Giving Tucker Carlson Jan. 6 video exclusive violates First Amendment

by Michael I. Meyerson

When the Republican Speaker of the House Kevin McCarthy gave Fox News’ leading election denier, Tucker Carlson, exclusive access to surveillance footage from the Jan. 6, 2021, insurrection, he not only created a serious risk that information related to the security of the Capitol will be released to those who might plan the next attack. He also violated the First Amendment.

Normally, the press does not have a constitutional right of access to government information, such as videos from security cameras. The Supreme Court has repeatedly held that there is no First Amendment right to government information. As Chief Justice Warren Burger declared in 1978, the Constitution is not a Freedom of Information Act and does not mandate that the government affirmatively provide access to information.

But the Constitution does prohibit the government from providing selective access to important information to a favored few. During the 1977 New York City mayoral primary election between Mario Cuomo and Ed Koch, for example, both campaigns tried to exclude camera crews associated with one local television station from covering their events. The court held that such discrimination in access was unconstitutional, saying that once there is access granted to “some of the media, the First Amendment requires equal access to all of the media or the rights of the First Amendment would no longer be tenable.”

This concept of equal access even extends to the battlefield. In 1991, in preparation for Operation Desert Storm, the military announced plans to grant only certain members of the press access for the purpose of covering military activities in the Persian Gulf. The Nation magazine, whose reporters were excluded, sued. The court ruled in their favor and held that discrimination in granting access violates the First Amendment: “Regardless of whether the government is constitutionally required to open the battlefield to the press as representatives of the public … once the government does so it is bound to do so in a non-discriminatory manner.”

The harm to First Amendment values is even greater in the case of Carlson, since the discrimination in access is designed to favor someone who supports Rep. McCarthy’s partisan interests. The government is not permitted to welcome supporters to access information while simultaneously barring its critics. Indeed, the late Justice Ruth Bader Ginsburg stated that even though the State of California had no constitutional obligation to release the addresses of those it arrested, the State could not “release address information only to those whose political views were in line with the party in power.”

Such illegitimate partisan favoritism is precisely why McCarthy chose to make Carlson the sole recipient of the Jan. 6 videos and related information. It is almost a mathematical certainty that we will soon be inundated with a toxic flood of misinformation from Carlson, designed to comfort his viewers who are desperate to continue to believe both the lies about voter fraud in 2020 and the pernicious myths that those who invaded our Capitol were “patriots.”

The only way we will be able to combat this poisoning of public understanding will be if reputable media outlets demand immediate access to every bit of surveillance video, every transcript of witness interviews, every scrap of evidence that has been given to Fox’s Carlson. America needs the full free press to be ready, at a moment’s notice, to respond to the inevitable attempts by Carlson to use misleading editing and partial quotes out of context in his ongoing effort to undermine the historical record.

The First Amendment is grounded in the principle that the remedy for bad speech is more speech. It is true that answering Carlson will not prevent him from recklessly and carelessly releasing the sort of information that would aid future would-be insurrectionists. If he wants to identify where security cameras can be found or the location of secure safe rooms, no other can stop him.

The truth, however, can, and must be defended. In our internet age of instant communication and multimedia stories, that means that the responsible media must be able to respond instantly to attempts to mislead the public. The press needs to get ready now, so that not a single news cycle goes by without the true story being told.

Michael I. Meyerson (mmeyerson@ubalt.edu) is the DLA Piper Professor of Law at the University of Baltimore School of Law.