Justice Alan Scheinkman Justice Alan Scheinkman

The First Amendment to the United States Constitution provides that “Congress shall make no law … abridging the freedom of speech, or of the press.” The Free Speech Clause, of course, protects the freedom of each individual in our society “to express [oneself] in accordance with the dictates of [one’s] own conscience.” Wallace v. Jaffree, 472 U.S. 38, 49 (1985); see, e.g., Cohen v. California, 403 U.S. 15, 24 (1971); Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J. concurring)). The Free Press Clause, while directly protecting the news gathering and publication freedoms of journalists, is ultimately for the benefit of all of us—the public at large. See Time v. Hill, 385 U.S. 374, 389 (1967). The principal right guaranteed under this clause is, at bottom, the right of the public to information. See New York Times Co. v. Sullivan, 376 U.S. 254, 272 (1964) (“‘The protection of the public requires not merely discussion, but information’”), quoting Sweeney v. Patterson, 128 F.2d 457, 458 (D.C. Cir. 1942); Grosjean v. American Press Co., 297 U.S. 233, 250 (1936) (“The predominant purpose of the grant of [the Free Press Clause] was to preserve an untrammeled press as a vital source of public information”); see also New York Times Co. v. United States, 403 U.S. 713 (1971) (Black, J., concurring) (“The press was protected so that it could bare the secrets of government and inform the people”).

Providing the public with information is not an end in itself, but rather is a prerequisite to the ability of the people to intelligently participate in self-government. When the Free Press Clause was adopted, “‘[t]he evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.’ … [S]ince informed public opinion is the most potent of all restraints upon misgovernment, the suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise than with grave concern.” Grosjean v. American Press Co., 297 U.S. at 249-50, quoting 2 Cooley’s Constitutional Limitations (8th Ed.) p. 886.

To put the matter more succinctly, while freedom of speech may be viewed as protecting expression that emanates from the mind of a particular person, freedom of the press may be viewed as protecting the flow of information that may enter the public consciousness. While the uninhibited thought and expression that is facilitated by freedom of speech is essential to human liberty, an informed electorate, facilitated by freedom of the press to inform, educate and enlighten, is essential to democracy.

At this moment in our history, freedom of speech, while seemingly perpetually threatened in various ways, is in fairly good shape, at least in the sense that social media and internet communication in general have made it very easy, perhaps too easy, for each of us to say virtually anything about everything, potentially anonymously and to the entire world, virtually without constraint and, indeed without reflection. Yet, at the very time we are bombarded with a torrent of words and images through both traditional media and through new forms of social communication, our entitlement to be apprised of determinable facts, or, to put it differently, our right to accurate information, is not faring so well. We are flooded with a steady stream of communications which purport to provide information—indeed, exponentially more information than ever before—but that stream is heavily polluted with distortions, propaganda, and “fake news,” which severely compromise the ability of the populace to make critical judgments about the policies and conduct of its leaders. We have seen foreign nations, and others, undertake to use the modern tools of technology to deliberately spread false information on a widescale, precisely in order to divide us, undermine our confidence in our leaders, and cause us to doubt ourselves and our democratic ideals. We have developed a tendency for each of us to retreat into the cocoon of whatever media outlet provides news that fits our pre-existing world views. We seek to avoid learning things new and different; we take comfort in having our existing store of knowledge, however strongly or weakly constituted, reinforced. It was once said that each of us is entitled to our own opinions but not to our own facts. Now we live in a world in which we often claim entitlement to our own facts, regardless of their provenance or probability.

Of course, the law should not—and cannot—ensure the accuracy of all publicly disseminated information, but it can, and must, protect members of the press and others whose proper role it is to keep the us, the electorate, informed, to cut through the clutter and the flack, and help us separate fact from fiction. The U.S. Supreme Court has, for example, recognized that the Free Press Clause prohibits prior restraint of publication (see Near v. Minnesota, 283 U.S. 697 (1931)), even where the material to be published allegedly implicates national security concerns. See New York Times Co. v. United States, 403 U.S. 713 (1971) (the Pentagon Papers case). The Free Press Clause also restrains the government’s power to subject the distribution of information to taxation or licensing requirements. See Lovell v. City of Griffin, 303 U.S. 444 (1938); Grosjean v. American Press Co., 297 U.S. 233 (1936). In addition, the Supreme Court has held that the First Amendment prohibits state courts from awarding damages for defamation to public officials in the absence of a showing of actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964). Though the relative freedom to defame may, at times, result in unfair and uncompensated hurt and injury to cherished and valued reputations, so much so that this principle is now subject to significant criticism by at least one holder of high office, the Supreme Court has accorded broad protection to the press in fulfilling its vital role, because “First Amendment freedoms need breathing space to survive.” NAACP v. Button, 371 U.S. 415, 433 (1963). Our constitutionally expressed freedoms are just pretty words on a page without the judiciary to enforce them. To that end, we need to take great care in order to foster, not stifle, public access to governmental information. While there may be principled reasons to withhold certain, narrow kinds of information from the public, either temporarily or permanently, in the main, we are all better served by encouraging the free flow of information in order to enhance and elevate the public discourse, to shed light in the darkness that sometimes surrounds us, and help us discern truth from falsity. In addition to safeguarding the vital role played by the press, the judiciary should ensure that its own functions, and those of the other branches of government, are, to the greatest extent feasible, open and transparent, to maximize citizens’ knowledge of, and confidence in, the institutions of their government. For example, the U.S. Supreme Court held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980) that the public and the press have a First Amendment right of access to criminal trials. This holding was premised on the proposition that “‘a major purpose of [the First] Amendment was to protect the free discussion of governmental affairs,’” and mandating public access to criminal trials would ensure that such discussion “is an informed one.” Globe Newspaper Co. v. Superior Court for Norfolk County, 457 U.S. 596, 604, 605 (1982), quoting Mills v. Alabama, 384 U.S. 214, 218 (1966). While it may be unrealistic to expect that members of the public have the time to engage in regular court-watching, they have the right to do so and have the right to have the media sit in and report on the proceedings for them. Chief Judge Janet DiFiore’s Excellence Initiative has, as its ultimate objective, the goal of informing the public as to the work of the courts and where it has been improved and where improvement is needed. This self-reporting is essential to public confidence, trust, and accountability.

In 1966, Congress contributed to the cause of transparency by enacting the Freedom of Information Act (5 U.S.C. 552), which requires federal agencies to make information available to the public. This statute calls for broad disclosure, and the statutory exemptions from disclosure are construed narrowly. See Milner v. Department of Navy, 562 U.S. 562, 571 (2011). The New York Legislature followed suit in 1977 by enacting the Freedom of Information Law (Public Officers Law §§84 et seq.), which imposes upon state and local agencies disclosure requirements similar to those of the federal statute. Under the New York statute, “all agency records are presumptively available for public inspection and copying,” and “the burden rest[s] on the agency to demonstrate that the requested material indeed qualifies for exemption.” Hanig v. State Dept. of Motor Vehicles, 79 N.Y.2.d 106, 109 (1992). The New York statute includes a legislative declaration stating, among other things, that “a free society is maintained when government is responsive and responsible to the public, and when the public is aware of governmental actions … . The legislature therefore declares that government is the public’s business and that the public, individually and collectively and represented by a free press, should have access to the records of government in accordance with the provisions of this article.” Public Officers Law §84.

Our ability to govern ourselves is increasingly dependent upon a free and engaged media that provides, tests, and synthesizes information. This right to information, and the ability of the press to perform these essential functions, must be protected and nurtured if democracy is to survive.