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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:  18 not truly have the opportunity to communicate their views even to those who might wish to hear them. The city would then be ‘drowning out’ the voice of the private speakers. But if the soapboxes are equal and the city speakers simply attract more listeners because the listeners prefer the city’s message, there is no ‘drowning out,’ no denial of access, and no first amendment violation. . . . the speaker on the first soapbox cannot demand to monopolize the information-seeking audience in the name of the first amendment. 45 This passage makes the important point that communications technologies can be used to “monopolize the information-seeking audience” 46 in such a way that other speakers’ First Amendment rights of access to audiences may be affected. According to this passage, there needs to be some effort towards fairness and equity in the distribution of access to audiences. The issue of a First Amendment right of access to audiences arose more recently in the Supreme Court’s upholding of the cable must-carry rules. 47 In assessing the constitutionality of the must-carry rules, the Court assessed the extent to which the rules denied individual cable networks access to audiences. One of the plaintiff’s primary arguments was that the must carry rules make it more difficult for cable programmers to achieve carriage on cable systems – essentially, making it more difficult for them to gain access to television audiences. As Justice Breyer noted in his concurring statement, the must-carry rules prevent “displaced cable program providers from obtaining an audience,” which amounts to “a suppression of speech.” 48 However, citing evidence that 99.8 percent of all cable programming carried before the enactment of the must-carry rules was carried after the enactment of the rules, the Court concluded that the must-carry rules did not violate the First Amendment, in part due to the fact that 45 Id. at 638. 46 Id. 47 Turner Broadcasting v. Federal Communications Commission, 520 U.S. 180 (1997). 48 Id at 226.

Authors: Napoli, Philip.
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18
not truly have the opportunity to communicate their views even to those who might wish
to hear them. The city would then be ‘drowning out’ the voice of the private speakers.
But if the soapboxes are equal and the city speakers simply attract more listeners because
the listeners prefer the city’s message, there is no ‘drowning out,’ no denial of access,
and no first amendment violation. . . . the speaker on the first soapbox cannot demand to
monopolize the information-seeking audience in the name of the first amendment.
45
This passage makes the important point that communications technologies can be used to “monopolize
the information-seeking audience”
46
in such a way that other speakers’ First Amendment rights of access
to audiences may be affected. According to this passage, there needs to be some effort towards fairness
and equity in the distribution of access to audiences.
The issue of a First Amendment right of access to audiences arose more recently in the Supreme
Court’s upholding of the cable must-carry rules.
47
In assessing the constitutionality of the must-carry
rules, the Court assessed the extent to which the rules denied individual cable networks access to
audiences. One of the plaintiff’s primary arguments was that the must carry rules make it more difficult
for cable programmers to achieve carriage on cable systems – essentially, making it more difficult for
them to gain access to television audiences. As Justice Breyer noted in his concurring statement, the
must-carry rules prevent “displaced cable program providers from obtaining an audience,” which amounts
to “a suppression of speech.”
48
However, citing evidence that 99.8 percent of all cable programming
carried before the enactment of the must-carry rules was carried after the enactment of the rules, the Court
concluded that the must-carry rules did not violate the First Amendment, in part due to the fact that
45
Id. at 638.
46
Id.
47
Turner Broadcasting v. Federal Communications Commission, 520 U.S. 180 (1997).
48
Id at 226.


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