Information, the Executive and the Politics of Information
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Description
In the United States, “freedom of information” has become a code word for access to information produced or controlled by the Government. In the effort to broaden that access, law and politics have constantly been intertwined, until it has become clear that the dynamics of “freedom of information” are rather different from those of other freedoms. This distinction has not always been so clear. After the Second World War, when the Western liberal powers were confidently pushing for more openness in every aspect of every society, a government's restrictions on its own information were not clearly distinguished from restrictions on free expression by the press and individuals. In 1946, as part of a resolution convening a conference on the subject, the UN General Assembly proclaimed that “freedom of information is a fundamental human right and is the touchstone of all the freedoms to which the United Nations is consecrated.” Although over forty years later it is a little hard to see what the writers thought they were saying when they passed this Resolution, it is clear at least that they were pressing for a relaxation of restraints on information held by the State as well as other sorts of information. That view was encouraged by representatives of the press, especially from the United States. After that ambiguous moment in 1946, however, freedom of information as we now know it was never to be recognized as a clear-cut human right. The UN Declaration on Human Rights takes a much more guarded view, emphasizing freedom of opinion and expression. The United States Supreme Court has never recognized any generalized constitutional right, derived from the right of free expression, of access to information within the control of the government. Quite the contrary. Although the Court has recognized and even expanded the right of the press to have access to court proceedings, which in any case and with few exceptions were traditionally open to the public, it has declined to go further. It has, for example, refused to recognize a constitutional right for news reporters to gain access to a prison where abuses were claimed to have occurred. Ronald Dworkin has argued that the forces of the press have made a strategic error in trying to derive a right of access from freedom of expression; political concerns properly restrict the right of access, he says, in a way that they ought never to restrict freedom of expression. Although I think Dworkin is probably right on this point, at least as it applies to American constitutional law, we should not let that conclusion blind us to the importance of freedom of information. For American lawyers, it is the siren-song of our Bill of Rights that we tend to imagine that a right is somehow less important if it cannot be derived from the Constitution. For reasons that I hope will be clarified below, I think freedom of information is basic to policy-making under conditions of the modem State, while at the same time it is always ringed with obvious political problems.
Source Publication
Free Speech and National Security
Source Editors/Authors
Shimon Shetreet
Publication Date
1991
Recommended Citation
Chevigny, Paul G., "Information, the Executive and the Politics of Information" (1991). Faculty Chapters. 1139.
https://gretchen.law.nyu.edu/fac-chapt/1139
