Rethinking Press Rights of Equal Access
Luke M. Milligan
University of Louisville - Louis D. Brandeis School of Law
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
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
Date posted: September 21, 2009 ; Last revised: September 23, 2009