A few years ago, I conducted an interview series about First Amendment issues for the Harvard Law & Policy Review. I talked with lawyers, scholars, and others who have made a mark on free expression: Floyd Abrams, the Cahill Gordon litigator who helped win the Pentagon Papers case; Geoffrey Stone, the noted First Amendment scholar at the University of Chicago; and Anthony Lester, the House of Lords member who has made the First Amendment globally relevant by using its doctrines to great effect in English and European courts.
I asked one question across all of the interviews: “What is the most serious threat today to free expression?” The responses were fascinating in part because they varied so widely. One said it was Citizens United, because it gave too much power to the wealthy and thus perverted the marketplace of ideas. Another said it was the willingness of many people, based on their own views or ideology, to be selective in their support for free-speech norms. Yet another said it was broad government surveillance and its chilling effect on expression.
I hadn’t thought about that series for some time. But this week, as I reflected on 2015 and took stock of the cases I covered as a writer or was involved in as a media lawyer, my mind wandered to a version of the question I asked: What was the most serious threat last year to a free press in the US?
It’s not a simple question—the answer depends on how you define “most serious” and “threat” and “free press.” But for me, the answer was clear: My biggest concern in 2015 was government attempts to shield information and events from public view.
Take these examples: A township sued a citizen who requested public records to obtain relief from its duty to respond—and even asked for attorney’s fees. State lawmakers tried to kill a program designed to help citizens resolve FOI disputes without litigating. Other lawmakers used Sunshine Week to propose bills to make it more difficult for citizens to record police activity. A police chief prohibited a citizen from photographing public records as he reviewed them. The federal government paid The Blade of Toledo, Ohio, a financial settlement after detaining two of the paper’s journalists and deleting some of their pictures, all because they photographed the exterior of a military manufacturing plant—capturing only what was plainly visible from the public street. States continued to keep secret their capital-punishment protocols. City police stonewalled requests for records related to Freddie Gray’s death. St. Louis County prosecutors charged journalists in connection with their Ferguson newsgathering. State university employees interfered with journalists as they tried to document campus protests.
The list goes on.
It’s nothing new, of course, for government agencies and officials to try to minimize their exposure and public scrutiny. These examples are, by definition, anecdotal, and in a number of cases the people pushing for transparency ultimately prevailed. I haven’t done a study of whether secrecy is on the rise.
But I do think secrecy is a serious threat to a free press, and to my eye 2015 gave us plenty of reasons to worry about that threat.
I worry about the resources and creativity that the government expends to parry the press and public. I worry about the shrinking budgets of many newspapers, historically the most likely to litigate to unseal court papers, to open meetings, and to compel the disclosure of public records. I worry about secrecy’s effects on government operations and the democratic accountability that our system is supposed to beacon. And I worry about that beacon—the example we’re setting for countries that look to us as good shepherds. The US can’t be home to the sort of government that sues record requesters and shrouds in secrecy its capital-punishment protocols, while interfering with journalists’ newsgathering and refusing to release records regarding a death in police custody.
We have to do better.
Americans have always believed, as the late Learned Hand once said, that “right conclusions are more likely to be gathered out of a multitude of tongues, than … any kind of authoritative selection.” Indispensable to that premise is the importance of the free flow of information allowing citizens to make reasoned judgments about public affairs. In other words, shared decision-making responsibility requires the sharing of information. The public’s right to know is not some tiresome admonition, but something to be lived—and to be honored by the people we elect to run our government.
And for those of us in the watchdog’s role, worrying isn’t enough. We have to work, individually and institutionally, to protect the values of transparency and accountability. They need the press’s continued and sustained attention. We should advocate for openness. We should write about closures and denials and efforts to conceal government activities or escape scrutiny. We should take legal action where feasible and sensible.
Journalists are both the benefactors and beneficiaries of government openness, so I realize I’m preaching to the choir a bit here—and that we already do all of these things. But in 2016, on the heels of a year dotted by efforts to shield public matters from public view, I hope we will renew our own efforts as we continue to fight for sunlight.
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