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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:  23 as widely accepted within the courts as the individualist approach. 53 Post has gone so far as to describe the Supreme Court as “largely hostile” 54 to collectivist First Amendment interpretations. The practical reality, then, is that policies that are justified on the basis of maximizing citizens’ rights of access to diverse sources and content often cannot withstand the scrutiny of an individualist First Amendment interpretation – one in which the rights of the speaker are paramount. From a purely pragmatic standpoint, those policies that do in fact improve citizens’ access to diverse sources need not be justified or defended primarily on the basis of their ability to serve the collectivist functions of the First Amendment. Rather, such policies can (and should) legitimately be interpreted as preserving and promoting the individual liberties that are at the core the more widely accepted individualist interpretation of the First Amendment, given the extent to which they promote a speaker’s First Amendment right of access to audiences. In this regard, then, such policies could be seen as doubly effective from a First Amendment standpoint, in that they directly serve both individualist and collectivist First Amendment values. In the end, adopting a rhetorical approach that looks beyond collectivist values that have become associated with the access to the media concept and more fully embraces individualistic values associated with the access to audiences concept ultimately could strengthen the defensibility of any speaker access policies from a First Amendment standpoint. Conclusion The differences between a First Amendment right of access to the media and a First Amendment right of access to audiences are significant ones. This paper represents only a starting point in exploring the full extent of these differences. This paper has illustrated how the First Amendment right of access to audiences is the more sensitive and analytically rigorous standard, and is in fact the standard more firmly grounded in traditional First Amendment values. For these reasons, to the extent that the concept of a First Amendment right of access to the media has been the predominant guiding First Amendment access 53 Ingber, supra note 43; Post, supra note 43. 54 Post, supra note 43 at 1109.

Authors: Napoli, Philip.
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23
as widely accepted within the courts as the individualist approach.
53
Post has gone so far as to describe
the Supreme Court as “largely hostile”
54
to collectivist First Amendment interpretations. The practical
reality, then, is that policies that are justified on the basis of maximizing citizens’ rights of access to
diverse sources and content often cannot withstand the scrutiny of an individualist First Amendment
interpretation – one in which the rights of the speaker are paramount. From a purely pragmatic
standpoint, those policies that do in fact improve citizens’ access to diverse sources need not be justified
or defended primarily on the basis of their ability to serve the collectivist functions of the First
Amendment. Rather, such policies can (and should) legitimately be interpreted as preserving and
promoting the individual liberties that are at the core the more widely accepted individualist interpretation
of the First Amendment, given the extent to which they promote a speaker’s First Amendment right of
access to audiences. In this regard, then, such policies could be seen as doubly effective from a First
Amendment standpoint, in that they directly serve both individualist and collectivist First Amendment
values. In the end, adopting a rhetorical approach that looks beyond collectivist values that have become
associated with the access to the media concept and more fully embraces individualistic values associated
with the access to audiences concept ultimately could strengthen the defensibility of any speaker access
policies from a First Amendment standpoint.
Conclusion
The differences between a First Amendment right of access to the media and a First Amendment
right of access to audiences are significant ones. This paper represents only a starting point in exploring
the full extent of these differences. This paper has illustrated how the First Amendment right of access to
audiences is the more sensitive and analytically rigorous standard, and is in fact the standard more firmly
grounded in traditional First Amendment values. For these reasons, to the extent that the concept of a
First Amendment right of access to the media has been the predominant guiding First Amendment access
53
Ingber, supra note 43; Post, supra note 43.
54
Post, supra note 43 at 1109.


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