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Censorship at the source: the worst kind

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center

05.02.00

(Editor's note: This is an edited version of the speech Paul McMasters gave last week in Paradise Valley, Ariz., in receiving the John Peter and Anna Catherine Zenger Award from the University of Arizona.)

Maximum access to government information is a fundamental right and a shared responsibility of both the press and the public. Despite that, freedom of information is in deep trouble today. And because it is in deep trouble, democracy is in deep trouble.

The public and the press alike must recognize that delay and denial of access to government information is in fact censorship. It is censorship of the most insidious sort because it is censorship at the source.

This form of censorship starts at the very top. Washington, D.C., the capital of the open society, is awash in secrecy and efforts to keep information from the American people. Just a few examples:

Two weeks ago, Reps. Tom Davis and Jim Moran of Virginia introduced legislation that would exempt exchanges of information between the federal government and private businesses from the federal Freedom of Information Act. Supposedly, the bill would prevent cyber attacks against critical infrastructure. So they propose to blow a real hole in the FOIA rather than patch a possible hole in our cyber security.

This same sort of cyber-panic resulted in a massive compromise of the people's right to know last summer when a bill was rushed into law to prevent the EPA from making information available to millions of citizens living in the shadow of 30,000 chemical facilities — information crucial to their own health and safety.

Also last year, Congress slashed funds to put a halt to the declassification of massive stores of secrets no longer considered injurious to national security but of great importance to historians, researchers and ordinary citizens.

The story is just as sad at the state level.

In the past three years, journalists and concerned citizens in a dozen states have conducted FOI audits of government agencies, with alarming findings. Routinely and regularly, government officials are violating the states' sunshine laws by refusing to turn over records requested by citizens.

These audits have demonstrated three things: Ignorance of the people about their rights, ignorance of public officials about their responsibilities under the law, and unwillingness by attorneys general to punish the offenders.

But it is at the local level, where the actions of government are most likely to intersect with the day-to-day lives of Americans, that we find the most depressing attitudes toward access.

If there is any doubt just how closed a society we have become, here are some things officials on city and county councils, commissions and boards do to shut out the people:

• They go into secret sessions.
• They conduct 'virtual' meetings by telephone, fax or e-mail.
• They meet in small, less-than-quorum groups.
• They won't accept agenda suggestions from the public.
• They impose onerous requirements for a citizen to get an issue on the agenda.
• They won't allow negative comments about public officials or employees by name.
• They won't allow citizens to speak about certain topics or more than one topic.
• They strictly limit the amount of time a citizen can speak.
• They remove citizens from the room or make them sit down if they are not deemed to be speaking in a respectful or deferential manner.
• They conduct the people's business during 'retreats,' professional gatherings or other meetings remote from the community.
• They require the city or county attorneys to look after their interests rather than the interests of the taxpayers.

To add insult to injury, they justify these actions as being for the people, rather than their own convenience and comfort. Thus:

• They exploit the panic over personal privacy to put even more information out of reach.
• They describe government information as a revenue source and turn it over to private vendors, explaining that they are making money when in fact they are compelling the taxpayers to pay for the same information twice.
• They refuse to disseminate information unless forced to, and do not fully or effectively utilize new technologies to make more information available more quickly.

It all adds up to the shutting of the public out of the political and governmental process on a massive scale and gives the lie to the whole idea of an open society.

How did we get to this?

The primary culprits, of course, are government officials who develop a proprietary attitude toward information. Information truly is power. It's also a nuisance to spend time and resources on sharing it with the taxpayers who footed the bill for its collection in the first place.

But the American press also bears some blame for this sorry lack of access to information.

Government officials always have tried to control the journalists — for reasons good and bad. From the beginnings of this nation, the method of control was primarily censorship. Early on, the fledgling nation's security was the rationale of choice for punishing the press and shutting it down for the dissemination of inconvenient information. From the time of John Peter Zenger on, journalists were routinely jailed and censored.

While censorship could be justified more easily during wartime, however, it gradually became a tougher proposition during peacetime. Although there were no significant pro-First Amendment decisions by the Supreme Court until after World War I, the idea of a free and independent press in fact as well as on paper gradually began to take hold.

So as overt censorship of the press by the government became more difficult, other methods of keeping the press in line had to be perfected. Thus, withholding of government information and secrecy became a high art, including propaganda, disinformation, and news management — all the tools that one normally associates with a dictatorship.

What government could not accomplish by punishing the press it learned to accomplish by starving the press.

This was a different brand of censorship — at the source — but censorship nonetheless.

And it was a frontal attack on the Jeffersonian principle of an informed citizenry.

Of course, it wasn't about the press at all. But the press fell into the trap of taking it personally and forever damaged the cause of access by acting as if this was about the press and not about the people and basic democratic principles.

At a time when many Americans think of the press as part of the problem rather than part of the solution, delay and denial of access offers an opportunity for the press to change that perception. The press must do a better job of holding government officials to account on excessive secrecy.

The press can start by recognizing that freedom of information is not 'inside baseball' but a right of the people. Then it can make the case that denial and delay of access are forms of censorship as pernicious and anti-democratic as burning books and jailing journalists.

Indeed, there is no justification for censorship in a democratic society. All censorship is bad, but censorship of the press is particularly threatening. Censorship of books and other media generally has to do with sex and other naughtiness. Censorship of the press, on the other hand, almost always has to do with suppression of the truth about our governance and the things that affect our daily lives and livelihoods in profound ways.

So what do we do?

I don't pretend to have all the answers but I do have some proposals.

Here are just a few things the press can do:

• Muster as much outrage on behalf of the public as it does for itself.
• Cover FOI issues much better and more regularly than it does now.
• Make sure articles made possible by FOI laws make that clear to readers and listeners.
• Editorialize on freedom of information issues.
• Watch lawmakers and lawmaking concerning access more closely.
• Conduct an audit of public officials' compliance with sunshine laws.
• Recognize good work by citizens and political leaders in opening up government meetings and records.
• Go to court to assert the public's access rights more often.

Here are some things that the public can do:

• Demand to know the positions on access of candidates for office.
• Attend public meetings and speak up.
• Request public records regularly.
• Hold elected officials at all levels accountable on their access policies.
• Support laws that open up government meetings and records.
• Be persistent and insist on being heard.

And while we're handing out assignments, here are some for public officials, too:

• They need to begin with a presumption that records and meetings are open.
• They need to resist a proprietary attitude toward public records and a dismissive attitude toward citizens' right of access.
• They need to view citizen requests for information as an opportunity to involve more people in the political process and their own governance.
• They need to find ways to make more information available to more people — without their having to ask for it.
• They need to recognize that an informed citizen is a more trusting citizen. A more trusting citizen is a more involved citizen. And a more involved citizen is the foundation of good government.

Why does it matter?

It matters because in an environment of secrecy and information suppression, citizens grow increasingly distrustful of their leaders, increasingly unsupportive of decisions made behind closed doors, increasingly suspicious of secrets locked away in files, and increasingly angry at bureaucratic resistance to granting access to even the most routine records.

In such an environment, paranoia and conspiracy theories thrive, and opportunities for improving government policies and practices go begging.

In such an environment, it is not just the dream of democracy but the reality of democracy that begins to shrivel and confront the idea of a slow death.

Paul McMasters may be contacted at pmcmasters@freedomforum.org.