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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:  16 audience attention remains focused on a narrow range of content providers. 40 One the other hand, new communications technologies such as the Internet raise the possibility of individual speakers having access to global audiences. In such an environment, the issue of speaker access to audiences seems increasingly central to determining whether existing policies are effectively serving the underlying principles of the First Amendment. In an environment in which the definition of a media content provider has essentially expanded from a complex organization to also encompassing an individual in his basement, and in which the technological characteristics of the media increasingly facilitate access to audiences across local, national, and international boundaries, 41 the question of who does and who does not have access to the media seems increasingly insufficient for analyzing the extent to which the values inherent in the First Amendment are being pursued and protected to their fullest extent. Instead, a more rigorous standard is required In terms of the appropriateness of better incorporating the concept of a speaker’s right of access to audiences into media regulation and policy, the most likely objection is that an access right that has developed primarily within the public forum context is not appropriate in mediated communication contexts. This argument could be supported by the fact that there is a long history of the courts refusing to apply the public forum concept to the media. 42 In regards to this point, it is important to recognize that the right of access to audiences is not a right that is exclusively linked with the public forum doctrine and that we need not conceptualize a medium as a public forum for the right of access to audiences to be a relevant consideration. The notion of the protection of individual liberties upon which the concept of the right of access to audiences rests (see above) is perhaps the most widely accepted function of the First 40 See James G. Webster and Shu-Fang Lin, The Internet Audience: Web Use as Mass Behavior, 46 J. OF B ROADCASTING & E LECTRONIC M EDIA 1 (2002). 41 See Philip M. Napoli, The Localism Principle Under Stress, 2 I NFO 573. 42 For a discussion of this issue, and for examples of growing advocacy that the courts apply the public forum framework to electronic media, see David.E. Steinglass, Extending Pruneyard: Citizens’ Right to Demand Public Access Cable Channels, 71 N EW Y ORK U NIVERSITY L. R EV . 1113 (1996) and Zatz, supra note 4.

Authors: Napoli, Philip.
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16
audience attention remains focused on a narrow range of content providers.
40
One the other hand, new
communications technologies such as the Internet raise the possibility of individual speakers having
access to global audiences. In such an environment, the issue of speaker access to audiences seems
increasingly central to determining whether existing policies are effectively serving the underlying
principles of the First Amendment. In an environment in which the definition of a media content provider
has essentially expanded from a complex organization to also encompassing an individual in his
basement, and in which the technological characteristics of the media increasingly facilitate access to
audiences across local, national, and international boundaries,
41
the question of who does and who does
not have access to the media seems increasingly insufficient for analyzing the extent to which the values
inherent in the First Amendment are being pursued and protected to their fullest extent. Instead, a more
rigorous standard is required
In terms of the appropriateness of better incorporating the concept of a speaker’s right of access
to audiences into media regulation and policy, the most likely objection is that an access right that has
developed primarily within the public forum context is not appropriate in mediated communication
contexts. This argument could be supported by the fact that there is a long history of the courts refusing
to apply the public forum concept to the media.
42
In regards to this point, it is important to recognize that
the right of access to audiences is not a right that is exclusively linked with the public forum doctrine and
that we need not conceptualize a medium as a public forum for the right of access to audiences to be a
relevant consideration. The notion of the protection of individual liberties upon which the concept of the
right of access to audiences rests (see above) is perhaps the most widely accepted function of the First
40
See James G. Webster and Shu-Fang Lin, The Internet Audience: Web Use as Mass Behavior, 46 J.
OF
B
ROADCASTING
& E
LECTRONIC
M
EDIA
1 (2002).
41
See Philip M. Napoli, The Localism Principle Under Stress, 2 I
NFO
573.
42
For a discussion of this issue, and for examples of growing advocacy that the courts apply the public forum
framework to electronic media, see David.E. Steinglass, Extending Pruneyard: Citizens’ Right to Demand Public
Access Cable Channels,
71 N
EW
Y
ORK
U
NIVERSITY
L. R
EV
. 1113 (1996) and Zatz, supra note 4.


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