Does Houchins v. KQED, Inc. Matter?

Abstract

In 2018, the Trump Administration barred media access to detention centers on the border. In 2019, officials at a federal jail in Brooklyn barred media access when the power and heat went out. And, in 2020, governments sought to ban journalists from Black Lives Matter protests. The constitutional provenance of these bans can be traced to a series of Supreme Court decisions from 1978 to 1982, and to one in particular: Houchins v. KQED, Inc. In that 3-1-(3) decision, the plurality concluded that the First Amendment did not “mandate[] a right of access to government information.” Today, that plurality holds outsized influence, but, that influence has, rarely, been interrogated. This Article does so, concluding that Houchins has little to commend it. It first provides a history of the Court’s access case law from Houchins to the present and describes how this history spawned a split in lower courts where half treat Houchins as controlling, while half do not. Against this backdrop, it makes four claims. First, Houchins’ facts and its analysis are much narrower than courts have claimed. Second, it has questionable precedential weight as it lacks a majority or controlling opinion and was heard by only seven Justices. Third, it was displaced by the Court’s later access cases. Finally, it is remarkably anti-democratic. This Article urges lower courts to reassess outworn reliance on the Houchins plurality in order to develop a cohesive body of access jurisprudence that upholds principles of democratic self-governance.

Originally published in 70 BUFF. L. REV. [start page] (2022).

Keywords: First Amendment, Right of Access, Prisons, Transparency