Captive Audiences and the First Amendment

Abstract

In this six-page magazine piece, I consider how First Amendment jurisprudence accounts for the possibility of listener self-help. My starting point is the observation that, in this context, the existence of a cost-effective self-help remedy has long been taken to be a good reason to disallow government regulation meant to accomplish similar ends. Why, the courts implicitly ask, should the government be allowed to regulate speech when an offended party can just as effectively turn a blind eye? From there, I note that the opposite argument has also had purchase in court decisions: where a captive audience has no effective self-help mechanism by which to avoid exposure to a given communication, that absence of a plausible self-help mechanism has been accepted as an argument in favor of direct government intervention. My main contribution is to then challenge this latter notion. As I argue in the piece, the absence of plausible self-help remedies is not merely a deficiency that the government ought to be allowed to address, but also an opportunity that the government ought not be allowed to squander without justification. After all, society has a strong interest in finding ways to ensure that each of us is exposed to a wide variety of conflicting perspectives. Captive audiences often represent a relatively low-cost means by which to achieve that goal.