Does Houchins Matter?
136 Pages Posted: 19 Apr 2021 Last revised: 1 Jun 2021
Date Written: April 16, 2021
In summer 2018, the Trump Administration barred media access to detention centers on the border. In winter 2019, officials facing a crisis at a federal jail in Brooklyn barred media access when the power and heat went out. And, throughout 2020, governments sought to ban journalists from portions of Black Lives Matter protests. The constitutional provenance of these media bans can be traced to a series of Supreme Court decisions from 1978 to 1982, and to one case in particular: Houchins v. KQED, Inc. In that 3-1-(3) decision, the plurality maintained 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 questioned. This Article does so and concludes that Houchins has little to commend to it. It first provides a history of the Court’s access jurisprudence from Houchins to the present and describes how this history spawned a split in lower courts where half treat the Houchins plurality as controlling, while the other half do not. Against that 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 concludes by urging 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.
Keywords: First Amendment, Right of Access, Prisons, Transparency
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