Public Importance: Balancing Proprietary Interests and the Right to Know

Abstract

Articulating a coherent, all-encompassing First Amendment doctrine for freedom of speech and of the press has so far eluded every scholar who has tried, not least because of the variety of analytical approaches and potentially dispositive factors in Supreme Court jurisprudence. For example, the same regulation might be enforceable in one medium, but not another; in one forum, but not another. Enforceability may depend on the regulator's purpose and drafting skill, or not, depending in turn on whether the speech deserves full protection, some protection, or no protection at all. Sometimes enforceability depends on the speaker's intent, or knowledge, or care . . . or none of those factors. Sometimes it depends on the speaker's status or access to alternative communication channels; sometimes it depends on the status or access of one who objects to the speaker's speech.

In a handful of cases, however, the analysis focuses on the speaker's audience - the listener or reader or public in general. Because the rights of the listener are poorly defined, and the power of the public vigorously disputed, consistency is even harder to find in these cases. This article endeavors to bring some coherence to this body of law by identifying its source and surveying its contemporary application. Simply stated, this article argues that the First Amendment's penumbral "right to know" is the source of a "public importance test" that the Supreme Court has reluctantly, but ineluctably, adopted to help mediate between the proprietary claims of private citizens and the reportorial imperatives of the press.

Keywords: First Amendment, freedom of speech, freedom of the press, enforcability, right to know, news media

JEL Classification: K19, K29, K39, L82