Access to the media encompasses the efforts and rights of individuals and groups to represent their views through the pages or airtime of established media entities – private or public. It should not be confused with access to information or even the related question of open-access television. The access-to-media question typically arises when a political candidate wants advertising or free airtime or when a person, business, or group demands time (or space) to reply to a news report or present a competing analysis. More broadly, the question asks whether society can or should force a publisher or broadcaster to devote space or time to diverse subjects and viewpoints.
Whether the public should have narrow, broad, or even any access-to-media rights is a question on which free expression advocates often disagree (Barendt 2005). The opponents of mandated access see government intervention or compulsion as dangerously contrary to free expression. Proponents argue access, even if compulsory, improves the quality and breadth of expression and serves the public interest (Barron 1973).
If government may compel speech and thus interfere with private allocation of newspaper space and broadcast time, access opponents insist, journalists are not truly free because some will refrain from controversial speech to avoid compulsory access (Schmidt 1976). This view, common in the United States, for example, reflects a strong suspicion of government and a conception of expressive rights as rights against government and not also against large or concentrated media entities or as positive rights to an informed and fair debate (Barendt 2005).
The countervailing view focuses on the power of the modern news media, the concentration of ownership of major media outlets, the reciprocal value of equal opportunity to speak among all speakers, and the public nature of broadcast licenses that allocate a finite electromagnetic spectrum. The scarcity or finite spectrum argument is losing its force as technological advances provide more diversity among the broadcast media. Without creating absolute or comprehensive public rights of access to private or public news media, some legal systems, such as those in France, Germany, and elsewhere in Europe, place a greater emphasis on access and reply rights as well as pluralist interests (Barendt 1989, 2005; Paraschos 1998).
Significant Factors Affecting National Policies
In evaluating the access-to-media question across national borders, there are six questions on which national law and policy often turn: (1) Does the society distinguish between print and broadcast media and, among broadcasters, between those using public airwaves and those transmitting by cable or satellite? (2) Are there differences in the law applicable to private media and that applicable to government-funded, -owned, or -controlled media? (3) Does the society have relatively few media outlets (or highly concentrated ownership) and a greater need for access rights? (4) What is the history of the society, from civil liberties to experiences with war or genocide? (5) Does the law examine the nature of the relevant statement to determine if a reply or access right is triggered (e.g., differences between opinions and statements of fact and between private persons and public officials)? (6) Is the mode of communication fairly new and thus more likely to be regulated, possibly including some equal access obligation?
Although not exhaustive, this list allows one to evaluate thoroughly different approaches to access rights, as shown by a comparison of the law in the United States and Canada with that of several European countries and the European Union generally.
Access to Media in The United States and Canada
The law in the United States, until the late 1980s, reflected a sharp contrast between broadcast and print media. The key decisions of the Supreme Court were Red Lion Broadcasting Co. vs FCC (unanimously upholding in 1969 at least one part of the Federal Communications Commission’s fairness doctrine, requiring, among other things, the airing by broadcast licensees, at their expense, of a reply by a person attacked or criticized), and Miami Herald vs Tornillo (unanimously declaring in 1974 Florida’s right of reply statute unconstitutional because newspapers enjoyed a strong First Amendment right, rooted in history, to control content of and access to their pages, in contrast with the regulated broadcast media). The Supreme Court saw the two media through different historical and legal lenses and found the First Amendment more protective of the print media.
In Red Lion, the court reasoned that any regulatory interference with broadcasters through mandatory rights of reply was permissible because the broadcaster held its license in trust for the public and through government’s apportionment of the scarce electromagnetic spectrum. This decision did not recognize a general right of public access to the broadcast media. The right of reply was a limited one, conditioned on the FCC rule and triggered by the personal attack. The Court held in Tornillo that the limited power to mandate access or replies in the broadcast media did not extend to the print media. The Court stressed the First Amendment right of editors to select the news, and the fear that mandatory rights of reply would cause some to avoid controversial issues and thus deprive the public of information or opinion. The case did not address other media access questions.
With the development of cable and other technologies, the spectrum scarcity and public trusteeship regulatory rationales fell out of favor in the 1980s, as did the fairness doctrine (Barron 2003; Cable Television; Satellite Television). The fairness doctrine, of which the personal attack or reply rule was one part, required that broadcasters devote a reasonable amount of airtime to public issues and present competing points of view on important public issues. The doctrine did not require equal treatment of issues or viewpoints, and broadcasters made the ultimate reporting decisions. Nonetheless, by requiring the reporting of diverse ideas and issues, the fairness doctrine was the pinnacle of compelled access to any US media.
The FCC rescinded in 1987 the fairness doctrine rules requiring presentation of diverse views, but left largely intact the rules regarding personal attacks, licensure, indecency, political advertising, equal candidate airtime, replies to political editorials opposing a candidate, and media cross-ownership. In 2000, a federal appeals court ordered the FCC to abolish the personal attack and political editorial rules as well.
Compelled access and replies are, therefore, essentially dead in the United States (Barron 2003). Occasionally public interest groups unsuccessfully petition Congress for reinstatement of the fairness doctrine. Broadcasters and newspapers that publish replies and diverse views do so for good business or other reasons, including state laws that often limit defamation damages if a publisher or broadcaster has published a retraction.
Although Canada’s free expression law differs from that of the United States in several respects, Canada, like the United States, provides neither reply nor broad media access rights and protects expression only against government violations (Barendt 2005). In contrast, the American Convention on Human Rights provides a strong right of reply without limitation of other legal remedies, but neither the United States nor Canada is among the more than 20 countries of the Americas that have ratified the convention.
Access to Media in Europe and Elsewhere
European countries and the European Union do not as a rule recognize broad, judicially enforced access-to-media rights, but European law generally shows a greater concern for social and media pluralism than American law does (Paraschos 1998). Public broadcasters tend to face stricter regulation and scrutiny in terms of fairness, quality, and breadth of news coverage than do private broadcasters or newspapers. Most European countries have not adopted constitutional rights of access (by individuals or groups) to any media, though rights of reply, subject to various details, in the print and broadcast media are more common (Schmidt 1976; Coliver 1993; Paraschos 1998). A refusal of a newspaper to publish a reply may, for example, allow one to seek a judicial review and remedies, including fines, publication of the reply, or a right to file a defamation action. The European Union has acknowledged through Chapter VI, Article 23, of EU Directive 89/552/EEC of 3 October 1989 that “any natural or legal person, regardless of nationality, whose legitimate interests, in particular reputation and good name, have been damaged by an assertion of incorrect facts in a television programme must have a right of reply or equivalent remedies”.
The UK has historically maintained a traditional or negative rights approach to this question by protecting expression against only governmental interference and not against the news media itself or other commercial interests, though it has also provided more informal rights of reply (Barendt 2005). The UK has tried, with limited success, various means (e.g., voluntary news councils) of encouraging publication of replies and alternative viewpoints – an approach also tried in the United States.
France, Germany, and other EU members have not generally enforced broad public rights of access to the news media or used judicial intervention to ensure fairness or impartiality in news coverage (Coliver 1993; Paraschos 1998). Many, however, recognize individual and societal interests in avoiding governmental or commercial media domination of programming schedules (Barendt 2005) and provide an assortment of remedies to people who believe they were covered unfairly.
France provides for both the right of an individual to respond to a publication in which he or she is identified and the right of a public official to reply when the newspaper has falsely reported about the official’s activity (Coliver 1993). Concerns for pluralism are strong in France and elsewhere in Europe. French courts have ruled that Parliament must balance individual expressive rights in broadcasting with other values, including pluralism (Barendt 2005). Italy and Germany, for example, recognize the rights of the public or recipients of information as well as the speakers, but do not emphasize pluralism in the same manner as France does.
In Germany, the Constitutional Court has ruled that because broadcasting freedom must serve free expression, broadcasters do not have complete freedom to determine program schedules and must take into account the interests of viewers. German constitutional rulings also require that government prevent domination of broadcasting scheduling and programs by commercial and state interests (Barendt 2005).
The European Convention on Human Rights and Fundamental Liberties (ECHR) may prove to be a basis less for positivist access rights and more for general broadcast regulation and diversity (Barendt 2005). Individuals may bring to the European Court of Human Rights claims that a European state violated rights under the ECHR, including Article 10, which protects essentially negative rights against governmental interference. Article 10 does not create access-to-media rights, but it focuses on broadcast licensing and allows free speech limitations only when “necessary in a democratic society.” The ECHR in 1994, in Informationsverein Lentia vs Austria, ruled that a state broadcast licensing system or public monopoly interfered with media pluralism and was allowed only if necessary to achieve quality programming. Because the electromagnetic spectrum was no longer a serious constraint, the Court ruled Austria could license private broadcasters and require quality programming of them. The Court did not apply Article 10 to create a positive right of access to the public monopoly, but did apply it to open new channels or diversity within the regulated environment (Barendt 2005).
Other countries, including western and nonwestern societies, present both similar and significantly different approaches to the access question. Analyses of access questions in those countries must begin with fundamental questions about local laws and approaches to freedom of the press and expression generally. Some reflect at least a degree of western influence. Japan, for example, reflects not only its own heritage, but also the influence of the American occupation following World War II (Haiman 1987). Japan reflects a legal and journalistic approach that is less adversarial than that found in the United States or many European countries, but nonetheless Japan has allowed courts to require the publication or broadcast of corrections to remedy certain falsehoods that injured reputation (Haiman 1987). Nondemocratic or authoritarian regimes present additional problems in the analysis of access to media because the media in those countries are generally subject to stringent governmental control.
- Barendt, E. (1989). Freedom of speech, 1st edn. Oxford: Oxford University Press.
- Barendt, E. (2005). Freedom of speech, 2nd edn. Oxford: Oxford University Press.
- Barron, J. A. (1973). Freedom of the press for whom? The right of access to the media. Bloomington, IN: University of Indiana Press.
- Barron, J. A. (2003). Rights of access and reply to the media in the United States today. Communications and the Law, 25, 1–12.
- Bollinger, L. (1991). Images of a free press. Chicago, IL: University of Chicago Press.
- Coliver, S. (ed.) (1993). Press law and practice: A comparative study of press freedom in European and other democracies. London: Article 19.
- Haiman, F. (1987). Citizen access to the media: A cross-cultural analysis of four democratic societies. Chicago, IL: Northwestern University Institute for Modern Communications.
- Informationsverein Lentia vs Austria – 37093/97  ECHR 785 (28 November 2002).
- Miami Herald Publishing Co. vs Tornillo, 418 US 241 (1974).
- Paraschos, E. E. (1998). Media law and regulation in the European Union: National, transnational and US perspectives. Ames, IO: Iowa State University Press.
- Red Lion Broadcasting Co. vs Federal Communications Commission, 395 US 367 (1969).
- Schmidt, B. (1976). Freedom of the press vs public access. New York: Praeger.