Washington and Lee Law Review, Vol. 66, No. 3, 2008
Posted: 21 Sep 2009 Last revised: 23 Sep 2009
Date Written: September 23, 2008
The prevailing approach to First Amendment equal-access litigation, turning on the "general inclusivity" of government access, is deeply flawed. The standard has proved to be, in the end, unduly formalistic, hopelessly vague, and, perhaps most importantly, theoretically incompatible with the Supreme Court's emerging view that access is a form of government subsidy.
This paper calls on the courts to abandon their reliance on inclusiveness, and, in its place, tailor the definition of "access" to include only those government acts conducted "pursuant to official duties." The resulting doctrine would be one worthy of the federal courts - durable, coherent, and duly respectful of the traditional relations between public officials and the press.
Keywords: First Amendment, Press Access, Employee Speech
Suggested Citation: Suggested Citation
Milligan, Luke, Rethinking Press Rights of Equal Access (September 23, 2008). Washington and Lee Law Review, Vol. 66, No. 3, 2008; University of Louisville School of Law Legal Studies Research Paper Series No. 2009-07. Available at SSRN: https://ssrn.com/abstract=1272550