Captive audiences

[Volokh, Eugene]

        I agree with Marc that the government probably has broad -- though
not unlimited -- power to prevent speakers in *nonpublic fora* from imposing
on a captive audience (see, e.g., Lehman); this is of course the situation
here.

        But it does not have such power to restrict speech by speakers on
private property, or in traditional public fora, *especially* when it's
restricting such speech in content-based ways.  Consider Carey v. Brown,
which struck down a content-based ban on residential picketing.  Imagine
also what would have happened if the City of Shaker Heights tried to ban
political ads in *private* buses -- surely that would be unconstitutional,
no?  (Note that Con Ed and Metromedia both specifically stressed that Lehman
was limited to situations where the government was exercising its power as a
landlord.)

        Likewise, consider picketing.  Picketing outside a business involves
a captive audience of employees, who have to pass the picket lines twice a
day, and sometimes more often, and who sometimes have to see the picket line
from their job stations.  But that's constitutionally protected.  Likewise,
Madsen and Schenck *upheld* the speakers' rights to picket outside abortion
clinics, even though indeed such picketing involves a sort of captivity on
the part of patients and certainly on the part of clinic employees; Madsen's
approval of the restriction on picketing within the 36 foot zone was based
not on captivity, but on the fact that prior, narrower injunctions did not
succeed in preventing picketers from scuffling and from blocking the clinic
entrance.

        See generally
http://www.law.ucla.edu/faculty/volokh/harass/substanc.htm#CAPTIVE for more
details and for cites.

> -----Original Message-----
> From: MSternAJC at AOL.COM [SMTP:MSternAJC at AOL.COM]
> Sent: Thursday, February 10, 2000 10:33 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Laycock's post on Santa Fe
>
> Once again, I am troubled by the exclusive focus on the rights of the
> speaker. In the ordinary public forum case the speaker seeks only to speak
> to
> those who would stop and listen. Here the school provides something of a
> captive audience (How captive of course depends on the importance of the
> event. Would those who think that the importance of the event irrelevant
> think that a school rule allowing students to vote on whether to have an
> invocation or prayer at assemblies would also be constitutional? What
> about
> in a classroom.) The Supreme Court has to the best of my knowledge never
> upheld a free speech claim as against the rights of a captive audience (as
> for example in the abortion clinic picketing cases, the seven dirty words
> case,  and Shaker Heights).Some religious speech amy to fleeting to
> capture
> the audience,but that hardly seems to be the case here.
> Marc Stern
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