On citizens' right to information

One of the crucial questions that lawyers, philosophers, politicians, and journalists struggled with during the twentieth century was how to "guarantee that informative and accurate news would flow to the public through the press."1 Traditional answers to this question assumed that the key to a well-informed citizenry lay within speech rights. The idea was that speech rights would create a rich flow of information from which diligent citizens could learn the important facts and form their own views about public issues. However, in digital democracies, speech rights are very well entrenched, yet many people are still largely uninformed. To be sure, ignorance is sometimes the result of negligence, but it is undeniable that citizens are often the victims of disinformation campaigns, fake news, and personalized online propaganda. These phenomena make it difficult to understand public issues even if one is disposed to do so. And, importantly, they seem to confirm what scholars like Lebovic himself—but also Lippmann or Habermas—have lamented: speech rights are not enough to guarantee that the public receives an adequate supply of news. The traditional answer to Lebovic's question is, then, at least partially incorrect. Drawing on these insights, this article shifts the focus from speech rights towards the rights of the public, and argues that, if we want to guarantee that an adequate supply of news reaches the public, we need to start taking more seriously the idea that citizens have a right to be well informed. As I will show, this idea repeatedly appears in journalism theory and practice, as well as in democratic and legal theory, but it remains a somewhat vague notion: it is not clear what it might mean, nor what its normative implications could be. This article aims to fill this conceptual gap by conceptualizing what I will call citizens' right to information (henceforth CRI). One motivation for theorizing CRI is to show that a positive right of the citizenry to be provided with quality news is—contrary to appearances—fully compatible with free speech and journalistic freedoms. The key here lies in conceiving this as a moral right which imposes moral—but not legal—obligations on journalists while, at the same time, compelling the state to foster quality journalism through adequate media policies. Seen in this light, CRI may become a useful landmark whose conceptual clarification could illuminate other discussions, such as journalism ethics. Indeed, it seems that journalists' special democratic rights and duties could hardly be explained without assuming something like CRI. Moreover, CRI might illuminate the discussion on what journalism can mean in our digital era—in which the line separating professional journalists from lay citizens is increasingly blurred—by linking the profession to an ethical commitment to provide citizens with the information they, as such, have a right to. Finally, the concept of CRI might also be useful to guide the discussion of alternative models for quality journalism, which has been recently sparked by the collapse of the traditional advertisement-based funding system. After all, such discussion—just as that of media policy, including Lebovic's question—could be seen as a debate on what is the best way to provide citizens the informational service they have a right to. Of course, all these discussions can be only superficially addressed here. But by connecting them to CRI, this article will offer a perspective to look at them afresh. The article is structured as follows. Section II lays the groundwork for a democratic right to be well informed, by reviewing previous appearances of this idea, and by contextualizing it within the map of communication rights. Section III offers a systematic framework for justifying and conceptualizing CRI. After showing four possible ways to justify this right, I proceed to spell out its four main characteristics. First, its function is to ensure that citizens are provided with a good informational service that enables them to become well informed and therefore competent political decision-makers. Second, and consequently, its right-holders are all those with participatory rights. Third, its content is not what people want to know, or any kind of information about politics, but specifically information that is useful for updating political knowledge (that is, democratically relevant information). Finally, its two main correlative duties apply, respectively, to journalists and to the state. These two last characteristics—the content and the correlative duties of CRI—are highly controversial: any complete answer to them requires committing to contested normative claims about democracy. My strategy for navigating these difficulties is to draw a distinction between the general concept of CRI and its different conceptions. The general concept, I contend, concerns the democratic, moral, and positive right of citizens to be offered democratically relevant information. As I will argue, accepting this general concept does not require endorsing any contested claims about democracy. It is only when we try to fine-tune the content or the correlative duties of CRI that we need to take sides on issues upon which disagreement abounds. Each one of these specific, but controversial, definitions of CRI constitutes one plausible conception of this right. This article, I have to say, will not identify—much less defend—any of these conceptions. Rather, its purpose is just to lay out an analytical framework for further discussion, about both the concept and the different conceptions of CRI. Despite being incomplete, this analysis will be enough to distinguish the right to be well informed from two other rights with which it is often confounded: freedom of information and the public's right to know. The idea that citizens have a right to receive democratically relevant information is well established in democratic societies. It repeatedly appears in journalism theory and practice, as well as in democratic and legal theory, albeit under different names. In this section, I first offer a brief overview of these appearances, which—despite using different nomenclature—share the intuition that citizens have a right to be well informed. I then locate this idea on the map of communication rights, defining it as a right of the public, rather than as a speech right. The field of journalism is where the idea of a citizens' right to information has had the most clear and persistent influence. Journalists often justify their more controversial activities, such as whistleblowing or intruding on individuals' privacy, by appealing to citizens' interest in being—or their right to be—well informed. Such journalistic practice is supported by most professional codes of ethics, which often present public service as the profession's main value. What is more, empirical research on journalists' self-perception shows that they usually think of themselves primarily as public servants who work for citizens, rather than for their actual employers, which are often private companies.2 Journalism theory echoes this idea. Scholars tend to agree that the profession's core element is its ethical commitment to informing citizens of what they need to know to become competent political decision-makers, rather than of what they are merely curious about, or have a private interest in knowing.3 As Elliot and Ozar point out, journalism is not usually conceived as serving mere audiences, but rather as providing a service to the entire political community: that is, to the collection of individuals who deal with public matters. Thus, unlike other professionals such as doctors or teachers, journalists are not committed to serving particular individuals or specific groups of people, but rather the citizenry at large.4 This explains why, according to most theorists, journalists ought to treat their audiences as citizens rather than as consumers. What is probably the most famous formulation of journalism's basic tenet was coined by Kovach and Rosenstiel, who claim: "The primary purpose of journalism is to provide citizens with the information they need to be free and self-governing."5 Often, this predominant view of journalism explicitly invokes the idea of a right, as when Pamela Taylor Jackson claims that "[j]ournalism represents a right to public interest news and information."6 Legal scholars and rights theorists have also entertained the idea of a citizen's right to information. Sam Lebovic, for example, refers to "the right to the news" as the right we need to protect if we are to solve the problem of how to adequately inform the public.7 More recently, Rowan Cruft has appealed to a human right "to education, specifically about current matters of public interest".8 Although his approach to this right is incidental (as he only invokes it in order to ground journalism as a human right in itself), Cruft makes clear that, for him, citizens have a right to be well informed. In fact, he claims that journalists' rights and duties "correlate with human rights to the provision of (good) journalism."9 Before Lebovic and Cruft appealed respectively to the right to the news and to the right to good journalism, free speech theorist Owen Fiss defended what he calls the "democratic theory of the First Amendment", which similarly appeals to "the public's right to know and to be informed".10 Legal scholar Stephen Sedley, for his part, has lamented that despite juridical rhetoric appeals to the public's interests, free speech and free press practice often focuses exclusively on protecting communicators' interests. Along similar lines, Sedley holds that whenever something is worth knowing, the interested audience may have a right to receive such information, even if they are unaware of that information's existence.11 One might argue, then, that just as patients have a right to be informed by their doctor, citizens have a right to be informed by journalists. Note that in both cases the right-holders are unaware of what information they have a right to be provided with. Legal scholar Mark Bovens also invoked citizens' right to be well informed when he argued that twenty-first-century citizens need new information rights. Among these, what he calls "tertiary information rights" would regulate horizontal relations between citizens and other private entities, which might be required to disclose information of crucial importance for citizens qua citizens. That information, which "should remain reasonably accessible to each and every citizen," may include things such as art collections, national events, sports, or cultural manifestations, but—importantly—also "news items".12 Democratic theory has also long held the idea that citizens should be properly informed.13 Of course, democratic theorists disagree on the quantity and quality of citizens' informational needs.14 However, they agree that for democracy to work properly, citizens need to be provided with quality information about certain relevant issues. Jürgen Habermas and Robert Dahl, two champions of democratic theory, might be taken as illustrative examples of this point. In Habermas's deliberative conception of democracy, decisions are only legitimate if they are the result of a rational discussion through which citizens transform their "mere opinions" into "reflected public opinions", or—as he calls them elsewhere—"considered public opinions".15 For citizens to acquire these public opinions, Habermas argues, professional journalists should offer them the news, reports, and commentaries they need as citizens.16 As he puts it, "audiences are not only consumers, that is, market participants, but also citizens who have a right to partake in culture, to follow political events, and to be involved in the formation of political opinions."17 These considerations lead Habermas both to criticize news media for wasting people's attention on irrelevant issues, and to defend interventionist media policies.18 In a similar vein, Dahl finds it unquestionable that, to be competent, citizens need political and social institutions that help them become so. For Dahl, "[o]pportunities to gain an enlightened understanding of public matters is not just part of the definition of democracy. They are a requirement for democracy".19 Indeed, according to Dahl, one of the fundamental principles of democracy is precisely "enlightened understanding", which states that "each member must have equal and effective opportunities for learning about the relevant alternative policies and their likely consequences".20 Enlightened understanding would be satisfied, in principle, by three basic institutions of democracy: freedom of expression, freedom of association, and the existence of alternative sources of information.21 Dahl, however, is aware that these institutions, created during the nineteenth and twentieth centuries, might no longer be an efficient way to promote enlightened understanding in the twenty-first century. "If this is so," he adds, "then democratic countries will need to create new institutions to supplement the old ones."22 Dahl here opens the door for deep structural reforms that would adapt our democracies to the specific challenges that our present century poses to relevant information-gathering processes. Remarkably, at the very beginning of the digital revolution, Dahl foresaw the need for new institutions to tackle what would eventually become known as "information disorder": the huge amount of available information, much of which is indifferent or even detrimental to enlightened understanding.23 Given the increased availability of information, he contends, democratic countries must "improve citizens' capacities to engage intelligently in political life," which would require enhancing old institutions with "new means for civic education, political participation, information, and deliberation."24 The assumption that, in a democracy, citizens need to be well informed, leads both Dahl and Habermas to struggle with Lebovic's question about how to guarantee that informative and accurate news flows to the public. Neither of them gives a clear answer to this question, but both are keen to accept institutional reforms, precisely on the basis of what might be called citizens' right to be well informed. Indeed, regardless of whether they come from the field of journalism or from the theories of law, rights, or democracy, all previous reflections point towards a right of citizens to be offered the information they need to become well informed. This right is not always explicitly invoked, and when it is invoked, it receives different names—the "right to good journalism", "right to the news", or simply "right to information". Behind this apparent diversity, however, there is a shared intuition: unless citizens are aided in their information-gathering processes, they will not be able to become well informed. And if that happens, the intuition goes, we cannot expect democracy to work well. As James Madison wrote, "[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both."25 Hence the belief that citizens must be offered the information they need to become well informed. It is not fully clear, though, what a democratic right to be well informed might mean or imply, for no sufficiently systematic analysis of this right has yet been carried out. However, previous appearances of this idea offer illuminating insights. For instance, by affirming that democracy cannot work well unless citizens are offered quality news, they point towards its grounds. When they suggest that the information that matters is not what one might want to know, but what one, as a citizen, needs to know, they offer a crucial hint about its content. Similarly, when authors like Cruft, Dahl, or Habermas identify plausible implications that might follow from this right, they offer clues about which duties might correlate to it. In the remainder of this article, I will draw from these insights, and I will lay out a systematic framework for both justifying and analyzing this right, which I will call citizens' right to information (CRI). My first step will be to locate CRI on the map of communication rights. To make sense of the right to be well informed, the first step is to understand its place in what Emerson calls the "whole system of freedom of expression": that is, the set of rights that regulate the exchange of information, opinions, and ideas.26 According to Emerson, this system includes two sides: the right to communicate and the right to know, each of which encompasses several further rights.27 Inspired by Emerson, but departing from his terminology, here I propose to classify communication rights into the following two categories, each defined by the role the right-holder plays in the communication process. The first category of communication rights consists of speech rights. These are rights whose right-holders are conceived as the emitters of information, opinions, and ideas—that is, those who send or transmit most of the content in the communication regulated by the right. Among these rights, we may include rights such as freedom of expression, freedom of the press, and the right to communicate. The second category of communication rights consists of rights of the public. These are rights whose right-holders are conceived as the addressees of content—that is, the audience or the public who receives the information, opinions, or ideas. It is this latter category to which CRI belongs, and on which I will therefore focus.28 To better illustrate the distinctiveness of CRI, let me first briefly present the two best-known rights of the public, which will serve as points of comparison. The first of these rights is freedom of information (FOI). Strictly speaking, FOI is not a freedom, but rather a claim-right to access and information held by public is to the of which has on institutional the The other best-known right of the public is the public's right to know This right is often conceived as a general and to information that is of interest to the It as Emerson puts it, the right to to to and to receive and the right to information as a basis for or facts to The that the public's right to know is of such a might the about what this right might and for instance, have different To I will distinguish only two but usually without the "the public's right to In its "the public's right to is for the category of rights of the public, and might be taken as to a or a very general right all the other more specific rights of the public. When in this "the public's right to is often to also specific rights of the public within it, such as FOI or, as we in Section CRI, which are conceived as specific of To possible from this in the following I will from using the in this I will of the to the set of rights whose right-holders are conceived as an I will of the public's right to know only in the sense of the In this the is the to and receive the information to and conception of the In this the is just one specific right of the public such as FOI and CRI. the in this a right, at least in to other rights of the public. This will become when I the question of content. I have previous appearances of the idea of a democratic right to be well informed. I have also the of the system of communication rights where it belongs, other rights of the public such as FOI and the However, this is still for what a democratic right to be well informed could In the following section, I will take the first towards such a the of the previous section, in the remainder of this article I will a systematic framework for both justifying and analyzing CRI. This framework and correlative In out these I will CRI to other communication rights, which will help not only to better it, but also to on its from these other the conceptual gap within communication rights. In this I will present two ways in which CRI might be In both cases I will first a general way to justify rights. I will this strategy to the of CRI. The first strategy for justifying a right is to show that there are important enough to to certain duties if would protect those important is in order rights do not only protect their interests. Indeed, sometimes the most important interest by a right is the interest of a or the interest of as a which would be by the of the this for instance, the right to would be not in any interest of but rather in interest in being or in the interest of a in its new being Similarly, journalists' right to their sources of information would not much on journalists' in their sources but rather on "the interest of all in the free of information which is of public or on the this to of the public at As these show, communication rights are not to the linking rights and interests. on this when he argued that freedom of three of interests. According to him, freedom of the of its as he calls the it also the of those to content is is, the of those who might be by the exchange of content—that is, these in CRI can be by appealing to at least two important interests, one of the and of The first is the interest that every has in well informed, in order to be able to own political In citizens need informative and news in order to understand what political is best for to of which I to this The second interest of CRI is the interest that every has in being well informed, that they do not or policies. Note that this line of CRI not in any interest of the right-holders but rather in one of each citizen's right is in the interest that each of citizens has in being well informed. This interest that we have other citizens from the that in democracy we the of despite their to our rights and are by a of citizens on our is Given our the every one of has a interest in each of our well informed, that they make and or policies. The second general way of justifying rights does not to interests, at least not it appeals to other rights. This as in showing that the of an right is unless right is This right is then as a at least a very for the of CRI could be these by at least two as follows. The first from the assumption that we have a right to in democracy, and then argues that a right to be provided with information about public issues is at least very democracy. It is to how democracy could function properly, or even how it could if citizens to access a supply of informative and news. largely and fake news, might to and policies that basic democratic What is more, citizens might be into who to democracy by the institutional unaware citizenry might not these it is and for that if we have a right to in a democracy, then we also need a democratic right to be well informed. The second CRI from political rights, such as the rights to and to The core of this is that political decisions cannot be therefore the of political rights cannot be citizens are a to inform themselves and on what is The of a in its the of an who As of information can a in the relevant its For this a of political rights requires that citizens can access an adequate supply of informative as CRI that their decisions their rather than or As and have a basic right to information in a information about what our we cannot our right to Of course, a right to be well informed does not well informed. It merely a to do so. But that makes a crucial for an has a very different on whether the could or could not have informed In CRI can be in at least four different on whether one appeals to its or interests, to the right to in a democracy, or to political rights. complete of these of their and their remains to be For focus on the main of CRI. As can be from its previous appearances in different the function of CRI is to promote the of a well-informed citizenry as a means to further a democracy. As a right of the public, its specific purpose is to guarantee that citizens are provided with the information that they need to become competent enough to out their democratic duties and make political This that CRI political rights or, more democratic rights. rights are those which are of a specific form of in that they make it Democratic rights are the of political rights that make democratic The right to freedom of and freedom of the press are usually Given the democratic function by CRI, we have good to include it within the category of democratic rights. To further the of this let me it with the by the other two best-known rights of the public. The function of FOI is to promote that is, to citizens to learn about the that they can understand it and it To be sure, is a for a well-informed if citizens could not learn about the then they could hardly be competent political decision-makers. However, CRI does not to create a it aims to promote knowledge about the issues that are worth for citizens qua citizens, regardless of whether those issues upon the of the This function that information about public institutions is but it is different from the function of Indeed, it me illustrate this with an the FOI citizens a right to access do

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