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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:  17 Amendment. 43 In this regard, the right of access to audiences draws upon the very core function of the First Amendment, and for this reason should not be considered in any way a peripheral First Amendment right with relevance only in selected contexts. It is therefore quite appropriate that a right of access to audiences has been articulated in other non-mediated communications contexts outside of the public forum realm, such as door-to-door solicitation (see above). Moreover, there also are a few instances in which the right of access to audiences has found its way into judicial analyses of media policies. These occurrences support the point that the right of access to audiences is not a right that is exclusive to the public forum realm, or to the realm of non-mediated communication, and does in fact have applicability and relevance to the media realm. One of the more extensive discussions of the relationship between the First Amendment and access to audiences within a media context can be found in the Court of Appeals for the Eleventh Circuit’s decision in Warner Cable Communications v. City of Niceville. 44 In this decision, the court rejected Warner Cable’s claim that the city of Niceville’s plan to establish a government owned and operated cable system to compete with Warner Cable’s incumbent system was a violation of Warner Cable’s First Amendment rights. According to the court: We agree that the government may not speak so loudly as to make it impossible for other speakers to be heard by their audience. The government would then be preventing the speakers’ access to that audience, and first amendment concerns would arise. For instance, if a city government builds a better soapbox, equipped with spotlights and powerful loudspeakers, next to the longstanding antique soapbox in the city square, and if government speakers dominate the new soapbox, then speakers on the first soapbox do 43 S. Ingber, Rediscovering the Communal Worth of Individual Rights: the First Amendment in Institutional Contexts, 69 T EXAS L. R EV . 1; Robert Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse, 63 U NIV . OF C OLORADO L. R EV . 1109. 44 911 F.2d 634 (1990).

Authors: Napoli, Philip.
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background image
17
Amendment.
43
In this regard, the right of access to audiences draws upon the very core function of the
First Amendment, and for this reason should not be considered in any way a peripheral First Amendment
right with relevance only in selected contexts.
It is therefore quite appropriate that a right of access to audiences has been articulated in other
non-mediated communications contexts outside of the public forum realm, such as door-to-door
solicitation (see above). Moreover, there also are a few instances in which the right of access to
audiences has found its way into judicial analyses of media policies. These occurrences support the point
that the right of access to audiences is not a right that is exclusive to the public forum realm, or to the
realm of non-mediated communication, and does in fact have applicability and relevance to the media
realm.
One of the more extensive discussions of the relationship between the First Amendment and
access to audiences within a media context can be found in the Court of Appeals for the Eleventh
Circuit’s decision in Warner Cable Communications v. City of Niceville.
44
In this decision, the court
rejected Warner Cable’s claim that the city of Niceville’s plan to establish a government owned and
operated cable system to compete with Warner Cable’s incumbent system was a violation of Warner
Cable’s First Amendment rights. According to the court:
We agree that the government may not speak so loudly as to make it impossible for other
speakers to be heard by their audience. The government would then be preventing the
speakers’ access to that audience, and first amendment concerns would arise. For
instance, if a city government builds a better soapbox, equipped with spotlights and
powerful loudspeakers, next to the longstanding antique soapbox in the city square, and if
government speakers dominate the new soapbox, then speakers on the first soapbox do
43
S. Ingber, Rediscovering the Communal Worth of Individual Rights: the First Amendment in Institutional
Contexts, 69 T
EXAS
L. R
EV
. 1; Robert Post, Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public
Discourse, 63 U
NIV
.
OF
C
OLORADO
L. R
EV
. 1109.
44
911 F.2d 634 (1990).


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