Chief Justice John G. Roberts Jr. once thought the public had a First Amendment right to know what the government is up to.
The chance that the Trump impeachment trial would give Roberts the opportunity to enhance the public’s knowledge of presidential wrongdoing (by, for example, rejecting Trump’s claims of “executive privilege” and “immunity” from subpoenas) has fizzled out.
Roberts will, however, have to weigh in on whether Trump’s tax and financial records ever see the light of day. The Supreme Court agreed in December to decide whether the president can block the release of records that three lower courts have ordered disclosed.
Oral argument is set for March 31.
The president’s lawyers contend the president is immune from all criminal proceedings and investigations while he is office. Roberts may well be the swing vote in deciding whether the president’s finances ever become public, a subject avoided by both the Mueller investigation and the impeachment proceedings.
1978 Harvard Law Review Article
John Roberts does have experience—long ago and not publicly known—with the people’s right to know. In researching a book about the Roberts Court’s First Amendment rulings, I came across a list of Roberts’s publications that he submitted to the Senate Judiciary Committee for his 2005 confirmation hearing.
It included his very first publication, a 1978 article he wrote about a First Amendment case when he was a law student at Harvard and served as managing editor of the Harvard Law Review. I tracked down the article, entitled First Amendment—Media Right of Access. Lo and behold, it was about a case I had argued the year before in the Supreme Court, Houchins v. KQED
I represented a public television station and two local chapters of the NAACP in their attempt to uncover news about deplorable conditions at the Alameda County jail in California. Sheriff Houchins’ policy was to exclude all press and public access to the jail, at all times and for no good reason. We argued that the First Amendment required sufficient access to prevent concealment of jail conditions.
The court, in an opinion by then-Chief Justice Warren Burger, upheld the sheriff’s policy. Burger proclaimed that neither press nor public has any First Amendment right of access—not just to a jail but to any “information within the government’s control.”
As it happens, I was teaching at Harvard the year the case was decided and Roberts was a student. I never met Roberts, as far as I know. (He was not in one of my classes, and he didn’t walk around campus wearing a sign saying he was the “Future Chief Justice of the United States.”)
In his article on the case, however, he quoted from my brief filed in the court, pointing out that our argument was based on “the right of the public to receive the information, and the right of the press to seek it out.”
His article was critical of Burger’s failure to grapple with whether the public has any right of access to government facilities and information. Roberts reasoned that while a public right would have to be balanced against valid government concerns, a “blanket exclusion” of all public access is unjustified. The public’s First Amendment right could be implemented “within workable bounds.”
Roberts concluded that despite Burger’s blunderbuss rejection of any right of access, the decision “should not be considered as standing for the proposition that there is no first amendment right of access to government-controlled institutions.”
Shaping of Roberts’ Constitutional Views
Of course, Roberts’s youthful idealism on behalf of a people’s right to know preceded his tour of duty in the Reagan administration, where he spent his formative years as a young lawyer, his corporate law practice, and his involvement with the Federalist Society. These experiences had a profound effect on his constitutional views.
He and his conservative brethren (they’re all men) have now discovered that First Amendment principles—originally developed to shield and empower oppressed individuals—can be put to the service of a politically conservative agenda, as in Citizens United.
The Roberts Court has decided more First Amendment cases than any previous court. Most of its decisions have favored free speech claims. In an interview last year, the chief justice claimed he is the court’s “most aggressive defender of the First Amendment.” But most of his rulings enhance the “speech” rights of corporations and religious right interests.
The Roberts Court has not revisited Houchins or taken a second look at whether the First Amendment empowers the people to challenge exclusion from seeing what government is up to. It is time to summon the John Roberts of his youth, inviting him to live up to his early First Amendment principles and ensure the kind of transparency all three branches owe the people.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
William Bennett Turner teaches Freedom of Speech and the Press at the University of California, Berkeley, and is the author of Free Speech for Some: How the Supreme Court is Weaponizing the First Amendment to Empower Corporations and the Religious Right.