Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media

The purpose of this article is to examine critically these decisions and to explore whether there is any rational basis for limiting to one sector of the media the legislature’s power to impose access regulation. The article takes the position that the Court has pursued the right path for the wrong reasons. There is a powerful rationality underlying the current decision to restrict regulatory authority to broadcasting, but it is not, as is commonly supposed, that broadcasting is somehow different in principle from the print media and that it therefore is not deserving of equivalent first amendment treatment. As will be discussed in section I, the Court’s attempt to distinguish broadcasting on the basis of its dependence on scarce resources (the electromagnetic spectrum) is unpersuasive; moreover, whatever validity the distinction may once have had is now being undercut by the advance of new technology in the form of cable television. Further, other possible points of distinction that may be raised, such as the broadcasting industry’s high level of concentration and television’s purported special impact on its viewers, do not presently justify the different first amendment treatment. For reasons that will be developed in section II, access regulation has been treated differently in the context of broadcasting than it has in that of the print media largely because we have long assumed that in some undefined way broadcasting is, in fact, different. Rather than isolate broadcasting from our constitutional traditions, however, the Court should now acknowledge that for first amendment purposes broadcasting is not fundamentally different from the print media. Such an admission would not compel the Court either to permit access regulation throughout the press or to disallow it entirely. There is, we shall see, an alternative solution.