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The Role of the Access Doctrine in the Regulation of the Mass Media: a Critical Review and Assessment David L

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The Role of the Access Doctrine in the Regulation of the Mass Media: a Critical Review and Assessment David L NORTH CAROLINA LAW REVIEW Volume 52 | Number 1 Article 3 11-1-1973 The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment David L. Lange Follow this and additional works at: http://scholarship.law.unc.edu/nclr Part of the Law Commons Recommended Citation David L. Lange, The Role of the Access Doctrine in the Regulation of the Mass Media: A Critical Review and Assessment, 52 N.C. L. Rev. 1 (1973). Available at: http://scholarship.law.unc.edu/nclr/vol52/iss1/3 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Law Review by an authorized administrator of Carolina Law Scholarship Repository. For more information, please contact [email protected]. THE ROLE OF THE ACCESS DOCTRINE IN THE REGULATION OF THE MASS MEDIA: A CRITICAL REVIEW AND ASSESSMENT DAVID L. LANGEt I. INTRODUCTION Among the issues which confront the American mass media, surely few are more important than the issues posed by the question of access: who finally shall decide which voices will be heard, which questions raised, and which events and matters covered in the nation's press? In broadest terms, the access question is nothing less than an in- quiry into the proper structure and purpose of the American press. More recently, however, the question has arisen in the narrower context of immediate confrontations between the owners of the media and their gatekeepers,' on the one hand, and individual members of the public on the other. Thus, a group of businessmen organized against the war in Vietnam demand the right to air their views in sixty-second broadcast editorials.' Members of a clothing workers union propose to buy a page of advertising space in a metropolitan daily newspaper to protest the importation of foreign-manufactured clothing.3 Individual citizens in- sist that they be allowed to use the origination facilities of their com- munity's cable television system to express their personal views on any subject.' In each case proponents of a point of view seek direct access to a communications medium that they do not generally control. If access is to be granted, some accommodation obviously is required among interests that are likely to conflict. With increasing frequency, scholars, courts and regulators have proposed that the accommodation be implemented through an affirma- tive right of access in the proponents as against the owners and manag- tAssociate Professor of Law and Adjunct Associate Professor of Communications, Policy, and Public Affairs, Duke University. 'The "gatekeepers" metaphor was first employed by David Manning White is his classic study of the screening role of editors. See The "Gate Keeper": A Case Study in the Selection of News, JOURNALISM QUARTERLY 383-90 (1950). 'Business Executives' Move for Vietnam Peace v. FCC, 450 F.2d 642 (D.C. Cir. 1971), rev'd sub non. CBS v. Democratic Nat'l Comm., 93 S. Ct. 2080 (1973). 'Chicago Joint Bd. v. Chicago Tribune Co., 435 F.2d 470 (7th Cir. 1970), cert. denied, 402 U.S. 973 (1971). 'See generally Botein, Access to Cable Television, 57 CORNELL L. REv. 419 (1972). 2 NORTH CAROLINA LAW REVIEW [Vol. 52 ers of the media enterprise.5 The proposals reflect a growing uneasiness 5 The access question has inspired a considerable literature. The weight of opinion in the law reviews favors some form of limited access. A majority of the access proposals have been offered in the context of the broadcast and cable media, but there is substantial support for access to the print media as well. See Barron, An Emerging First Amendment Right of Access to the Media?, 37 GEO. WASH. L. REV. 487 (1969); Barron, Access to the Press-A New First Amendment Right, 80 HARV. L. REV. 1641 (1967); Barron, Access-The Only Choice for the Media?, 48 TEXAS L. REV. 766 (1970); Botein, Clearing the Airwaves for Access, 59 A.B.A.J. 38 (1973); Botein, The Federal Communications Commission's Fairness Regulations: A First Step Towards Creation of a Right ofAccess to the Mass Media, 54 CORNELL L. REV. 294 (1969); Canby, The First Amend- ment Right to Persuade:Access to Radio and Television, 19 U.C.L.A.L. REV. 723 (1972); Clark & Hutchison, Self-Censorship in Broadcasting- The Cowardly Lions, 18 N.Y.L.F. 1 (1972); Dra- belle & Taylor, The President, The Fairness Doctrine, and PoliticalAccess to the Broadcast Media, 15 ST. Louis U.L.J. 73 (1970): Firestein, Red Lion and the FairnessDoctrine: Regulation of Broadcasting "In the Public Interest," 11 ARIZ. L. REV. 807 (1969); Johnson & Westen, A Twentieth-Century Soap-box: The Right to Purchase Radio and Television Time, 57 VA. L. REV. 574 (1971); Mallamud, The Broadcast Licensee as Fiduciary: Toward the Enforcement of Discretion, 1973 DUKE L.J. 89; Malone, Broadcasting, The Reluctant Dragon: Will the First Amendment Right of Access End the Suppressing of ControversialIdeas?, 5 U. MIcH. J.LAW REFORM 194 (1972); Scanlon, The FTC, the FCC, and the "Counter-Ad' Controversy: An Invita- lion to 'Let's You and Him Fight?', 5 ANTITRUST LAW & ECON. REV. 43 (1971); Zack, FC.C. and the FairnessDoctrine, 19 CLEV. ST. L. REV. 579 (1970); Comment, The Broadcast Media and the First Amendment: A Redefinition, 22 AM. L. REV. 180 (1972); Comment, And Now a Word Against Our Sponsor: Extending the FCC's Fairness Doctrine to Advertising, 60 CALIF. L. REV. 1416 (1972); Note, A FairBreak ForControversial Speakers: Limitationsof the FairnessDoctrine and the Need for Individual Access, 39 GEO. WASH. L. REV. 532 (1971); Note, Media and the First Amendment in a Free Society, 60 GEO. L.J. 867, 904-07 (1972); Note, Broadcastingand the Right of Access to Public Forums: Business Executives' Move for Vietnam Peace v. FCC, 6 GA. L. REV. 208 (1971); Comment, From the FCC's Fairness Doctrine to Red Lion's Fiduciary Principle, 5 HARV. CIv. RIGHTS-CIv. LIE. L. REV. 89 (1970); Note, The Duty of Newspapers to Accept Political Advertising-An Attack on Tradition, 44 IND. L.J. 222 (1969); Comment, Freedom of Speech and the Individual's Right of Access to the Airwaves, 1970 LAW & Soc. ORDER 424; Note, The Public Domain and a Right of Access: Affect Upon the Broadcast Media, 3 LOYOLA U.L.A.L. REV. 451 (1970); Comment, Constitutional Law: The Right of Access to the Press, 50 NEB. L. REV. 120 (1971); Note, Freedom of Expression in the Media: The Public's Clahn for a Right of Access, 33 OHIO ST. L.J. 151 (1972); Note, We Pick 'Em, You Watch 'Ena: First Amendment Rights of Television Viewers, 43 S.CAL. L. REV. 826 (1970); Note, "Public Interest," "Fairness," And the FirstAmendment: A Broadcaster'sDilemma, 4 SUFFOLK L. REV. 509 (1970). Note, Resolving the Free Speech-Free Press Dichotomy: Access to the Press Through Advertising, 22 U. FLA. L. REV. 293 (1969); 40 U. CIN. L. REV. 870 (1971); 85 HARV. L. REV. 689 (1972); 15 S.D.L. REV. 172 (1970); 24 VAND. L. REV. 131 (1971). There is, in addition, a substantial body of complementary writings which can be classified as neither clearly "for" nor "against" the proposals for access, but which nonetheless offer useful insights into the areas. See generally T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 653-71 (1970); Barron, In Defense of "Fairness":A First Amendment Rationalefor Broadcasting's "Fairness" Doctrine, 37 U. COLO. L. REV. 31 (1964); Botein, supra note 4; Cohn, Access to Television to Rebut the President of the United States: An Analysis and Proposal,45 TEMP. L.Q. 141 (1972); Houser, The Fairness Doctrine-An Historical Perspective, 47 NOTRE DAME LAWYER 550 (1972); Jaffe, Tie Fairness Doctrine, Equal Time, Reply to PersonalAttacks, and the Local Service Obligation: Implicatons of Technological Change, 37 U. CIN. L. REV. 550 (1968); Johnson, Freedom to Create: 1973] MASS MEDIA REGULATION with the apparent concentration of power in the American media and a corresponding concern for the viability of effective and diverse public debate. In their most extreme form, the proposals have called for recogni- tion of access to the press as "a new First Amendment right. ' 7 But the courts have not yet accepted these proposals. In particular, private newspaper publishers have argued successfully that the first amendment ordinarily protects them in their traditional right to edit the contents of their publications.8 Thus, the clothing workers either must persuade the publishers to print their editorial advertisements or look elsewhere to find an outlet for their views. Broadcasters, on the other hand, have not enjoyed the editorial autonomy of the publishers. Unlike publishers, broadcasters have long been subject to the "fairness doctrine," the requirement that they pro- vide a balanced treatment of controversial public issues? To be sure, The Implications of Anti Trust Policy for Television Programming Content, 8 OSGOODE HALL L.J. 11 (1970); Kalven, "Uninhibited, Robust, and Wide-Open"-A Note on Free Speech and the Warren Court, 67 MICH. L. REV. 289 (1968); Putz, Fairness and Commercial Advertising: A Review and a Proposal, 6 U. SAN. FRAN. L. REV. 215 (1972); Symposium, The FCC's Role in TV ProgrammingRegulation, 14 VILL. L. REV. 629 (1969); Comment, A ConstitutionalRemedy For the HighCost of Broadcast and Newspaper Advertising in Political Campaigns, 60 CALIF. L. REV. 1371 (1972); Note, The First Amendment and Regulation of Television News, 72 COLUM. L. REV. 746 (1972); Note, Cable Television and the FirstAmendment, 71 CoLUM. L. REV. 1008 (1971); Note, The Public Interest in Balanced Programming Content; The Case for FCC Regula- tion of Broadcasters' Format Changes, 40 GEO.
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