Access Theory

1
Access Theory

• In 1644, English writer John Milton
  demonstrated his beliefs in marketplace theory,
  suggesting that ideas grapple in a field
  open to merchants of all shades of opinion, and
  that after due consideration thoughtful consumers
  buy the product that to them represents truth.
• This was also a concept that Supreme Court
  Justice Oliver Wendell Holmes, Jr. expressed
  over Jacob Abrams who was convicted for passing
  out antiwar leaflets.
• Guttenberg made national debate possible. Before
  the printing press was invented, there was not a
  means of mass communication. To quote A.J.
  Liebling, Freedom of the press is guaranteed
  only to those who own one!

2
Access Theory

• People who want to communicate openly to the
  public must now concern themselves with who owns
  the radio and television stations, printing
  press, broadcasting networks, cable systems,
  telephone companies, computer networks, and
  communication satellites.
• Although the U.S. Constitution constrains
  government from interfering with public
  communicators efforts to reach their intended
  audiences, the Constitution does considerably
  less to constrain private enterprise.
• Access to the marketplace of ideas is privately
  owned and operated- and getting access to the
  gates of these marketplaces cost a pretty penny.
  Communicators end up paying high prices to
  owners. Owners can also deny access of
  information to communicators.
• What should be done to require private
  information holders to start allowing all ideas
  into the marketplace?

3
Mandatory Access to Privately Owned Media

• During the last century, the U.S. Supreme Court
  affirmatively supported freedom of speech in many
  decisions, such as those that opened appropriate
  places for parades, marches and protests.
• In the 1960s, violence and civil disobedience
  was blamed on would-be communicators frustration
  when the mass media either ignored or denied them
  access to the marketplace.
• A Law professor named Jerome A. Barron often
  observed the efforts of antiestablishment
  communicators during the 60s. Barron proposes
  an interpretation of the First Amendment that
  keeps government and private groups from
  censoring ideas. This allows for free and
  wide-open debate on all issues.
• Thomas I. Emerson, another student of free
  speech summarizes four things that could possibly
  happen under a mandatory-access rule 1.)
  newspapers might be required to accept editorial
  advertising from those who wish to present
  controversial views to the public 2.) a personal
  attack rule, similar to the one the FCC applies
  to broadcasters, could be applied to newspapers
  3.) the letters-to-the-editor section of the
  paper could be expanded 4.) newspapers could be
  placed under a fairness requirement that would
  obligate them to provide in their overall
  coverage a balanced perspective on all newsworthy
  public issues.

4
The Courts Respond to Access Theory

• Supreme Court ruled in CBS v. Democratic National
  Committee (1973) that there is no constitutional
  right of access to station facilities for paid
  editorial advertising.
• CBS v. FCC (1981) the Court yielded somewhat on
  the issue to uphold the access provisions of the
  Federal Election Campaign Act of 1971.
• Amalgamated Clothing Workers of America attempt
  to purchase space in 1960 for editorial
  advertising in the four daily newspapers then
  publishing in Chicago. The ACWA was supporting
  the union that began picketing major clothing
  retailers like Marshall Field CO. saying that
  the store contributed to the unemployment of
  Americans by selling several imported goods. The
  federal district court rejected any argument that
  the First Amendment required such access to a
  newspaper, thereby upholding the newspapers
  right of discretion over the advertising it
  accepts.

5
Miami Herald Publishing Co. v. Tornillo, 418 U.S.
241(1974)

• Decided on June 25, 1974
• In the fall of 1972 Pat Tornillo, a candidate
  for election to the Florida House of
  Representatives was severely criticized in an
  editorial published by the Miami Herald. This
  allowed for and invoking of the states right to
  reply statute, a law passed in 1913 that required
  any newspaper attacking the character or official
  record of a candidate for public office to print
  free of charge the reply of that candidate.
  Tornillo insisted that the Miami Herald publish
  his response verbatim. When the newspaper
  refused, Tornillo entered the courts to compel
  compliance with the law. The circuit court in
  Dade County ruled the statute unconstitutional,
  but the Florida Supreme Court reversed the court
  below, ruling that the statute was
  constitutional. Chief Justice Burger gave four
  key reasons for ruling against access. Mandatory
  access to the press is a state action prohibited
  by the Constitution, he asserted because 1.) just
  as restraint upon a publication is a state action
  prohibited by the First Amendment, so is access,
  a command which is likewise prohibited 2.) the
  financial penalty exacted from a newspaper is not
  permissible 3.) the chilling effect upon the
  press is undesirable, for editors would become
  timid and avoid controversy rather than provoke
  demands for free access and 4.) the editorial
  control and judgment of the newspaper would be
  offended by such a requirement.

6
Conclusion

• Under the law, the airwaves belong to the
  people, and are only loaned to stations for a
  limited period of time under a license that is in
  effect for a maximum of eight years.
• In the field of broadcasting, Congress and the
  courts have addressed three key areas of free
  speech licensing, program balance and access to
  station facilities, and censorship of program
  content.
• The cable communication industry is regulated
  under the Cable Communications Policy Act of 1984
  as amended by Congress in subsequent years,
  especially in 1992 and 1996.