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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:  19 denials of access to audiences were minimal. 49 This decision, then, not only suggests that consideration of a speaker’s right of access to audiences is appropriate in the realm of media policy, but also that some infringement on certain speakers’ abilities to access audiences is permissible from a First Amendment standpoint in order to improve other speakers’ (in this case, broadcasters) level of access to audiences. Implications for Media Policy It has been argued to this point that the concept of speaker access to audiences has been largely supplanted in media contexts with the concept of speaker access to the media. However, the concept of speaker access to the media lacks the sensitivity of the concept of speaker access to audiences. Consequently, a greater emphasis on speaker access to audiences is necessary and appropriate when considering the role of the First Amendment in media regulation and policy issues. This section explores what such a shift would mean for media regulation and policy. It is important to emphasize that this section does not provide a fully developed system for applying the right of access to audiences to media policy issues. Doing so is a complex task with as many potential pitfalls to be avoided as there are benefits to be extracted. However, this section does attempt to provide a starting point for deeper and more extensive explorations of the role of the First Amendment right of access to audiences in media regulation and policy. Those media cases in which the access to audiences issue has arisen (see above) provide a useful starting point. First, as the Warner Cable decision indicated, monopolies in the context of access to audiences raise significant First Amendment concerns. Given that, as was illustrated previously, access to audiences and access to the media are not synonymous, policymakers need to remain sensitive to the possibility of monopolies (or near monopolies) in access to audiences arising even in instances when there may not be monopolies, or near monopolies, in access to the media. From an access to audiences standpoint, policymakers must be more sensitive to the various mechanisms that can produce monopolies 49 Id at 214.

Authors: Napoli, Philip.
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19
denials of access to audiences were minimal.
49
This decision, then, not only suggests that
consideration of a speaker’s right of access to audiences is appropriate in the realm of media policy, but
also that some infringement on certain speakers’ abilities to access audiences is permissible from a First
Amendment standpoint in order to improve other speakers’ (in this case, broadcasters) level of access to
audiences.
Implications for Media Policy
It has been argued to this point that the concept of speaker access to audiences has been largely
supplanted in media contexts with the concept of speaker access to the media. However, the concept of
speaker access to the media lacks the sensitivity of the concept of speaker access to audiences.
Consequently, a greater emphasis on speaker access to audiences is necessary and appropriate when
considering the role of the First Amendment in media regulation and policy issues. This section explores
what such a shift would mean for media regulation and policy. It is important to emphasize that this
section does not provide a fully developed system for applying the right of access to audiences to media
policy issues. Doing so is a complex task with as many potential pitfalls to be avoided as there are
benefits to be extracted. However, this section does attempt to provide a starting point for deeper and
more extensive explorations of the role of the First Amendment right of access to audiences in media
regulation and policy.
Those media cases in which the access to audiences issue has arisen (see above) provide a useful
starting point. First, as the Warner Cable decision indicated, monopolies in the context of access to
audiences raise significant First Amendment concerns. Given that, as was illustrated previously, access to
audiences and access to the media are not synonymous, policymakers need to remain sensitive to the
possibility of monopolies (or near monopolies) in access to audiences arising even in instances when
there may not be monopolies, or near monopolies, in access to the media. From an access to audiences
standpoint, policymakers must be more sensitive to the various mechanisms that can produce monopolies
49
Id at 214.


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