Column: Inside the First Amendment, by Gene Policinski

The First Amendment is very clear in its 45 words that it protects a “free press” along with our rights to religious freedom, free speech and the rights to assemble and petition.

But the founders, in effect, placed a responsibility in return for being the only profession named in the Bill of Rights: The news media were to be a “watchdog on government,” providing us with the facts, perspective and sometimes contrarian views that help citizens better chart the course of their government.

One of the latest version of that centuries-old daily duty is playing out now in a Wisconsin courtroom, where a coalition of news and freedom of information groups are trying to extract information from closed court records about a previously undisclosed email system involving Milwaukee County officials.

This particular effort engages not only the watchdog role, but also the public’s right to information obtained in the course of judicial proceedings, and even implicates freedom of information laws intended to keep the public’s business “public.”

The Milwaukee Journal Sentinel and others are seeking to access to public records collected during a sealed investigation of charges that included county employees campaigning on the public’s dime for now-Gov. Scott Walker, then county executive and mentioned as a possible Republican presidential candidate. Convictions resulting from the investigation revealed a “private” email system by which certain trusted members of Walker’s staff could communicate outside official channels open to public view and inspection.

The use of such alternate e-mail arrangements, in which public officials conduct discussions about official business outside regular, known government email systems, have been reported to have been used by federal agencies, Obama administration Cabinet officers, the New York City mayor’s office, and even by members of a New Jersey local library board.

Laws on public records and private emails vary greatly across the nation, and administrative decisions and court ruling also fail to draw clear lines.

In September, the National Archives told Congress that federal officials may use non-official addresses but that the exchanges have to be kept and made public in response to freedom of information requests. But in July, in Illinois, an appellate court ruled in City of Champaign v. Madigan that under that state’s FOI laws, private emails and other electronic communications are not automatically public records just because officials discuss public matters — unless the messages are sent during a public meeting. In Wisconsin, courts have ruled that emails between officials conducting the public’s business are assumed to be public records subject to the State’s Open Records Law.

The “watchdog” role may at times require active tactics by the press, as in the court filing by The Milwaukee Journal Sentinel, which believes the public has a right to know what kind of business county officials were conducting through an alternative email system.

The newspaper cites long-held legal standing for the public to know what is going on in its courts, citing even an 1849 state law guaranteeing citizens the right to attend court sessions, as well as later state and federal court rulings on open courts and open records.

“Our founders knew that citizens couldn’t make informed decisions about public policy and the job their elected representative were doing unless they knew what they were up to,’’ said George Stanley, Journal Sentinel managing editor. “We think these records belong to the public, not to government officials who might be embarrassed by what’s in them. But it’s a right you have to keep fighting for, over and over again. And all of the state’s Freedom of Information advocates, including the Associated Press, the state broadcasters and the Wisconsin State Journal are with us.”

If successful, the motion by the newspaper and its partners to unseal the investigation’s records will let the public in Wisconsin judge for themselves whether the state’s “sunshine” laws were violated. It will mark another opportunity to set a new “openness standard” for the nation in using new technology in conducting the public’s business.

But it already marks yet another example where a news organization — in this case, one that already has a number of Pulitzer Prizes in recent years for great reporting — also is living up to its constitutional duty to represent the public.

 

Gene Policinski is chief operating officer of the Newseum Institute and senior vice president of the Newseum Institute’s First Amendment Center. Contact him at gpolicinski@newseum.org.