Freedom of Information Is Integral for a Free Press

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.