Friday, May 28, 2021
Matthew Schafer, ViacomCBS; Fordham University School of Law, has published Does Houchins Matter? Here is the abstract.
Houchins v. KQED, Inc. is an enigma. The issue presented by the case was whether the press had a special right of access to a prison over that owed to the public. Only seven Justices participated in the case. The lead opinion, a three-Justice plurality, failed to command a majority of even the seven-Justice Court. The case split 3-1-(3), representing both a quantitative and qualitative schism between the factions. The plurality concluded that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information.” The concurring opinion agreed with the plurality in part and with the dissenters, in part, who would have found that “arbitrarily cutting off the flow of information at its source abridges the freedom of speech and of the press.” But that, as they say, is just the beginning of the story. This story – the story of the existence of a First Amendment right of access – from Houchins on through to the Court’s most recent access cases, is told in Part I. You see, as soon as the Court decided Houchins, it drew it into doubt. One year later, the Court would reserve judgment on the question the Houchins plurality allegedly decided. A year after that, the Court found, contrary to Houchins, that in some instances the First Amendment guarantees access to some government information. That case, Richmond Newspapers, Inc. v. Virginia concerned the right of access to criminal trials. It was split too, but the majority of the eight-Justice Court – 7-(1) – agreed that the First Amendment guaranteed a right of access. And, later, in Globe Newspaper Co. v. Superior Court, a majority of the Court found that the First Amendment was broad enough to be read as encompassing a right of access that “ensure[s] that the individual citizen can effectively participate in and contribute to our republican system of self-government.” This history is difficult to square with the absolutist language in the Houchins plurality. Subsequent Supreme Court cases, however, seemed to suggest Houchins had continuing viability. Thus, as explained in Part II, while many courts of appeals have found that Richmond Newspapers and Globe Newspaper provide the general rule when it comes to access, just as many have concluded that the Houchins plurality – a plurality that never constituted a majority of the Court – establishes the general rule that there is no right of access to government information under the First Amendment at all. In doing so, these courts have downplayed the majority position in Richmond Newspapers and Globe Newspaper as mere exceptions to Houchins’ general rule, applicable only to judicial proceedings and records. As a result, the right of access in circuits following this approach does not extend outside the factual confines of Richmond Newspapers and Globe Newspaper (or their close analogs). Part III asks, despite these cases, Does Houchins Matter? It suggests that the answer to that question should be No. Considering first the facts of the case, while many courts cite Houchins as holding that there is no general right of access protected under the First Amendment, the question in Houchins was a different one, namely, whether the press had a special right of access beyond that established for the public. Moreover, unlike several cases citing Houchins to support the total exclusion of the press and the public, Houchins was a case where substantial access was actually provided. Thus, the opinion in Houchins presupposed some level of access. Second, Houchins precedential weight is questionable for a number of reasons. Not only is there no majority opinion – even on a seven-Justice court, but there is also no controlling opinion. And, it can seriously be questioned whether the absolutist constitutional rule Houchins is often cited for should have been set down by a three-Justice plurality in a short Court. Third, the law subsequent to Houchins, to borrow a phrase, occupies the field of the right of access. This law not only dealt with the complete exclusion of the press, it provided standards to apply when dealing with claimed rights of access, and its holding is irreconcilable with the broad dicta in Houchins. Moreover, those later cases, especially Globe Newspaper, are a better doctrinal fit in the Court’s broader First Amendment cannon than is Houchins. They advance, as the Court put it in New York Times v. Sullivan, the “central meaning of the First Amendment”: “The right of free public discussion of the stewardship of public officials.” Houchins does just the opposite, cutting off information to inform that discussion. The paper finally argues that the practical effect of finding Houchins to be controlling is decidedly anti-democratic. Recent events have shown just how undemocratic the result of uncritical acceptance of Houchins can be. In the summer of 2019, the federal government, for weeks, kept journalists out of detention centers on the border. It did so despite shocking secondhand accounts of overcrowding of immigrants apprehended crossing the border, malnourishment, maltreatment, and the spread of disease among those apprehended. Once a photograph was finally released, outrage followed and public pressure was brought to bear. In 2020, the federal government argued under Houchins that it could exclude journalists from conflicts between Black Lives Matter protesters and federal law enforcement, despite allegations that the federal government was conducting unlawful police activities in localities and, quite literally, beating and carrying away citizens under the cover of dark. Again, the images from these protests were central to public debate about the government’s conduct. This paper then closes by recognizing that, despite all of this, vanquishing Houchins is an uphill battle. It seems unlikely that even though Houchins shouldn’t matter, absent guidance from the Supreme Court, lower courts in a significant number of Circuits around the country will continue to find that it does matter. Courts appear too afraid that recognizing a general First Amendment right of access to government proceedings and information will break down the doors of courthouses and government agencies and prisons around the country. Still, while the right of access as defined in cases like Richmond Newspapers and Globe Newspaper might be more difficult to apply than Houchins, it is the better approach as, unlike Houchins, it allows courts to consider the important interests at stake in any given case as opposed to simply shutting the government’s doors in the face of the public.
Download the article from SSRN at the link.