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110 Va. L. Rev. 1 (2024)

handle is hein.journals/valr110 and id is 1 raw text is: COPYRIGHT © 2024 VIRGINIA LAW REVIEW ASSOCIATION VIRGINIA LAW REVIEW VOLUME 110 MARCH 2024 NUMBER 1 ARTICLES FIRST AMENDMENT DISEQUILIBRIUM Christina Koningisor* & Lyrissa Lidsky* * The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces an emboldened press and a constrained executive maintain a rough balance between the press's desire to uncover secrets and the executive's desire to keep information hidden. LandmarkFirstAmendment cases such as the Pentagon Papers decision embody this view. Professor Cass Sunstein has described these cases as establishing a First Amendment equilibrium, one that arises out of the structural competition between the press and the executive. Today, judges and legislators continue to treat the press and the government as equal combatants in these disputes. Yet whatever equilibrium might once have existed between the press and executive branch has been destabilized. The institutional press has * Associate Professor, U.C. Law, San Francisco. ** Raymond & Miriam Ehrlich Chair in U.S. Constitutional Law at the University of Florida Law School. Many thanks to Jonathan Abel, Nicholas Almendares, J. Israel Balderas, Brian Bix, Erin Carroll, James Ming Chen, David Cohen, Mark Goldberg, Peter Huang, RonNell Andersen Jones, Margot Kaminski, Guha Krishnamurthi, Toni Massaro, Helen Norton, Robert Post, Blake Reid, Amy Sanders, Jacob Schriner-Briggs, Maxwell Stearns, Marley Weiss, Sonja West, and the participants in the 2023 Media Law and Policy Scholars' Conference and the 2023 Freedom of Expression Scholars' Conference. 1