Rethinking Press Rights of Equal Access

I. IntroductionThe relationship between public officials and the press is marked, to a large degree, by its transactional nature. While their exchanges are sometimes formal (as in the case of political advertisements),1 they are, more often than not, informal. Take, for example, the modern press conference: An official provides reporters with access to himself and his office, and, in exchange, the reporters provide the official with public exposure.2 The "informal" market for reporters and officials is, upon examination, not hard to discern.3For officials participating in this informal market, public exposure does not come cheap. Access, after all, begets vulnerability. Information captured through access is forever liberated from the official's control. It can be projected, fairly or not, to suggest official corruption, incompetency, or dishonesty. Not surprisingly, public officials regularly seek to mitigate the risk of access through "selectivity." Selectivity reduces risk in two ways. In a narrow sense, it confines information revealed through access to trusted members of the press, thereby enhancing the likelihood that access will reflect favorably on the government. In a wider sense, selectivity (which in effect subsidizes reporting) can be wielded to reward past loyalty and build future loyalty.Unfortunately, the prevailing judicial approach to First Amendment "selective access" (or, as it is inversely put, "equal access") litigation is deeply flawed. Most of the lower courts, as it stands, limit the analysis to whom was included in the grant of access. They hold that excluded reporters enjoy a presumptive right of access if, and only if, the grant of access was "generally inclusive" of the press. This Article argues that the current focus on "general inclusivity" is permissive, irrational, ambiguous, and, perhaps most importantly, theoretically incompatible with the Supreme Court's emerging views on government subsidization of speech. It would make far better sense, it seems, for courts to forego inquiries into whom was granted access, and, in its place, tailor the definition of "access" to only those grants made "pursuant to official duties." This doctrinal shift will, no doubt, result in sounder judicial analyses and more coherent, reliable outcomes. And because the phrase "pursuant to official duties" has been largely defined in the analogous context of employeespeech cases, the proposed standard will not require lower courts to undertake the long and sometimes awkward process of developing precedent.II. Access and InclusivityAlthough the text of the First Amendment does not reference a right of press access,4 the Supreme Court identified such a right in a series of cases in the 1970s.5 Since then, the Court has had little to say on the issue, leaving the lower courts, for better or worse, with just a few guiding principles. One such principle is that reporters enjoy no "special" right of access to government places or information that are (and have traditionally remained) closed to all members of the public and the press.6 A second principle is that, for places or information traditionally opened to the general public, the government may not base selective grants of press access on viewpoint.7These principles aside, many questions regarding the right of access remain unanswered by the Supreme Court. For instance, the Court has not ruled on, or otherwise suggested how courts should analyze, a reporter's claim of access to places or information that are closed to the public but opened to at least some members of the media.8 Left to their own designs, the lower courts have tended to coalesce their holdings around the following rule: The press enjoys First Amendment rights of access to all places or information that, notwithstanding their being closed to the general public, have been made generally available to the press.9Probably the leading decision in this regard is the D. …