The Supreme Court, the First Amendment, and Freedom of Information

Abstract

Americans live in a nation which depends for many purposes upon a constitutional system of free expression, with a number of constitutional and statutory elements. ' In addition to the First Amendment, the state of the union requirement, the congressional journal mandate, the audits and accounts clause, and other constitutional provisions, the United States has a collection of fair information practices laws including among others the Freedom of Information Act, the Privacy Act, the Government in the Sunshine Act, the Federal Advisory Committee Act, the Family Educational Rights and Privacy Act, the Right to Financial Privacy Act, the Fair Credit Reporting Act, and parallel legislation in many states. fair assessment of information policy must contemplate both the constitutional and statutory dimensions of the subject. These elements of the system are interrelated and overlap.2 Madison captured the fundamental role played by the system in making information available when he observed: A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.' The Freedom of Information Act (FOIA) is appropriately viewed as an adjunct to the constitutional elements of the system envisioned by Madison. The Supreme Court has observed that [t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.4 Both constitutional and statutory provisions are concerned with assuring the capacity of the citizenry to address specific substantive policy issues and with the maintenance of important structural features of the governing framework such as elections and the arrangement of checks and balances.5 In addition to their other essential interrelationships, FOIA and the First Amendment are frequently brought together in litigation involving both constitutional and statutory issues. The Supreme Court plays a vital role in fair information practices because it possesses tremendous discretion in the interpretation of the nature, boundaries, and functions of the system. Consequently, anyone attempting to assess the state of information policy must consider the directions in which the Court is moving in this field. In performing that analysis, one finds. a development which reached full flower in the * The First Amendment and the Freedom of Information Act (FOIA) are interrelated elements of the system offree expression. The Supreme Court's power to interpret both the constitutional provisions and the statutes plays a central role in shaping information policy. This article argues that while the Court has moved from a rights-based theory of free expression to a more expansive free-flow approach, it has simultaneously demonstrated deference to government claims for control over information in its interpretation of FOIA and created exemptions to the general free-flow concept in its constitutional rulings. The Court's recent decisions are inconsistent with its own demands that government should protect the free-flow of information needed by the citizenry for self-governance.