R. George Wright (Indiana University Robert H. McKinney School of Law) has posted The Captive Audience Doctrine Today on SSRN. Here is the 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 speak of compelled speech. When an audience’s listening to the speech is unwilling, we may speak of a captive audience. But the law is fundamentally unclear on how to determine whether an audience is captive or not. The law has, as well, not carefully thought through 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 best 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 of 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, of the established captive audience case law. The main recommendation below is, in particular, of a judicial focus on what we shall call minimal civil respect by speakers of the audience in question.
Recommended.
