Monday, August 4, 2008
Jack M. Balkin, Yale University Law School, has published, "Media Access: A Question of Design," in volume 76 of George Washington Law Review (2008). Here is the abstract.
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.
Download the essay from SSRN here.