Media Censorship and Access to Terrorism Trials: A Social Architecture Analysis

Abstract

This article contends that using the social architecture metaphor - which focuses on how the law creates and distributes power between groups - is particularly well suited to understanding the importance of access to the trials of terrorist suspects. Specifically, the article argues it is important that the "architecture of power" created by the U.S. Supreme Court in cases that have provided for a First Amendment right of access to criminal trials not be replaced with an architecture that more closely resembles cases that have dealt with access to national security information and locations. In these cases, rather than decide cases by focusing on the societal benefits of open government, courts have typically focused on the individual facts of each case without an eye toward the larger social architecture the decisions create. This article posits that an architecture of presumptive access that still allows for a case-by-case closure - as opposed to an architecture of presumptive secrecy with case-by-case disclosure - is consistent with the original architecture of the Constitution and First Amendment and advances trust in the government as it fights terrorism.

Keywords: First Amendment, Access to judicial proceedings, terrorism trials, social architecture theory