E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This essay, written for a symposium in honor of Jerome Barron, asks what media access means in the age of the Internet. Twentieth century debates about media access presupposed a relatively small group of private media owners who tightly controlled access and who combined content delivery with content production. Today a central element of many telecommunications business models is providing widespread access to content delivery systems and encouraging mass participation in content production. That is because many business models increasingly depend on attracting user-generated content.
In 1967, Jerome Barron argued that First Amendment doctrines created by courts could help secure media access and promote public participation in mass media. Although First Amendment *values* remain important in shaping public policy and technological design, the First Amendment itself, at least as interpreted by courts, will do relatively little to promote these goals.
When people debate whether the First Amendment guarantees positive rights enforceable by courts, or rights of access to private media, they have probably already assumed a particular kind of media ecology, and taken existing business models and technology as a given. This is a mistake. Technology policy is prior to these rights questions. It is not prior logically or jurisprudentially, but practically. If the system of mass communications is designed correctly, better media access is already built into the system and into the existing models of business competition. The Internet by itself does not guarantee effective media access. It has to be built in a certain way: to facilitate openness and participation. Judges are not particularly good at this task.
The basic problem of media access is not constitutional in the legal sense, i.e., what the U.S. Constitution demands or forbids. Rather, it is "constitutional" in a technological and social sense: what kinds of technologies, business models, social formations, and user practices constitute the media ecology. To promote media access today, we must look beyond the boundaries of judicially created First Amendment rights; we must look instead to issues of technological design and to law's role in shaping and regulating technologies, business models, and end-user practices.
I wish I could read beyond abstract, but in my opinion (Reed Hundt) Jack has done a fine thing by tackling this topic. My tentative view is that rules don't rule, market structure rules.
I would also say that the evolution of the ecology - for example listservs to blog - has an important affect on just what gets to be important diseminated media vs. marginalized diseminated media which affects the constitution of the thought space.
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