Instances of Discovery

Since August 2007 I have been a monthly columnist for the St. Cloud Times. My theme, taken from the mission statement of the Collegeville Institute for Ecumenical and Cultural Research, is “the renewal of human community.” The columns are republished here with permission of the St. Cloud Times.

Column #126. First published in the St. Cloud Times online Jan. 6, 2018; in print Jan. 7

Last Sunday’s “Here are the Times’ 2017 Difference Makers” (Dec. 31) includes a parenthesis I want to challenge.

They’re talking about Patty and Jerry Wetterling, who in 2016 had topped the editorial board’s list “for the class and grace they displayed during an unimaginable year.”

The Wetterlings make the 2017 list “because of their legal fight to keep private some parts of the investigative files that law enforcement compiled in its 29-year search for their abducted son, Jacob.”

Then the debatable point: “If successful, the Wetterlings will have changed (not necessarily for the better) the longstanding requirement under Minnesota state law that such files become public information after a criminal case is closed.”

“Not necessarily for the better.”

What lies behind this is the media’s perennial insistence on an unqualified adherence to the First Amendment — “Congress shall make no law … abridging the freedom … of the press.” Reporters and editors want access to everything.

I am a fan of the First Amendment, but not an absolutist about it.

There is no doubt that unfettered journalism is a bedrock of democracy. Attacks from high places on reputable sources of news and opinion, calling them “fake news,” have put our country in peril. Indeed, assaults on the press are, in my judgment, the most seditious acts of the current administration.

But some things should be off limits.

I have no knowledge of what might be in those records that the Wetterlings want to keep private. I do know what every novelist can tell you: all families have parts of their stories that are nobody else’s concern.

TV detective shows tell us that in abduction cases, family members are always the prime suspects. I can imagine that in those first frantic days after October 11, 1989, the Wetterling family were grilled relentlessly. If I had undergone such scrutiny, no way would I want the documentary record of those interrogations made public.

If it had turned out that Jacob had been done in by the Wetterlings, then of course the record would be of public interest — they would be an integral part of the criminal case. But they are, by state law, victims of the crime, not perpetrators of it.

What the record, compiled by others, says about them has nothing to do with the crime. It is not something I or the Times or anybody else, for that matter, has any legitimate interest in.

To repeat: I have no idea what it is the Wetterlings want kept private.

What I do know is this: it’s none of my business or yours, period.

Should the Wetterlings prevail in their lawsuit, it will be “for the better” — a demonstration that in an era when, thanks to social media, nearly everybody knows nearly everything about nearly everybody else, there are occasions when the book can be closed.

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The Wetterling case is a particular instance of a much larger issue.

Supreme Court Justice Louis Brandeis famously wrote, in a 1913 article called “What Publicity Can Do,” “Sunlight is said to be the best of disinfectants.” This is cited repeatedly in justification of what are called “sunshine laws,” which require that public bodies have open meetings.

This is generally a good thing. The laws are essential for the media’s “holding to account” function.

But here, too, First Amendment dogmatism can go too far.

Let’s say four of a seven-member school board are having coffee at Caribou, or are even at a party together. They have to let the Times know, in case the paper wants to send a reporter.

Or two of a three-member school board committee are having a conversation. Same requirement.

Sunshine laws are antidotes to skullduggery, which is always lurking.

But sunshine laws, when treated as absolutes, inhibit creativity.

If nearly every conversation between public officials is “on the record,” they will be reluctant to try out ideas, maybe even wild ones, because the idea will be recorded and held against them in perpetuity, even if it was just a “for instance” in order to get outside the box for a while.

People who are responsible for our public life need the right to try things out and take things back—to have something emerge from a conversation that no one came into it with.

Is it easy to distinguish between conversations that should be public and those that need not be? Of course it isn’t. This doesn’t mean, however, that the chance for public officials to really get to know one another through discussions in private should be automatically forestalled.

To repeat: The First Amendment is one of our greatest treasures. Like all treasures, though, if hoarded too closely it can entrap us.

Sunlight disinfects, yes. But as we were reminded in August, at the time of the eclipse, it also blinds.