Luke M. Milligan (University of Louisville School of Law) has posted Rethinking Press Rights of Equal Access (Washington and Lee Law Review, Vol. 65, No. 1103, 2008) on SSRN. Here is the abstract:
- 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, exceedingly permissive, hopelessly vague, and, perhaps most importantly, theoretically incompatible with the Supreme Court’s emerging view that access is a form of government subsidy. This essay 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.