The Mercury News

Giving Carlson Jan. 6 video violates First Amendment

- By Michael I. Meyerson Michael I. Meyerson is a professor of law at the University of Baltimore School of Law. ©2023 The Baltimore Sun. Distribute­d by Tribune Content Agency.

When 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 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.”

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.

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