Len Niehoff is Professor from Practice at the University of Michigan Law School, where he teaches courses in civil procedure, ethics, evidence, First Amendment, law & theology, and media law. He writes regularly in all of these fields. He is also Of Counsel to the Honigman law firm. The opinions expressed here are his own.

Thursday, December 2, 2010

Dilemmas of Transparency

This has gone unnoticed, but two important stories that have emerged in the last few days raise related issues.

The first story concerns the exploits of Julian Assange and WikiLeaks in releasing confidential State Deparment communications Some of the material is interesting; some seems gossipy and petty; much of it appears unlikely to do any harm. But Assange's reckless release of so much sensitive information obviously raises legitimate concerns about putting innocent people at risk and further destabilizing already unstable situations.

Common sense tells us that some parts of our government cannot be fully transparent if they are to work properly.

The second story concerns the failure of the State of California to bring its prisons up to constitutional standards, despite two decades of operating under court orders directing it to do so. At a recent hearing on the issue, photographs of California prison conditions left United States Supreme Court Justice Stephen Breyer shaking his head in shock and dismay. Of course, our prisons got into these horrible straits in the first place because they were largely operated outside of public scrutiny--a situation that the states and federal government perpetuate by placing absurd restrictions on media access to those behind bars.

Common sense also tells us that some parts of our government must be highly transparent if they are to work properly--indeed, if they are to pass even the most basic expectations of human decency.

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