Free Speech and Transparency in a Digital Era

Russell L. Weaver at IMODEV: ” Governmental openness and transparency is inextricably intertwined with freedom of expression. In order to engage in scrutinize government, the people must have access to information regarding the functioning of government. As the U.S. Supreme Court has noted, “It is inherent in the nature of the political process that voters must be free to obtain information from divers sources in order to determine how to cast their votes”. As one commentator noted, “Citizens need to understand what their government is doing in their name.”

Despite the need for transparency, the U.S. government has frequently functioned opaquely.  For example, even though the U.S. Supreme Court is a fundamental component of the U.S. constitutional system, confirmation hearings for U.S. Supreme Court justices were held in secret for decades. That changed about a hundred years ago when the U.S. Senate broke with tradition and began holding confirmation hearings in public.  The results of this openness have been both interesting and enlightening: the U.S. citizenry has become much more interested and involved in the confirmation process, galvanizing and campaigning both for and against proposed nominees. In the 1930s, Congress decided to open up the administrative process as well. For more than a century, administrative agencies were not required to notify the public of proposed actions, or to allow the public to have input on the policy choices reflected in proposed rules and regulations. That changed in the 1930s when Congress adopted the federal Administrative Procedure Act (APA). For the creation of so-called “informal rules,” the APA required agencies to publish a NOPR (notice of proposed rulemaking) in the Federal Register, thereby providing the public with notice of the proposed rule. Congress required that the NOPR provide the public with various types of information, including “(1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. »  In addition to allowing interested parties the opportunity to comment on NOPRs, and requiring agencies to “consider” those comments, the APA also required agencies to issue a “concise general statement” of the “basis and purpose” of any final rule that they issue.  As with the U.S. Supreme Court’s confirmation processes, the APA’s rulemaking procedures led to greater citizen involvement in the rulemaking process.  The APA also promoted openness by requiring administrative agencies to voluntarily disclose various types of internal information to the public, including “interpretative rules and statements of policy.”

Congress supplemented the APA in the 1960s when it enacted the federal Freedom of Information Act (FOIA). FOIA gave individuals and corporations a right of access to government held information. As a “disclosure” statute, FOIA specifically provides that “upon any request for records which reasonably describes such records and is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.”  Agencies are required to decide within twenty days whether to comply with a request. However, the time limit can be tolled under certain circumstances. Although FOIA is a disclosure statute, it does not require disclosure of all governmental documents.  In addition to FOIA, Congress also enacted the Federal Advisory Committee Act (FACA),  the Government in the Sunshine Act, and amendments to FOIA, all of which were designed to enhance governmental openness and transparency.  In addition, many state legislatures have adopted their own open records provisions that are similar to FOIA.

Despite these movements towards openness, advancements in speech technology have forced governments to become much more open and transparent than they have ever been.  Some of this openness has been intentional as governmental entities have used new speech technologies to communicate with the citizenry and enhance its understanding of governmental operations.  However, some of this openness has taken place despite governmental resistance.  The net effect is that free speech, and changes in communications technologies, have produced a society that is much more open and transparent.  This article examines the relationship between free speech, the new technologies, and governmental openness and transparency….(More).