James Madison once said, "a popular Government, without popular information, or a means of acquiring it, is but a Prologue to a Farce or 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." For almost forty years, the Supreme Court has anchored the press's and public's right of access to government proceedings and information in the language of the First Amendment. Grounding the right of access in the language of the First Amendment is unsatisfactory not only because it goes beyond the scope of traditional First Amendment values, but also because it does not provide access to the amount of information necessary to ensure the proper functioning of our democratic government. A more intellectually honest, and ultimately more persuasive, conception of the right of access would recognize it as a systemic right, similar to the right to vote, that is both inherent in and essential to a republican system of self-government. Since an informed electorate is essential to the proper functioning of a democracy, access should be protected to the same extent as other systemic rights. Furthermore, courts have recognized that access serves several important functions in a democracy. Access acts as a check on the government, ensures that government does its job properly, enhances the perception of integrity and fairness in government proceedings, and most importantly ensures that the "individual citizen can effectively participate in and contribute to our republican system of self-government." These functions demonstrate the importance of protecting the right of access and the "openness" that it creates, but treating access as a speech right that is protected by the First Amendment fails to recognize that the right of access is more fundamental, that it is part of the foundation upon which the First Amendment is built.
The Right of Access: Is There a Better Fit than the First Amendment?,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss4/4