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Access to the Media Versus Access to Audiences: The Distinction and its Implications for Media Regulation and Policy
Unformatted Document Text:  10 broadcasting station.” 21 As the Court noted, the FCC’s reasonable access provision created a new “right of reasonable access to the use of stations,” 22 a right which the Court concluded did not intrude significantly upon broadcaster’s First Amendment rights. However, in Miami Herald v. Tornillo, 23 the Court rejected a similar access right in the context of newspapers as an infringement upon newspaper publishers’ First Amendment rights. These different outcomes help illustrate how the different technological characteristics of the individual media have factored into the extent to which speakers have a right of access to them. In each of these cases, the focal point of the access advocates’ arguments, and of the Court’s analysis, is the speaker’s right of access to the particular medium. This is particularly well illustrated by the repeated use of the terminology “access to the press” in the Miami Herald decision and the repeated use of the terminology “access to broadcast stations” in the CBS decision. Nowhere in these decisions do we find any explicit identification of a speaker’s First Amendment right of access to audiences of the sort that we find in many access decisions in non-mediated contexts (see above). Certainly, implicit in this notion of a right of access to the media is the assumption that such access simultaneously grants sufficient access to audiences. Consider, for instance, that although Barron never explicitly argues for a speaker’s First Amendment right of access to audiences, the concept of access to audiences is implicit in much of his argument. When he argues that “An analysis of the first amendment must be tailored to the context in which ideas are or seek to be aired,” he emphasizes the need for assessing the relative “impact” of different media. 24 Similarly, he emphasizes the importance of considering which media are most “important,” “dominant,” and “significant.” 25 All of these ambiguous terms are given a bit more clarity when Baron argues that “If ideas are criticized in one forum the most 21 Id. at 377. 22 Id. at 381. 23 418 U.S. 241 (1974). 24 Supra note 15 at 1653.

Authors: Napoli, Philip.
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10
broadcasting station.”
21
As the Court noted, the FCC’s reasonable access provision created a new
“right of reasonable access to the use of stations,”
22
a right which the Court concluded did not intrude
significantly upon broadcaster’s First Amendment rights. However, in Miami Herald v. Tornillo,
23
the
Court rejected a similar access right in the context of newspapers as an infringement upon newspaper
publishers’ First Amendment rights. These different outcomes help illustrate how the different
technological characteristics of the individual media have factored into the extent to which speakers have
a right of access to them.
In each of these cases, the focal point of the access advocates’ arguments, and of the Court’s
analysis, is the speaker’s right of access to the particular medium. This is particularly well illustrated by
the repeated use of the terminology “access to the press” in the Miami Herald decision and the repeated
use of the terminology “access to broadcast stations” in the CBS decision. Nowhere in these decisions do
we find any explicit identification of a speaker’s First Amendment right of access to audiences of the sort
that we find in many access decisions in non-mediated contexts (see above).
Certainly, implicit in this notion of a right of access to the media is the assumption that such
access simultaneously grants sufficient access to audiences. Consider, for instance, that although Barron
never explicitly argues for a speaker’s First Amendment right of access to audiences, the concept of
access to audiences is implicit in much of his argument. When he argues that “An analysis of the first
amendment must be tailored to the context in which ideas are or seek to be aired,” he emphasizes the need
for assessing the relative “impact” of different media.
24
Similarly, he emphasizes the importance of
considering which media are most “important,” “dominant,” and “significant.”
25
All of these ambiguous
terms are given a bit more clarity when Baron argues that “If ideas are criticized in one forum the most
21
Id. at 377.
22
Id. at 381.
23
418 U.S. 241 (1974).
24
Supra note 15 at 1653.


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