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The Captive Audience Doctrine Today

by R. George Wright

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Abstract

At its simplest, freedom of speech presumes a willing speaker and a willing listener. When the speaker’s utterance is itself unwilling, we may call this compelled speech. When an audience’s listening to the speech is unwilling, we may refer to this as a captive audience. But the law is fundamentally unclear on how to determine whether an audience is captive. The law has, as well, not carefully considered the various possible responses to a judicial finding that an audience is indeed captive. Some instances of audience captivity to speech are constitutionally justifiable, but others are not. Some attainable general theory to distinguish these instances is needed.

This article examines the range of judicial understandings of a captive audience, including issues of definition and justification. The aim is to offer a conceptually and normatively more satisfactory account of a captive audience, and a meaningful test that opens the door to sensible adjudication of alleged and actual captive audience cases. As it turns out, an improved understanding of the logic of the captive audience doctrine requires modification, but hardly a revolutionary overturning. The main recommendation below proposes judicial emphasis on what we shall call minimal civil respect by speakers of the audience in question.

The Captive Audience Doctrine Today

by R. George Wright

Click here for a PDF file of this article

Abstract

At its simplest, freedom of speech presumes a willing speaker and a willing listener. When the speaker’s utterance is itself unwilling, we may call this compelled speech. When an audience’s listening to the speech is unwilling, we may refer to this as a captive audience. But the law is fundamentally unclear on how to determine whether an audience is captive. The law has, as well, not carefully considered the various possible responses to a judicial finding that an audience is indeed captive. Some instances of audience captivity to speech are constitutionally justifiable, but others are not. Some attainable general theory to distinguish these instances is needed.

This article examines the range of judicial understandings of a captive audience, including issues of definition and justification. The aim is to offer a conceptually and normatively more satisfactory account of a captive audience, and a meaningful test that opens the door to sensible adjudication of alleged and actual captive audience cases. As it turns out, an improved understanding of the logic of the captive audience doctrine requires modification, but hardly a revolutionary overturning. The main recommendation below proposes judicial emphasis on what we shall call minimal civil respect by speakers of the audience in question.