Captive Audiences and Free Speech

The idea that speech may be curbed to protect the sensibilities of an audience held captive by the speaker is rooted in the notion that governmental power ‘‘to shut off discourse solely to protect others from hearing it [is] dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner’’ Cohen v. California, 403 U.S. 15 (1971). This principle is especially applicable to audiences held captive in their own homes. In Rowan v. United States Post Office Department, 397 U.S. 728 (1970), the Supreme Court upheld a federal law that permitted mail recipients to require the Post Office not to deliver mailings of ‘‘sexually provocative’’ materials from senders specified by the postal customer. The sanctity of the home is, however, not unlimited. In Consolidated Edison v. Public Service Commission, 477 U.S. 530 (1980), the Court struck down a government regulation barring utilities from mailing political matter to their customers along with their bills, and in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), the Court voided a federal law banning the mailing of unsolicited advertisements for contraceptives, reasoning that the short ‘‘journey from mail box to trash can’’ was an acceptable burden to preserve free speech. These cases may be reconciled by noting that in Rowan the government merely acquiesced to private choice concerning the avoidance of unwanted communications, whereas in Consolidated Edison and Bolger the government itself decided on the material from which private citizens should be shielded. On that reading, the captive audience doctrine amounts to a privately held veto over speech that intolerably invades substantial privacy interests.

Captive audiences are not confined to the home. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld discipline of a radio station for broadcasting a vulgar comedy routine during hours that children might be listening. While Pacifica involved more factors than a captive audience, both Lehman v. Shaker Heights, 418 U.S. 298 (1974), and Public Utilities Commission v. Pollak, 343 U.S. 451 (1952), were concerned, respectively, with the captivity of bus passengers subjected to placard advertising and radio programming. Because the passengers had little choice but to listen or watch, Justice Douglas characterized them as captives.

Because the Supreme Court has never fully explained the import of the captive audience principle, its scope remains unclear. For example, may governments require computer and television manufacturers to insert devices that enable users to block certain unwanted programming? The principle reconciling Consolidated Edison, Bolger, and Rowan suggests that governments could do so. What if the blocking technology does not permit unlimited user choice, but merely gives the user a choice among a variety of preselected forms of programming? The same principle suggests that constriction of private choice would be impermissible if mandated by government, but perhaps not if it resulted from only the manufacturers’ decisions. In short, there remains uncertainty about what constitutes a captive audience and what governments may do to protect captive audiences from unwanted messages.

CALVIN MASSEY

References and Further Reading

• Strauss, Marcy, Redefining the Captive Audience Doctrine, Hastings Const. L. Q. 85 (1991): 19

Cases and Statutes Cited

• Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983) 
• Cohen v. California, 403 U.S. 15 (1971) 
• Consolidated Edison v. Public Service Commission, 477 U.S. 530 (1980) 
• FCC v. Pacifica Foundation, 438 U.S. 726 (1978) 
• Lehman v. Shaker Heights, 418 U.S. 298 (1974) 
• Public Utilities Commission v. Pollak, 343 U.S. 451 (1952) 
• Rowan v. United States Post Office Department, 397 U.S. 728 (1970) 

See also Bolger v. Youngs Drug Products Corp., 463, U.S. 60 (1983); Broadcast Regulation; Cohen v. California, 403 U.S. 15 (1971); FCC v. Pacifica Foundation 438 U.S. 726 (1978); Rowan v. United States Post Office Department, No. 399, 397 U.S. 728 (1970)