National Security and Access, a Structural Perspective

Abstract

Since 1980, the U.S. Supreme Court has recognized that the press and the public have a First Amendment right of access to attend criminal trials. The Court, however, has failed to anchor that access right to any First Amendment theory in particular. Sometimes it has adjudicated requests for access without invoking any theory whatsoever, and other times, it has maintained that access to information played a “structural role” in a democracy by ensuring that public debate was an informed one. Then the Court stopped considering access cases altogether, leaving it unmoored in a sea of First Amendment jurisprudence. This drift has created vast inconsistencies in how lower courts understand access, which the government has, in turn, exploited to limit public access, especially in cases involving national security. Extending the country's secret wars into the courtroom, however, is antithetical to the traditional value of openness in our judicial system. To prevent the further erosion of this value, courts must begin to understand access not just as an individual right to be vindicated but rather as a structural necessity for effective self-governance. First, as explained in Part I, access plays a structural, separation of powers role by limiting the Executive’s authority to decide what information submitted in judicial proceedings may properly be kept from the public. Second, as explained in Part II, access plays a structural role by providing the public with the pool of information it needs to engage in — to borrow and modify a famous phrase — “[meaningful,] uninhibited, robust, and wide-open” public debate that fuels the democracy established by the Constitution. Finally, Part III explains how the failure to account for these principles undermines access and how courts can reverse that effect by focusing on access as an essential ingredient to the system of government established by the Constitution.