The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.
The article begins with a review of the historical treatment by newspapers of gay-related topics, including the most prevalent excuse offered for not publishing same-sex union announcements, that such relationships are without legal significance. The importance of gaining access to these newspaper pages is then examined. Because relationships receiving public recognition are empirically more stable, published announcements unions serve the vital function of contributing to the relationships' longevity. The threshold criterion to a successful legal challenge to a newspaper's exclusionary practices will be the existence of an applicable public accommodations law of appropriate coverage. Additional criteria will depend upon whether or not, in the newspaper's particular practices, union announcements are "news."
Announcements will not be "news" receiving First Amendment Free Press protections where the newspaper does not exercise adequate editorial judgment in their selection and composition, allowing the announcements section of the newspaper to be regulated by established precedent. Even where announcements pass this test, and rise to the level of protected "news," newspapers may still be compelled to publish same-sex union announcements by application of the public forum doctrine, which in turn can encompass newspapers categorized as "quasi-public" entities.
Donovan, James M., "Same-Sex Union Announcements: Whether Newspapers Must Publish Them, and Why We Should Care" (2003). Law Faculty Scholarly Articles. 461.