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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:  6 speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there must be opportunity to win their attention. This is the phase of freedom of speech that is involved here.” 7 This passage carves out the right of access to an audience (expressed in terms of the opportunity to reach the minds of listeners) as a distinct component – or, to use Justice Reed’s words – “phase” of First Amendment rights. As Justice Reed’s statement indicates, free speech not only is a function of the extent to which citizens can say what they want, but also a function of the extent to which their speech has the potential to reach an audience. We see an even more direct application of the access to audiences concept in the Supreme Court’s decision in International Society for Krishna Consciousness and Brian Rumbaugh v. Walter Lee. 8 In this decision, the Court denied the International Society for Krishna Consciousness the right to perform rituals (as part of their fund raising process) within Port Authority of New York and New Jersey airports. The Court concluded that the Society had sufficient access to audiences if they were to conduct their activities on the sidewalks outside the airports (which was permissible under Port Authority rules). In reaching this conclusion, the Court noted that “This sidewalk area is frequented by an overwhelming percentage of airport users . . . no more than 3% of air travelers passing through the terminals are doing so on interterminal flights . . .. Thus the resulting access of those who would solicit the general public is quite complete.” 9 Here, then, the extent of access to an audience facilitated by alternative means is used to determine whether a First Amendment violation has taken place. Because of the fact that, under the alternative access plan, speakers would be denied access to, at most, three percent of the audience they were seeking to reach, the Court concluded that there was no First Amendment violation of a magnitude to overcome the compelling government interests in the safe and efficient operation of airports. 6 336 U.S. 77 (1948). 7 Id at 87. 8 505 U.S. 672 (1992). 9 Id. at 554 (citations omitted).

Authors: Napoli, Philip.
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6
speech is guaranteed every citizen that he may reach the minds of willing listeners and to do so there
must be opportunity to win their attention. This is the phase of freedom of speech that is involved here.”
7
This passage carves out the right of access to an audience (expressed in terms of the opportunity to reach
the minds of listeners) as a distinct component – or, to use Justice Reed’s words – “phase” of First
Amendment rights. As Justice Reed’s statement indicates, free speech not only is a function of the extent
to which citizens can say what they want, but also a function of the extent to which their speech has the
potential to reach an audience.
We see an even more direct application of the access to audiences concept in the Supreme Court’s
decision in International Society for Krishna Consciousness and Brian Rumbaugh v. Walter Lee.
8
In this
decision, the Court denied the International Society for Krishna Consciousness the right to perform rituals
(as part of their fund raising process) within Port Authority of New York and New Jersey airports. The
Court concluded that the Society had sufficient access to audiences if they were to conduct their activities
on the sidewalks outside the airports (which was permissible under Port Authority rules). In reaching this
conclusion, the Court noted that “This sidewalk area is frequented by an overwhelming percentage of
airport users . . . no more than 3% of air travelers passing through the terminals are doing so on
interterminal flights . . .. Thus the resulting access of those who would solicit the general public is quite
complete.”
9
Here, then, the extent of access to an audience facilitated by alternative means is used to
determine whether a First Amendment violation has taken place. Because of the fact that, under the
alternative access plan, speakers would be denied access to, at most, three percent of the audience they
were seeking to reach, the Court concluded that there was no First Amendment violation of a magnitude
to overcome the compelling government interests in the safe and efficient operation of airports.
6
336 U.S. 77 (1948).
7
Id at 87.
8
505 U.S. 672 (1992).
9
Id. at 554 (citations omitted).


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