In early 2018, stories began circulating that something troubling was happening at the United States-Mexico border. The reports claimed that the United States government was separating migrant families and then holding children (as well as adults) by the thousands in crowded, possibly inhumane environments. There were alarming accounts of children who were sick, dirty, hungry, neglected, and sleeping on concrete floors.
Americans, of course, demanded answers: What was happening at these migrant detention centers? Why was it happening? What were the official policies involved? Were the government's actions appropriate? Were they legal? In other words, this was a textbook example of an issue crying out for an "uninhibited, robust, and wide-open" public debate.
But before that could happen, the public needed to know what, exactly, was going on. The limited and sporadic information made it difficult for concerned citizens to understand the issues, and the often-unfamiliar sources behind these reports led to confusion about who or what to believe. What the public needed at this moment, it seemed, was a group of trusted, nongovernmental actors who could shed light on the situation-skilled professionals with the necessary resources to gather the pertinent information and disseminate it broadly. Ideally, these third-party actors would also supplement this information with expert analysis and place it in historical, social, and political context.
In the United States, we are fortunate enough to have such third-party entities-the press. According to Justice Potter Stewart, the press is "the only organized private business that is given explicit constitutional protection." The First Amendment singles out the press, the United States Supreme Court has explained, because its members serve as the public's "agent[s]," "surrogates," and "eyes and ears." Yet despite this explicit constitutional shout-out, there was little that journalists could do when the government refused to grant them to access to the migrant detention centers. Indeed, very few members of the press were ever allowed inside the centers, and those who did gain access received only brief, heavily restricted tours that were limited to a small part of the facilities. They also were prohibited from talking to any children or taking photographs or videos.
Sonja R. West,
The Majoritarian Press Clause
, 2020 U. Chi. Legal F. 311
Available at: https://digitalcommons.law.uga.edu/fac_artchop/1394