Thursday, July 30, 2009
Ryan Benjamin Witte, Columbia University Law School; Boies, Schiller, & Flexner, LLP; and Florida State University College of Law, has published "It's My News Too! Online Journalism and Discriminatory Access to the Congressional Press Gallery." Here is the abstract.
Since March 2007, dozens of newspapers have gone out of business entirely, and still others, like the Seattle Post-Intelligencer, the Capital Times, and the Christian Science Monitor have moved to the internet to stay afloat. Since 1990, a quarter of all American newspaper jobs have disappeared. Despite its three hundred year existence, the American newspaper is being devastated in the span of a decade. Meanwhile, the internet is becoming the go-to source for news, information, weather, movie reviews, and classified advertisements. Congress and the courts can no longer afford to relegate internet journalism to a second-class news medium. In Consumers Union v. Periodical Correspondence Association, the question arose as to the constitutionality of certain rules governing the issuance of press credentials to the congressional press galleries. In that case, based on separation of powers concerns, the court avoided the issue with the political question doctrine. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility. Given the switch from traditional print media to websites and Kindles, the question of who has access to the news becomes extremely important. This article will address several issues relating to the freedom of access to the Periodical Press Gallery. The first part of the article will briefly describe the history of the press and the history of congressional reporting leading up to the passage of the Periodical Press Gallery Rules. Part two of the article will describe the rules that govern admission to the Periodical Press Gallery as they exist today. Part three will describe the nature of the right afforded to journalists to access government buildings which have already been opened up to the press. Cases within this section challenge the denial of access to the White House, the Periodical Press Galley, and the Guantanamo Bay detention facility. Discussion in this section will reveal how the D.C. Circuit Court has used the political question doctrine to avoid deciding these press gallery cases on their merits, while taking a deferential approach to denials from other established press pools. Because I believe that Consumers Union was wrongly decided, the final section will address how the courts should decide cases which stem from a denial of admission to the galleries. If the courts still refuse to decide these cases on nonjusticiability grounds, I will argue why Congress should unilaterally refine its rules to cabin the discretion of the Executive Committee and permit more online journalists to enter the Periodical Press Gallery. This section will describe how the current Press Gallery Rules act as an unconstitutional obstacle to the First Amendment rights of online journalists, as well as a Fifth Amendment violation of Due Process. Lastly, I will detail a few substantive amendments to the existing Rules which would provide for a fairer review of an online-journalist’s application.
Download the paper from SSRN here.