Happy Fourth of July, everyone!
Photo by me, on the Charles River.
Monday, July 4, 2011
Happy Independence Day!
I get to celebrate July 4th in Boston, and I can't tell you how excited I am to be here in one of our nations' oldest cities on a day like today.
Happy Fourth of July, everyone!
Photo by me, on the Charles River.
Happy Fourth of July, everyone!
Photo by me, on the Charles River.
Sunday, July 3, 2011
True confessions
I came to Cambridge for so many reasons, but ultimately with hopes that I would maybe turn my life's direction around — that I would not only find work with real meaning and reward, but also grab the the chance to do what I have wanted to do since as long as I can remember.
I'm almost 28 now and a lot has happened since then that could distract souls with more resolve than even I have. This "real world" and the nasty business of living in it has a way of making anybody cynical. But passion is what keeps us sane, and positive, and pleasant to be around. Anytime I meet someone sour, or crotchety or just plain angry with the whole world I recognize one of two things has probably happened. They either never found something to be passionate about — or perhaps they did find it, and then lost it somehow. I feel sorry for them in either case.
Now I have just three weeks left and I can only hope that when I return home I will be able to find opportunities in this pursuit to practice media law. And if I can't, at least I know I did all I could to get there.
We shall wait, and we shall see. Here's to the next three weeks and after, and whatever else they'll bring.
I'm almost 28 now and a lot has happened since then that could distract souls with more resolve than even I have. This "real world" and the nasty business of living in it has a way of making anybody cynical. But passion is what keeps us sane, and positive, and pleasant to be around. Anytime I meet someone sour, or crotchety or just plain angry with the whole world I recognize one of two things has probably happened. They either never found something to be passionate about — or perhaps they did find it, and then lost it somehow. I feel sorry for them in either case.
Now I have just three weeks left and I can only hope that when I return home I will be able to find opportunities in this pursuit to practice media law. And if I can't, at least I know I did all I could to get there.
We shall wait, and we shall see. Here's to the next three weeks and after, and whatever else they'll bring.
Friday, July 1, 2011
Amicus Curiae
My goals this week at the CMLP have been twofold: continue updating our Legal Guide's section on access to government information, and review a brief to be filed by amicus curiae (the Reporter's Committee for Freedom of the Press) so we can decide whether we should sign on to it.
Open Records issues
Limiting access to state citizens
I recently got stuck trying to summarize the muck that is Tennessee "open" records law for our Legal Guide. I don't mean to pick on Tennessee, but it is an excellent example of several issues that journalists and media lawyers face with open records laws.
For some reason, Tennessee is one of several states that only provides access to its records if you are a citizen of the state. I'm not sure the policy rationale. You are still charged a fee for any copies, so I can't see a financial reason to limit access. It also doesn't make much sense in 2011, because if you really need Tennessee records, you can ask someone else (such as a law firm) to file the request for you. But apparently this is not an uncommon requirement and I only hope that in the age of the Internet, states will start eliminating this restriction on public records.
Exhaustive exemptions
Aside from the odd requirement of citizenship, the state also has a very exhaustive list of exemptions for "confidential" information. Personnel files (traditionally open, though with information like SSNs redacted) of any law enforcement officer are especially difficult to get. If you make a request, state law requires your name, address, phone numbers and driver license number to be recorded AND given to the officer whose file you are requesting. If there is "personal information," it is ultimately up to the chief law enforcement officer whether or not it will be disclosed. Even if he or she decides to disclose it, the officer gets a chance to oppose the request.
As a caveat, this may be about protecting the officer's due process rights if someone is trying to investigate the officer for possible disciplinary action. Perhaps the state is concerned that the officer could be investigated and terminated without even knowing that he or she was suspected of wrongdoing. But if that's true, I still don't understand why this applies to personnel files of law enforcement and not other state employees.
Personally, I find it disturbing that certain records are considered public, yet the decision about whether or not to disclose this "public" information is left to the unbridled discretion of a chief law enforcement officer, not traditionally known among journalists as being very "open" with information.
Enforcing open records provisions
Public agencies really don't like complying with open records laws as a general rule. So if you want to sue them to enforce the law and enjoin them from future violations, many states will allow you to do so — however, they won't allow you any damages, and they may not have any provision for fee shifting. So if you get $0 for bringing the suit, how often do attorneys in those states take these cases?
That's why I was glad to hear of Vermont's recent amendment to its open records law, requiring that the public agency pay the plaintiff's attorney's fees if the plaintiff substantially prevails in the suit. States need provisions like these if they are serious about transparency. In other words: if you have a right, you need a remedy.
Amicus curiae
The second goal of the week was my favorite task so far. Amicus curiae are "friends of the court." They are usually filed by organizations, though they can be filed by several individuals (usually politicians) and are submitted for the court's consideration in deciding a particular case. Amicus curiae are not parties to the litigation, but they have an interest in some issue that the case will resolve.
Because they aren't parties to the case the court chooses whether to accept the brief or not. The CMLP writes several and joins several, and this particular issue related to a reporter's privilege not to be subpoenaed to give up nonconfidential materials as evidence in unrelated cases.
Subpoenas of this nature are becoming more frequent and more troubling. Instead of doing research/discovery to get the same information the reporter has used for writing a story, they take a quicker route and subpoena the reporter to hand over all their sources/notes etc. If you have a regular beat reporter who writes on certain litigation-prone issues (e.g. your cops/crime reporters, your Wall Street reporters, etc.) this can become a serious problem. There's the time it takes to comply with lengthy subpoena requests that demand all the notes the reporter has over several years span, and the cost on the company to making sure they are in compliance. Attorney fees alone can be thousands of dollars. It also greatly compromises journalists' independence to be pulled into lawsuits and have their notes used as tools in litigation.
That's why many states recognize a reporter's privilege. Note that this is different from a shield law, which protects a reporter from being forced to identify anonymous sources. This privilege, broadly speaking, protects journalists from subpoenas in suits in which they are not a party. This amicus brief handled just such an issue and was very well written. It was a great experience to be a small part of the process and I certainly hope this reporter is spared from complying with a tedious subpoena.
As a sidenote, tonight the Berkterns are headed to the Boston Museum of Fine Art, which allows visitors in for free on Fridays during the summer and offers a cash bar. Right now the MFA has the Chihuly exhibit on display and I've been excited to see it. One other Berktern and I tried to go to the museum a while ago, but we grossly miscalculated the travel time and arrived too close to closing time to get to go through more than a few rooms. (Lucky for us, we arrived so late that they didn't charge us!) I've been determined to go back so I'm excited to make a return trip tonight. I'll try to post photos this weekend.
Update (07/04):
Well, my camera battery died, so I unfortunately had to take photos with my cell phone camera. But, here's some of my favorite photos from the Chihuly exhibit at the Boston MFA:
Open Records issues
Limiting access to state citizens
I recently got stuck trying to summarize the muck that is Tennessee "open" records law for our Legal Guide. I don't mean to pick on Tennessee, but it is an excellent example of several issues that journalists and media lawyers face with open records laws.
For some reason, Tennessee is one of several states that only provides access to its records if you are a citizen of the state. I'm not sure the policy rationale. You are still charged a fee for any copies, so I can't see a financial reason to limit access. It also doesn't make much sense in 2011, because if you really need Tennessee records, you can ask someone else (such as a law firm) to file the request for you. But apparently this is not an uncommon requirement and I only hope that in the age of the Internet, states will start eliminating this restriction on public records.
Exhaustive exemptions
Aside from the odd requirement of citizenship, the state also has a very exhaustive list of exemptions for "confidential" information. Personnel files (traditionally open, though with information like SSNs redacted) of any law enforcement officer are especially difficult to get. If you make a request, state law requires your name, address, phone numbers and driver license number to be recorded AND given to the officer whose file you are requesting. If there is "personal information," it is ultimately up to the chief law enforcement officer whether or not it will be disclosed. Even if he or she decides to disclose it, the officer gets a chance to oppose the request.
As a caveat, this may be about protecting the officer's due process rights if someone is trying to investigate the officer for possible disciplinary action. Perhaps the state is concerned that the officer could be investigated and terminated without even knowing that he or she was suspected of wrongdoing. But if that's true, I still don't understand why this applies to personnel files of law enforcement and not other state employees.
Personally, I find it disturbing that certain records are considered public, yet the decision about whether or not to disclose this "public" information is left to the unbridled discretion of a chief law enforcement officer, not traditionally known among journalists as being very "open" with information.
Enforcing open records provisions
Public agencies really don't like complying with open records laws as a general rule. So if you want to sue them to enforce the law and enjoin them from future violations, many states will allow you to do so — however, they won't allow you any damages, and they may not have any provision for fee shifting. So if you get $0 for bringing the suit, how often do attorneys in those states take these cases?
That's why I was glad to hear of Vermont's recent amendment to its open records law, requiring that the public agency pay the plaintiff's attorney's fees if the plaintiff substantially prevails in the suit. States need provisions like these if they are serious about transparency. In other words: if you have a right, you need a remedy.
Amicus curiae
The second goal of the week was my favorite task so far. Amicus curiae are "friends of the court." They are usually filed by organizations, though they can be filed by several individuals (usually politicians) and are submitted for the court's consideration in deciding a particular case. Amicus curiae are not parties to the litigation, but they have an interest in some issue that the case will resolve.
Because they aren't parties to the case the court chooses whether to accept the brief or not. The CMLP writes several and joins several, and this particular issue related to a reporter's privilege not to be subpoenaed to give up nonconfidential materials as evidence in unrelated cases.
Subpoenas of this nature are becoming more frequent and more troubling. Instead of doing research/discovery to get the same information the reporter has used for writing a story, they take a quicker route and subpoena the reporter to hand over all their sources/notes etc. If you have a regular beat reporter who writes on certain litigation-prone issues (e.g. your cops/crime reporters, your Wall Street reporters, etc.) this can become a serious problem. There's the time it takes to comply with lengthy subpoena requests that demand all the notes the reporter has over several years span, and the cost on the company to making sure they are in compliance. Attorney fees alone can be thousands of dollars. It also greatly compromises journalists' independence to be pulled into lawsuits and have their notes used as tools in litigation.
That's why many states recognize a reporter's privilege. Note that this is different from a shield law, which protects a reporter from being forced to identify anonymous sources. This privilege, broadly speaking, protects journalists from subpoenas in suits in which they are not a party. This amicus brief handled just such an issue and was very well written. It was a great experience to be a small part of the process and I certainly hope this reporter is spared from complying with a tedious subpoena.
As a sidenote, tonight the Berkterns are headed to the Boston Museum of Fine Art, which allows visitors in for free on Fridays during the summer and offers a cash bar. Right now the MFA has the Chihuly exhibit on display and I've been excited to see it. One other Berktern and I tried to go to the museum a while ago, but we grossly miscalculated the travel time and arrived too close to closing time to get to go through more than a few rooms. (Lucky for us, we arrived so late that they didn't charge us!) I've been determined to go back so I'm excited to make a return trip tonight. I'll try to post photos this weekend.
Update (07/04):
Well, my camera battery died, so I unfortunately had to take photos with my cell phone camera. But, here's some of my favorite photos from the Chihuly exhibit at the Boston MFA:
Saturday, June 25, 2011
Net Neutrality
An area of interest for me and of particular importance to the Berkman Center is the debate on net neutrality. In essence, net neutrality supports equal access for all people, to all online content. The debate changes flavor based on numerous factors, including geography.
For example, in China, the debate takes on the tone of free speech and censorship. Can/should the government limit access to certain content? How does that decision affect the rest of the world, if at all? In the United States, the discussion sounds more economic in nature, focusing on whether or not Internet service providers should be allowed to charge customers extra for accessing certain content. For example, can a provider force customers to pay twice as much if they want to access social media? What affect will that have on the development of the Internet among certain less privileged groups? What about on the way social media are used?
The concept really crosses all platforms at the Berkman Center, from legal issues about the power of the FCC over the Internet, to the effect on journalists trying to expand online through social media, to sociological effects of limiting access to certain groups of people. So, you could say the topic interests all of us here at the Berkman Center and doesn't fit neatly into any one project.
I e-mailed Professor Jonathan Zittrain about net neutrality several weeks ago, commenting that the original model of the Internet he presented to us—a group of providers all providing propietary services, such as CompuServe and AOL—greatly resembled the discussion today regarding net neutrality. The Internet eventually moved from a jumble of propietary services to a group of networked users all using cross-platform services—but if American providers have their way, I foresee we could end up back to the paleolithic days of the Internet when only select users accessed certain services. Prof. Zittrain suggested if there was interest, we could try a discussion group among the Berkterns.
Sidenote: Zittrain is a professor of Law, Computer Science, and Public Policy—all at the same time, all at Harvard. He co-founded the Berkman Center, has been a visiting professor at Oxford and Stanford, and serves on the Internet Society's Board of Trustees. And I know few professors more down to earth and easy to like than him. Yeah. Feel inadequate yet?
Anywho, I sent out emails to our listserve asking if there would be interest in that, and got an absolutely overwhelming response (at least 10 people responded in less than an hour). After some discussion amongst ourselves, we decided that there would be plenty of interest in meeting repeatedly on this very issue. One intern even started proposing articles on this topic we can all read together, so we have the first article already picked. I'll also be reserving a conference room for us and inviting Berkman Center faculty to join us.
I was told in the beginning that this internship would be what you made of it. You could say I'm taking that to heart.
For example, in China, the debate takes on the tone of free speech and censorship. Can/should the government limit access to certain content? How does that decision affect the rest of the world, if at all? In the United States, the discussion sounds more economic in nature, focusing on whether or not Internet service providers should be allowed to charge customers extra for accessing certain content. For example, can a provider force customers to pay twice as much if they want to access social media? What affect will that have on the development of the Internet among certain less privileged groups? What about on the way social media are used?
The concept really crosses all platforms at the Berkman Center, from legal issues about the power of the FCC over the Internet, to the effect on journalists trying to expand online through social media, to sociological effects of limiting access to certain groups of people. So, you could say the topic interests all of us here at the Berkman Center and doesn't fit neatly into any one project.
I e-mailed Professor Jonathan Zittrain about net neutrality several weeks ago, commenting that the original model of the Internet he presented to us—a group of providers all providing propietary services, such as CompuServe and AOL—greatly resembled the discussion today regarding net neutrality. The Internet eventually moved from a jumble of propietary services to a group of networked users all using cross-platform services—but if American providers have their way, I foresee we could end up back to the paleolithic days of the Internet when only select users accessed certain services. Prof. Zittrain suggested if there was interest, we could try a discussion group among the Berkterns.
Sidenote: Zittrain is a professor of Law, Computer Science, and Public Policy—all at the same time, all at Harvard. He co-founded the Berkman Center, has been a visiting professor at Oxford and Stanford, and serves on the Internet Society's Board of Trustees. And I know few professors more down to earth and easy to like than him. Yeah. Feel inadequate yet?
Anywho, I sent out emails to our listserve asking if there would be interest in that, and got an absolutely overwhelming response (at least 10 people responded in less than an hour). After some discussion amongst ourselves, we decided that there would be plenty of interest in meeting repeatedly on this very issue. One intern even started proposing articles on this topic we can all read together, so we have the first article already picked. I'll also be reserving a conference room for us and inviting Berkman Center faculty to join us.
I was told in the beginning that this internship would be what you made of it. You could say I'm taking that to heart.
Wednesday, June 22, 2011
The Online Media Legal Network
This week continues my push to get more attorneys involved with the Online Media Legal Network, a pro bono initiative that provides online journalists with free and reduced-fee legal assistance. It's been nice combining my old life and my new one in this manner, reaching out to journalism foundations and media/nonprofit attorneys to be part of the project. I've seen some strong interest from attorneys who also think media law is their calling. Hopefully a few of them will remember my name in about a year!
Aside from my various Berkman-related projects, the past week has been full — the Berkterns have been quite sociable, with a Kentucky-themed gathering on Saturday (hosted by another fellow Kentuckian Berktern, what are the odds?).
I also started a trek along the freedom trail, which over its 2.5 miles takes tourists through an array of historic sites, including Paul Revere's tomb AND his house, the old city hall, the USS Constitution and several other spots.
This is the plaque outside the Cranary Graveyard, one stop along the Freedom Trail.
I hope to continue over the next couple of weeks, if the weather will allow.
Aside from my various Berkman-related projects, the past week has been full — the Berkterns have been quite sociable, with a Kentucky-themed gathering on Saturday (hosted by another fellow Kentuckian Berktern, what are the odds?).
I also started a trek along the freedom trail, which over its 2.5 miles takes tourists through an array of historic sites, including Paul Revere's tomb AND his house, the old city hall, the USS Constitution and several other spots.
This is the plaque outside the Cranary Graveyard, one stop along the Freedom Trail.
I hope to continue over the next couple of weeks, if the weather will allow.
Monday, June 20, 2011
Kentucky needs an anti-SLAPP law!
One of the cooler parts of my internship here is hearing about modern trends in litigation, something we talk about all too rarely in law school. A particularly interesting development is the anti-SLAPP law -- SLAPP is an acronym for a "strategic lawsuit against public participation" and generally the term is used for 1) suits that have no chance of winning but which are cheaper to settle quickly than to dispute, and 2) disproportionately affect freedom of speech because the suits focus on citizen media/journalists.
For example, America Inc. doesn't like the local weekly newspaper writing about the attorney general's recent investigation of is hiring practices. So it decides to sue for defamation, knowing the paper is so bad off these days that it can't afford to defend a suit, even if it knows America Inc. has no chance of winning. So, it settles -- giving the company a lump sump to make the suit go away, and avoiding writing about the incident because it knows America Inc. could easily sue again.
Around 25-30 states are passing anti-SLAPP laws, which allow a defendant to seek relief if he/she thinks he's a victim of a SLAPP suit. If successful, he may be able to recover not only the court fees, but also a sum of money from the plaintiff. Such suits have been famous in cases such as the successful anti-SLAPP countersuit against Barbara Streisand -- she sued the California Coastal Records Project because it took a photo of her house, taken from a helicopter flying in public airspace. I mean, really Babs? Dan Snyder, owner of the Redskins, also got a taste of anti-SLAPP law when he sued a paper that published an entirely accurate listing of Snyder's very public failings as owner of the baseball team.
Bottom line for media lawyers: If you're going to work in media law defending journalists, anti-SLAPP laws are an incredibly valuable tool -- if you want to get paid (and let's face it, it does eventually come down to brass tax, like it or not) you need to know all of your fee-shifting tools. Your clients may be able to afford to pay you, but then again great cases may not have clients who can afford your hourly rate. If your heart still lies with defending citizen media but your student loans don't, this is a mechanism you can't afford to forget.
Bottom line for citizen journalists: I don't know anyone who works in journalism who isn't occasionally afraid of being sued. It's even worse if you know someone who can afford to file suit and LOSE just to make your life harder. These anti-SLAPP acts ARE a valuable tool, *if* your state passes one with any teeth. Check and see if your state has one, and if not, it's worth an editorial, a note to your legislature, or whatever you think is best to promote passage where you live.
Bottom line for Kentucky -- pass an anti-SLAPP law!
For example, America Inc. doesn't like the local weekly newspaper writing about the attorney general's recent investigation of is hiring practices. So it decides to sue for defamation, knowing the paper is so bad off these days that it can't afford to defend a suit, even if it knows America Inc. has no chance of winning. So, it settles -- giving the company a lump sump to make the suit go away, and avoiding writing about the incident because it knows America Inc. could easily sue again.
Around 25-30 states are passing anti-SLAPP laws, which allow a defendant to seek relief if he/she thinks he's a victim of a SLAPP suit. If successful, he may be able to recover not only the court fees, but also a sum of money from the plaintiff. Such suits have been famous in cases such as the successful anti-SLAPP countersuit against Barbara Streisand -- she sued the California Coastal Records Project because it took a photo of her house, taken from a helicopter flying in public airspace. I mean, really Babs? Dan Snyder, owner of the Redskins, also got a taste of anti-SLAPP law when he sued a paper that published an entirely accurate listing of Snyder's very public failings as owner of the baseball team.
Bottom line for media lawyers: If you're going to work in media law defending journalists, anti-SLAPP laws are an incredibly valuable tool -- if you want to get paid (and let's face it, it does eventually come down to brass tax, like it or not) you need to know all of your fee-shifting tools. Your clients may be able to afford to pay you, but then again great cases may not have clients who can afford your hourly rate. If your heart still lies with defending citizen media but your student loans don't, this is a mechanism you can't afford to forget.
Bottom line for citizen journalists: I don't know anyone who works in journalism who isn't occasionally afraid of being sued. It's even worse if you know someone who can afford to file suit and LOSE just to make your life harder. These anti-SLAPP acts ARE a valuable tool, *if* your state passes one with any teeth. Check and see if your state has one, and if not, it's worth an editorial, a note to your legislature, or whatever you think is best to promote passage where you live.
Bottom line for Kentucky -- pass an anti-SLAPP law!
Thursday, June 16, 2011
I say the more open, the better off we all are
Today I've been working primarily on the legal guide, focusing on adding summations of open records/open meetings laws to states that we are currently missing. So far, I have done summations for Arizona (not posted) and am working on one for Tennessee.
This project has been especially interesting for me now, because before I only knew public records law based on what I had been told by colleagues or what I'd heard at journalism conferences. I had no idea how to look up a public records statute and even if I did, I'm not sure I would have felt comfortable figuring out what it said. Now I'm seeing these laws through the lens of a law student, looking at what the statute clearly leaves out and to which agencies its directives applies -- is the statutory remedy permissive (e.g., the court may award attorney's fees) or is it mandatory (e.g., the court shall award attorney's fees?) Does it provide a procedure for applying, and if so does it require a writing? Does it define what a writing can be? Does it provide a response time for open records requests, or does it only say the response time must be -- the lawyer's favorite -- "reasonable"?
Little details like these give a clearer picture of what is "open," and what is still hazy. You certainly get an interesting vibe from a state looking at what information it considers "public." For example, does the state have a broad list of exemptions that may or may not have clear public policy explanations (ahem, Tennessee), or does it list few exemptions, with a clear slant toward openness? Admittedly my bias from years working in journalism is to have an open government: the more access, the easier it is to find kickbacks. It's hard to fight that instinct after years of working to give the public more information about the workings of its government.
There are certainly well-educated, reasoned minds who would differ. In particular, I'm thinking of the author of Stealth Democracy, who hypothesizes that America would altogether be happier (and probably run smoother) with much less public access. The author points out that the court system, the branch of government we tend to see as more mystic and, ironically, the least open, as being the one with the highest ratings in public opinion polls.
I say ironically only because the court system and all its inner workings is probably more open than any other contemporary court, and it certainly was more open than any court system at the time of our nation's founding. Think back to the times of English courts which disallowed a defense for treason, of secret tribunals where the accused had no right to see the evidence against him, the same court system which disallowed anyone with an economic interest in the case to testify. Surely it seems like an improvement?
Congress, on the other hand, with such constant media attention, is seen as the least effective branch of government and the one with strongest negative responses in opinion polls. This negativity leads to frustration and indecisiveness amongst voters, with many voters feeling constantly disenchanted with the people whom they elected and becoming less involved in elections as a result. If we want democracy to keep running, we should scale back on public access instead of putting everything on the table.
The author makes several important points which would be impossible to summarize here (and admittedly you'd only be reading through my bias) so if you're interested in the effect of open records and public access to information, I'd recommend reading this book to see another viewpoint.
As for me, I'll stick with my strong-willed —perhaps even naive— belief that the more information a democratic public has, the better.
This project has been especially interesting for me now, because before I only knew public records law based on what I had been told by colleagues or what I'd heard at journalism conferences. I had no idea how to look up a public records statute and even if I did, I'm not sure I would have felt comfortable figuring out what it said. Now I'm seeing these laws through the lens of a law student, looking at what the statute clearly leaves out and to which agencies its directives applies -- is the statutory remedy permissive (e.g., the court may award attorney's fees) or is it mandatory (e.g., the court shall award attorney's fees?) Does it provide a procedure for applying, and if so does it require a writing? Does it define what a writing can be? Does it provide a response time for open records requests, or does it only say the response time must be -- the lawyer's favorite -- "reasonable"?
Little details like these give a clearer picture of what is "open," and what is still hazy. You certainly get an interesting vibe from a state looking at what information it considers "public." For example, does the state have a broad list of exemptions that may or may not have clear public policy explanations (ahem, Tennessee), or does it list few exemptions, with a clear slant toward openness? Admittedly my bias from years working in journalism is to have an open government: the more access, the easier it is to find kickbacks. It's hard to fight that instinct after years of working to give the public more information about the workings of its government.
There are certainly well-educated, reasoned minds who would differ. In particular, I'm thinking of the author of Stealth Democracy, who hypothesizes that America would altogether be happier (and probably run smoother) with much less public access. The author points out that the court system, the branch of government we tend to see as more mystic and, ironically, the least open, as being the one with the highest ratings in public opinion polls.
I say ironically only because the court system and all its inner workings is probably more open than any other contemporary court, and it certainly was more open than any court system at the time of our nation's founding. Think back to the times of English courts which disallowed a defense for treason, of secret tribunals where the accused had no right to see the evidence against him, the same court system which disallowed anyone with an economic interest in the case to testify. Surely it seems like an improvement?
Congress, on the other hand, with such constant media attention, is seen as the least effective branch of government and the one with strongest negative responses in opinion polls. This negativity leads to frustration and indecisiveness amongst voters, with many voters feeling constantly disenchanted with the people whom they elected and becoming less involved in elections as a result. If we want democracy to keep running, we should scale back on public access instead of putting everything on the table.
The author makes several important points which would be impossible to summarize here (and admittedly you'd only be reading through my bias) so if you're interested in the effect of open records and public access to information, I'd recommend reading this book to see another viewpoint.
As for me, I'll stick with my strong-willed —perhaps even naive— belief that the more information a democratic public has, the better.
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