Digging in the dirt for FOI gold

Monday, September 28, 1998

Ronald Reagan used to tell a story about a man who came upon a young boy excitedly digging through a large pile of manure. “What are you doing, son?” the man asked.

“Well, sir,” the boy answered happily, “with all of this manure, there must be a pony in here somewhere.”

Free-speech advocates observing the Lewinsky scandal find themselves in the same position as that little boy. With Congress having launched the Starr report and secret grand jury materials into cyberspace, with the sexual histories of public officials leading the news on a daily basis, we dig through this mountain of private information in the optimistic belief that there must be an important First Amendment victory in it somewhere.

Whether we will find such a victory, however, remains unclear.

A potentially significant First Amendment victory is the now-obvious futility and inappropriateness of the secrecy orders entered in the Paula Jones case. For all of the parties’ and the judge’s efforts to close hearings and seal transcripts, it now appears that everything (and more) has found its way into public view. Whether this full disclosure is good or bad is irrelevant; judges in the future must realize that the First Amendment rights of access cannot and should not be denied to serve the parties’ short-term desires or political objectives.

Another possible victory relates to Congress’ continuing efforts to regulate indecent speech on the Internet. When Congress rushed to release the Starr report through the Internet, it hopefully realized that the release of these lurid details would have been unlawful had the U.S. Supreme Court not struck down provisions of Congress’ own Communications Decency Act last year. Maybe now Congress will better appreciate the fear that regulation of “indecent” speech would censor Internet discussion of important political and social topics.

On the other hand, the bizarre nature of the Lewinsky scandal may prevent any aspect of it from obtaining precedential value. Even as the Starr report was being transmitted around the world, a House subcommittee was embracing the Child Online Protection Act, which would criminalize the commercial online distribution of material that is “harmful to minors.”

Supporters of the bill were quick to point out that the Act would not have prohibited the dissemination of the Starr report because (1) the legislation would not apply to non-profit sites and (2) the serious political value of the report meant that the speech would not qualify as harmful to minors. Not explained, however, were (1) how free, easier-to-obtain information is less harmful to minors than that hidden behind passwords, and (2) how a minor would ascertain the serious political value of, for example, the cigar episode. A “harmful to minors” standard is neither workable nor constitutional, and Congress hopefully will call upon its own recent experience as a purveyor of indecent speech when it considers this legislation.

A third potentially significant victory regards Congress’ belief in the public’s right to know. If genuine, the bold pronouncements coming from Washington about the public’s right to these materials would signal an historic sea change in the government’s approach to freedom of information issues. Unfortunately, it is unlikely that Republicans, who traditionally have resisted not only efforts to expand the Freedom of Information Act but also attempts to enforce the provisions already in place, actually have converted to the notion that the public has a right to and a need for governmental information. Indeed, if there is a political backlash from the release of the videotape and other grand jury documents, as some expect, many Republicans undoubtedly will take to the talk shows to announce that Congress in the future must balance the public’s desire to know against the sensibilities of American families.

For First Amendment advocates, the irony of the Lewinsky scandal and these potential victories is that they highlight a distinction that the advocates prefer did not exist. The First Amendment and the freedoms of speech and of the press that it guarantees are constitutional and, at least in theory, beyond the reach of presidents, legislators and independent counsels. The propriety of closed hearings and overbroad Internet regulation can be challenged on appeal. Access to governmental information, on the other hand, is in most instances political. No one had a First Amendment right to the Starr report, the president’s grand jury testimony or the Tripp tapes. Had Congress sealed all of this information, the only possible legal ground for challenging its decision would have been the Freedom of Information Act, which Congress could have amended or even repealed.

The precedents established by Congress in the Lewinsky affair therefore likely will not determine whether the public will receive a front row seat during the next political sex scandal. That judgment will be left to the politicians at the time and their perception of the public mood. Our current experiences may provide them some guidance, as can the principles of openness and the confidence in the public that underlie the First Amendment, but in the end political self-interest will control.

The Lewinsky scandal is far from over, and we may yet find a certain and significant First Amendment victory in it. For now, however, all we can do is keep digging.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.