Despite its three hundred year existence, the American newspaper is being devastated as the Internet becomes the go-to source for news. Despite the rise in Internet journalism, the sharp increase in online readership, and the precipitous drop in the number of print newspapers, policymakers still have a dismissive attitude toward alternative news sources. Such attitudes must change. In particular, the government should give online-only journalists increased access to the Galleries of the House of Representatives, the Senate, and other state-owned facilities where mainstream journalists are permitted. With a world-wide audience of millions of readers, Congress and the courts can no longer afford to relegate Internet journalism to a second-class news medium.
In Consumers Union v. Periodical Correspondents’ Association, the plaintiff, the non-profit organization that publishes Consumer Reports, questioned the constitutionality of certain rules governing the issuance of press credentials to the Galleries when it was denied admission on ground that it was not an independent publication. Based on separation-of-powers concerns, the United States Court of Appeals for the District of Columbia Circuit avoided the constitutional issue with the political question doctrine, deeming the matter nonjusticiable. Since then, many courts have taken a similar path when faced with the exclusion of a journalist from an established press facility, completely skirting the constitutional issue of whether denial of access violates the freedom of the press protected by the First Amendment. Given the switch from traditional print media to websites and Kindles, the question of who has access to the places where the news is made becomes extremely important. If and when a court will be forced to decide the constitutional issue, it will need a set of principles that balance the constitutional concerns of Congress with the constitutional rights of the online journalist.
This Article will attempt to set forth those principals while at the same time explaining the history, the nature of the rights, and the state of the law as it exists today.