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.”
