CAPTIVE AUDIENCE

The Supreme Court has encountered conflicts between freedom of speech and privacy. In some cases speech conflicts with a nonspeech interest, such as a claimed right to preserve one's peace and quiet. In other cases speech interests may be discerned on both sides; the listener objects to having to hear an uncongenial message. The notion of "captive audience" refers to both types of case. The right not to be compelled to listen to unwelcome messages may be viewed as a corollary to the right not to be compelled to profess what one does not believe, announced in west virginia board of education v. barnette (1943).

Justice william o. douglas first argued the rights of captive auditors in a dissent in Public Utilities Commission v. Pollak (1952). His views reemerged in Lehman v. Shaker Heights (1974). There a city-owned transit system devoted transit advertising space solely to commercial and public service messages, refusing space to a political candidate. Four Justices held that placard space in city-owned buses and street cars did not constitute a public forum because the space was incidental to a commercial transportation venture. Admitting, however, that city ownership implicated state action, the four agreed that the transit system's advertising policies must not be "arbitrary, capricious, or invidious." The ban on political advertising was a reasonable means "to minimize chances of abuse, the appearance of favoritism and the risk of imposing upon a captive audience."

Justice Douglas concurred. His main point was that commuters, forced onto public transit as a economic necessity, should not be made a captive audience to placard advertising they cannot "turn off." They have a right to be protected from political messages that they are totally without freedom of choice to receive or reject.

The dissenters argued that, whether or not buses and streetcars were special-purpose publically owned property that could be denied public forum status, the city could not constitutionally discriminate among placard messages on the basis of their content.

A finding that a public forum did exist would likely be decisive for the captive audience issue. Surely there is only the most attenuated "right not to receive" when one enters a public forum whose very definition is that it is open to all senders; those who do not wish to receive a particular visual message are expected to turn away their eyes. Lehman and cohen v. california (1971) illustrate this tension between the public forum and captive audience concepts.

Martin Shapiro
(1986)

Bibliography

Black, Charles 1953 He Cannot Choose but Hear: The Plight of the Captive Auditor. Columbia Law Review 53:960–974.

Cahill, Sheila M. 1975 The Public Forum: Minimum Access, Equal Access and the First Amendment. Stanford Law Review 28:117–148.