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Freedom of Information in the United States

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Freedom of Information in the United States DePaul Law Review Volume 20 Issue 1 1971 Article 1 Freedom of Information in the United States Morris D. Forkosch Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Morris D. Forkosch, Freedom of Information in the United States, 20 DePaul L. Rev. 1 (1970) Available at: https://via.library.depaul.edu/law-review/vol20/iss1/1 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. FREEDOM OF INFORMATION IN THE UNITED STATES Moius D. FORKOSCH* INTRODUCTION NY ANALYSIS which involves numerous and varied details may degenerate into a taxonomic exercise. For example, an im- mediate and necessary classification is that of the content or symbols transmitted and received, and the means, methods, and agencies so transmitting and receiving. While divisions and group- ings may be so utilized, these must remain servants and not become masters. The reason is that the "why" is generally more important than the "what," being projectable in time and in space, e.g., one country's experiences may become the basis for another's approach. For these reasons the present inquiry at first goes deeply into what may seem too abstract a discussion of American history and values. However, the subsequent particularization discloses that while now and then the United States has swerved from its basic ar- ticles of political faith, still, over the past two centuries, it has re- mained true to its national credos' involving freedom of information.2 * DR. FoRKoscH Is Professor of Law and Chairman of the Department of Pub- lic Law at Brooklyn Law School, Brooklyn, New York. He has seven books and numerous articles to his credit. t The author wishes to thank James Carroll for technical assistance in the preparation of the manuscript for this article. This study was undertaken for the Consiglio Nazionale della Richerche, Rome, Italy, which has consented to its pre-publication in a slightly revised form. 1. It may be argued that these credos are really myths, or at least mass as- sumptions, which the collectivity accepts blindly. Nevertheless, they are "facts" of life, even though beliefs, and because so many act on them they must be taken into account in any examination and evaluation of a nation's conduct. See, e.g., FORKOSCH, THE POLITICAL PHILOSOPHY OF ARNOLD BRECHT (1954). 2. This term, "information," will be used many times, and will be somewhat defined shortly. It will include all forms and methods of communication, e.g., the press, broadcasting, postal mail, moving pictures, symbolic expression infra (notes 58 et seq.), and while the press, i.e., newspapers, may be discussed at greater length, this is not to denigrate the other media. The avant garde press is also included, on which see GLESSINO, THE UNDERGROUND PRESS IN AMERICA (1970); minorities and their own publications, publishing companies, and broadcasting and other media of information, are not directly touched upon, but also come within the present analysis. DE PAUL LAW REVIEW [Vol. XX: I America's future in this area thus seems fundamentally sound and se- cure, despite the occurrence of aberrations, exceptions, and even the commission of egregious acts of repression at times. Such lapses as history and current events disclosed in the free flow of information have not yet overburdened the resiliency of the American political system. As with all others, ours is a congeries of postulates, axioms, and even myths, including a variety of moral im- peratives, e.g., as in the Civil War, World War I, where we fought for "democracy." So with the economic system, e.g., one major belief is the validity of free enterprise;' the social system, e.g., the omni- present opportunity to move upward; or the religious sytem, e.g., a fundamental belief in God. All of these facets combine in the total American system, which includes not only a way of life, but also a need for the support and continuation of certain imperatives. Some of these latter may sustain more than one such system-facet, and thus be interwoven as a wool in the fabric of our society.4 Two of these are freedom of speech and of press.5 For example, the free and un- trammeled flow of information is today as much an economic and social necessity as it is a political one,6 and it therefore follows that anyone seeking to prevent this stream from being dammed is, at least to this extent, supporting the American "capitalistic" system. Those who seek to circumscribe these two freedoms are thus not political 3. DRUCKER, CONCEPT OF THE CORPORATION 1, 3 (1946); RosTow, PLANNING FOR FREEDOM 30-31 (1959). 4. See, e.g., Forkosch, American Democracy and Procedural Due Process, 24 BROOKLYN L. REV. 173 (1958), feeling that procedural due process is such a woof and illustrating by reference to the procedures found not only in the courts, but also in the administrative process, military justice, labor unions, the educational system, churches and religious bodies, the political system and parties, etc. 5. It is presently not relevant to discuss other items such as the remainder of the first amendment freedoms, or other constitutional clauses, as also being such an indispensable and cross-cutting ingredient. See, e.g., United Mine Workers v. Illi- nois State Bar Ass'n, 389 U.S. 217, 222 (1967), that "the rights to assemble peace- ably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are inti- mately connected both in origin and in purpose, with the other First Amendment rights of free speech and free press. 'All these, though not identical, are insepar- able.'" See also infra note 55. 6. Justice Black, in the U.M.W. Case has "intimately connected" in an "in- separable" fashion all first amendment freedoms, and has also written that "the First Amendment does not protect speech and assembly only to the extent that it can be characterized as political. '. And the rights of free speech and a free press are not confined to any field of human interest.'" Id. at 223. 1971] FREEDOM OF INFORMATION IN THE UNITED STATES D conservatives but anarchists7 who, by disavowing such mainstays, cause decay and disintegration. s One personal note as to bias-this writer is biased insoafr as the almost absolute freedom of information is concerned. He starts with the premise that man himself, his collectivities and his organiza- tions, must be free in the absolutistic sense to gather, edit, and dis- seminate all information, and this is because not only man but also his governments, national or international, and his associations, pri- vate and public, likewise benefit in the utmost. Man's creativity and his genuis must be free from any and all attempts by any person or government to regiment, coerce, license, censor, intimidate, or other- wise exercise any degree of control over him. Thus man needs con- tacts, information, and all that his past and his present can bring to him, and it is only in such an open society that the individual fulfills himself.' His conduct, however, may necessarily have to be circum- 7. It is somewhat difficult so to term Georges Pompidou, President of France, but the French-controlled television system spews forth government views and propaganda continually. Concerning the French Office of Ration and Television (ORTF) he is quoted as saying to its personnel that "you are speaking for France, and there is a certain level of tone and of thought that is demanded." ORTF, "whether we like it or not, is the voice of France." INT'L HERALD TRIBUNE, July 8, 1970, at 5, col. 6. Even England's state-controlled B.B.C. has its private-commer- cial rival, and West Germany learned well its lesson under Hitler. Italy's system is similar to France's but apparently no special classification of its network journalists has been made. That dangers loom internally for the information media in the West is illustrated by the annual report of the International Press Institute which points up the growing distrust of public opinion in public institutions, a general disenchantment by the public, and the start of a gulf and confrontation developing between pub- lishers and their newsrooms. N.Y. Times, Jan. 1, 1971, at 2, col. 2. 8. One may therefore argue that solvent publishers, for example, are indispen- sable adjuncts to society's need for a free press, and therefore support ailing ones in some manner. This has been sought to be done for certain purposes and certain publishers, e.g., the Newspaper Preservation Act of 1970, Pub. L. No. 91-353 (July 24, 1970), permitting an antitrust exemption for failing papers so as to be able to operate joint or common production facilities, etc., although its coverage and effect is questionable insofar as a small paper is concerned. These latter may conceivably be solely involved in governmental support financially. See also infra, notes 538 et seq., and text keyed thereto. Or, in supporting ailing businesses, the nation di- rectly subsidizes or aids and therefore supports farmers, ships, railroads, see the re- cent Rail Passenger Service Act of 1970, Pub. L. No. 91-518 (October 30, 1970), and others, e.g., mass transportation, Urban Mass Transportation Assistance Act of 1969, Pub. L. No. 91-453 (October 15, 1970), and indirectly subsidizes the oil industry (depletion allowances), airplane and defense industries (by upping cost estimates, loans, etc.), and even all publications (reduced postal rates).
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