Government Secrecy

Government Secrecy

Description

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 outweighed in particular cases by demonstrated need for exclusion.

Source Publication

Encyclopedia of the American Constitution

Source Editors/Authors

Leonard W. Levy, Kenneth L. Karst, Dennis J. Mahoney

Publication Date

1992

Edition

1

Volume Number

Suppl. 1

Government Secrecy

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