials can be helpful to that end, permitting the press to do things ordinary citizens may not in order to report a story (e.g., to cross police lines at a breaking-news event). But more seems needed — clear rights rather than privileges and patchy FOI laws and uneven constitutional principles.

The First Amendment could be a more operative, reliable source of access rights, a vision that would not put the First Amendment far afield from its role of aiding self-government. Indeed, further constitutionalizing access rights could be cast as a credit to their democratic footings.

Free expression and information access — indispensable to inclusive knowledge societies — lie at the heart of American democratic life, which demands that citizens be informed to participate in public affairs. That kind of informed participation can increase government efficiency, reduce its corruption and build or maintain civic trust.

Access rights, then, are as much a part of the First Amendment as expression rights — just as Potter Stewart observed, in dissent, in the Branzburg case: “[T]he right to publish is central to the First Amendment and basic to the existence of constitutional democracy,” and the “corollary of the right to publish must be the right to gather news.”

But the U.S. doesn’t have a monopoly on those ideas, and in fact we could learn something from other countries. Over 100 have FOI laws, many modeled after the FOIA. But some of theirs are better.

Liberia has access rights in its constitution. Serbia forbids government officials from giving preference to one journalist over others when responding to requests. Kyrgyzstan requires PIOs to be responsive to the press — and rewards the PIOs for it.

“Sure, there is more to accessing [information] than just the law,” David Cuillier, director of the University of Arizona’s School of Journalism, wrote recently about global FOI trends. “A state or nation can have a strong law but weak implementation. Or, a country can have a weak law, but the culture and political leadership might foster openness. The fact is, though, laws do matter, and the U.S. is falling behind.”

It doesn’t have to be that way. The Supreme Court has acknowledged that newsgathering is important, without determining in most contexts how much the First Amendment protects it. That is an opportunity — for the court to invigorate access rights under the First Amendment, even if journalists don’t get greater rights than citizens.

That’s fine. The important thing is that access rights — for all people — could be better protected constitutionally. That would be most congruent, too, with the general First Amendment tradition that all speakers — from the lonely pamphleteer to the Pulitzer Prize-winning Times reporter — are treated equally.

Of course, it’s hard to say whether the court would have any real interest in taking up these issues. But the justices, according to research about how public opinion has influenced the court and shaped the constitution’s meaning, tend to be followers instead of leaders — so a public discussion is the right starting point.

We need to consider what access we get from the First Amendment and what we expect.

For now, my answers are not enough and more.

Jonathan Peters is a media law professor at the University of Georgia, with appointments in the Grady College of Journalism and Mass Communication and the School of Law. He is also the press freedom correspondent for the Columbia Journalism Review. Follow him on Twitter @jonathanwpeters.

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