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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:  7 It is important to emphasize that the notion of a speaker’s First Amendment right of access to an audience has not been confined exclusively to the public forum realm (though this is where the concept certainly is most prominent). For instance, the right to door-to-door solicitation has been upheld in part on the basis of a First Amendment right of access to audiences, and the doorway of a private residence has never been classified as a public forum. In Martin v. City of Struthers, 10 the Supreme Court overturned the conviction of a Jehova’s Witness for violating a city statute forbidding door-to-door distribution of literature. The Court noted that the right to approach homes and offer discussion or literature was “in accordance with the best tradition of free discussion.” 11 This right to approach and offer information, 12 then, is premised in large part upon speakers having a right of access to an audience. In upholding a speaker’s right to knock on a stranger’s front door in order to present ideas (ideas that the resident may even be hostile to), the Court upheld a fairly powerful First Amendment right of access to an audience. In the examples discussed above, the Court’s analyses revolved around the role of the First Amendment in protecting individual liberty (i.e., the freedom to convey one’s ideas to others), not around alternative First Amendment values such as the value to the citizenry of being exposed to – or having the opportunity to be exposed to – the information that these speakers were providing. In this regard, these access to audience decisions fall squarely in the traditional “individualist” interpretation of First Amendment rights, 13 where the liberty and autonomy of the individual speaker are paramount (even to the extent that the speaker has the right to annoy people by knocking on their doors while they are at home). This perspective is well-illustrated by Justice Reed’s statement in Kovacs v. Cooper, that free speech 10 319 U.S. 141 (1943). 11 Id at 144-145. 12 See Darrin A. Hostetler, Face-to-Face with the First Amendment: Schenck v. Pro-Choice Network and the Right to “Approach and Offer” in Abortion Clinic Protests, 50 S TAN . L. R EV . 179 (1997). 13 See, for example, C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. R EV . 964; R.H. Fallon, Jr., Two Senses of Autonomy, 46 S TANFORD L. R EV . 875.

Authors: Napoli, Philip.
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7
It is important to emphasize that the notion of a speaker’s First Amendment right of access to an
audience has not been confined exclusively to the public forum realm (though this is where the concept
certainly is most prominent). For instance, the right to door-to-door solicitation has been upheld in part
on the basis of a First Amendment right of access to audiences, and the doorway of a private residence
has never been classified as a public forum. In Martin v. City of Struthers,
10
the Supreme Court
overturned the conviction of a Jehova’s Witness for violating a city statute forbidding door-to-door
distribution of literature. The Court noted that the right to approach homes and offer discussion or
literature was “in accordance with the best tradition of free discussion.”
11
This right to approach and offer
information,
12
then, is premised in large part upon speakers having a right of access to an audience. In
upholding a speaker’s right to knock on a stranger’s front door in order to present ideas (ideas that the
resident may even be hostile to), the Court upheld a fairly powerful First Amendment right of access to an
audience.
In the examples discussed above, the Court’s analyses revolved around the role of the First
Amendment in protecting individual liberty (i.e., the freedom to convey one’s ideas to others), not around
alternative First Amendment values such as the value to the citizenry of being exposed to – or having the
opportunity to be exposed to – the information that these speakers were providing. In this regard, these
access to audience decisions fall squarely in the traditional “individualist” interpretation of First
Amendment rights,
13
where the liberty and autonomy of the individual speaker are paramount (even to the
extent that the speaker has the right to annoy people by knocking on their doors while they are at home).
This perspective is well-illustrated by Justice Reed’s statement in Kovacs v. Cooper, that free speech
10
319 U.S. 141 (1943).
11
Id at 144-145.
12
See Darrin A. Hostetler, Face-to-Face with the First Amendment: Schenck v. Pro-Choice Network and the Right
to “Approach and Offer” in Abortion Clinic Protests, 50 S
TAN
. L. R
EV
. 179 (1997).
13
See, for example, C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. R
EV
. 964;
R.H. Fallon, Jr., Two Senses of Autonomy, 46 S
TANFORD
L. R
EV
. 875.


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