In his book The First: How to Think About Hate Speech, Campus Speech, Religious Speech, Fake News, Post-Truth, and Donald Trump, Stanley Fish neatly reverses the polarity of rights-based claims that the public enjoys, under the First Amendment’s free speech and press rights, a right to government information. Transparency and free speech ideals are indeed related, he concedes, because they share a political vision and conceptual grounding in the notion that robust conceptions of free speech carry a commitment to increase the flow of information. But this is not a good thing, Fish argues—rather, the relationship between the two merely compounds a fundamental error and creates bad consequences. This brief review essay applauds Fish’s critique of both understandings of the First Amendment and in the process offers friendly amendments regarding the distinction between public and private speech, the statutory rights to information available under the federal Freedom of Information Act and other laws, and how the Trump presidency confounded everyone’s understanding of what transparency might mean.
Mark Fenster, Transparency and the First, 14 FIU L. Rev. 713 (2021)