Cornell University

Article

A First Amendment Right to Know

David S. Ardia

Reef C. Ivey II Excellence Fund Term Professor of Law, University of North Carolina School of Law, and Faculty Co-Director, UNC Center for Media Law and Policy. Thanks to Margaret Kwoka, Bill Marshall, Mary-Rose Papandrea, and participants at the UNC Faculty Scholarship Workshop for helpful comments and discussion. Thank you also to Amy Price, Blythe Riggan, Kloee Sander Placke, and Kalysta Strauss for their research assistance.

26 May 2026

This Article tackles an increasingly important question: Can police round up people on American streets and keep secret the names of those they detain without violating the First Amendment? Alarmingly, the government made this very argument in the summer of 2020 when it sought to break up Black Lives Matter protests occurring in cities across the country. Based in part on a Supreme Court decision from the 1970s involving access to prisons, the government argued that the First Amendment imposes no constraints on government secrecy. If it is true that the government can shield its exercise of police power from public oversight, then this raises profound concerns about accountability and the rule of law in a constitutional democracy.

In this Article, I dissect the Supreme Court’s tangled web of “right to know” cases, uncovering a glaring inconsistency in the Court’s First Amendment jurisprudence: while the Court champions open criminal trials, it has left the door open for unchecked government secrecy elsewhere. This is a perilous place to be for a republic founded on the principle of self-government. As recent events have shown, the norms of democratic governance are dangerously shallow.

Reconciling seemingly conflicting lines of Supreme Court cases, the Article establishes that the First Amendment’s guarantees extend beyond the courtroom to encompass a broader right of access to government information. It then builds upon the Supreme Court’s judicial access framework to articulate a general First Amendment right to know, applicable across all branches of government. Focusing on the context of police power and arrests, the Article demonstrates that public access to arrestee information is essential for holding the government accountable and preventing abuses of power. It concludes by showing that access to this information is a cornerstone of democratic accountability, ensuring that the government’s use of force and coercion remains subject to public scrutiny and aligns with the principles of self-government.

To read this Article, please click here: A First Amendment Right to Know