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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:  5 emphasizing speakers’ right of access to audiences for media regulation and policy. As this section will illustrate, such a shift would require that policymakers focus much greater attention on the dynamics of media content distribution and consumption. Such a shift would also potentially strengthen access policies against judicial scrutiny. The First Amendment Right of Access to Audiences The First Amendment right of freedom of speech traditionally has included a right to a certain level of access to audiences. According to Emerson, our “system of freedom of expression . . . demands access to an audience.” 3 The notion of a First Amendment right of access to audiences has developed primarily within the context of judicial decisions pertaining to access to public forums, such as streets and town squares. 4 The underlying premise of the public forum doctrine is that speakers should have access to those public locations where they have the opportunity to reach the widest possible audience. As Zatz notes, “One of the most basic functions of the public forum doctrine is to provide speakers mass access to the general public.” 5 In most public forum cases, the central issue typically involves whether speakers are being granted sufficient access to those locations where they have the greatest opportunity to reach audiences. We see a particularly clear articulation of a speaker’s First Amendment right of access to audiences in the Supreme Court’s decision in Kovacs v. Cooper. 6 In this case, the Court upheld a Trenton, New Jersey ordinance prohibiting the operation on streets of sound amplification equipment, against a claim that such a regulation infringed upon a speaker’s First Amendment rights. In describing the context of the Court’s analysis, Justice Reed (writing for the majority) wrote: “The right of free 3 Thomas I. Emerson, The Affirmative Side of the First Amendment, 14 G EORGIA L. R EV . 795, 808 (1981). 4 e.g. City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); see Noah.D. Zatz, Sidewalks in Cyberspace: Making Space for Public Forums in the Electronic Environment, 12 H ARVARD J OURNAL OF L AW & T ECHNOLOGY 149 (1998). 5 Zatz, supra note 4 at 201.

Authors: Napoli, Philip.
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5
emphasizing speakers’ right of access to audiences for media regulation and policy. As this section will
illustrate, such a shift would require that policymakers focus much greater attention on the dynamics of
media content distribution and consumption. Such a shift would also potentially strengthen access
policies against judicial scrutiny.
The First Amendment Right of Access to Audiences
The First Amendment right of freedom of speech traditionally has included a right to a certain
level of access to audiences. According to Emerson, our “system of freedom of expression . . . demands
access to an audience.”
3
The notion of a First Amendment right of access to audiences has developed
primarily within the context of judicial decisions pertaining to access to public forums, such as streets and
town squares.
4
The underlying premise of the public forum doctrine is that speakers should have access to
those public locations where they have the opportunity to reach the widest possible audience. As Zatz
notes, “One of the most basic functions of the public forum doctrine is to provide speakers mass access to
the general public.”
5
In most public forum cases, the central issue typically involves whether speakers are
being granted sufficient access to those locations where they have the greatest opportunity to reach
audiences.
We see a particularly clear articulation of a speaker’s First Amendment right of access to
audiences in the Supreme Court’s decision in Kovacs v. Cooper.
6
In this case, the Court upheld a
Trenton, New Jersey ordinance prohibiting the operation on streets of sound amplification equipment,
against a claim that such a regulation infringed upon a speaker’s First Amendment rights. In describing
the context of the Court’s analysis, Justice Reed (writing for the majority) wrote: “The right of free
3
Thomas I. Emerson, The Affirmative Side of the First Amendment, 14 G
EORGIA
L. R
EV
. 795, 808 (1981).
4
e.g. City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993); Hague v. Committee for Industrial
Organization, 307 U.S. 496 (1939); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972); see Noah.D. Zatz, Sidewalks in
Cyberspace: Making Space for Public Forums in the Electronic Environment,
12 H
ARVARD
J
OURNAL OF
L
AW
&
T
ECHNOLOGY
149 (1998).
5
Zatz, supra note 4 at 201.


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