stern's thoughts on "captive audiences"
MSternAJC at AOL.COM
MSternAJC at AOL.COM
Fri Feb 11 14:01:39 PST 2000
Part of the problem with dealing with captive audience in the contact of
a public forum is that the forum doctrine covers so many kinds of cases that
discussion is inevitably confused.
It is common ground, and I do not contest, the principle, that the
freedom of speech REQUIRES, AS the Court put it that we must put up with the
fact that we will encounter speech we will not wish to hear.(I wonder how
many of the advocates of rejecting captive audience analysis in the prayer
context are happy with the result in Eronznick,in which the Court held that
the city could not prohibit an outdoor theater from playing pictures with
nude scenes, scenes that were offensive to many).But the Court limited that
principle to the case in which after the original contact with the speech one
could turn away and walk away. ON the other hand, where the ability to walk
away does not exist or where would should not have to walk away, the Court
has invoked the captive audience principle and upheld limitations on speech.
Public forum doctrine was first invoked in cases where the speaker sought
access to government owned land to speak to those who wanted to listen. Those
cases pose no captive audience problem, even if someone is forced to turn
away or throw out an unwanted circular.
But invocation of the public forum context in Santa Fe is entirely different.
The audience is not free to walk away. It is not even free to respond to the
speaker, as one could to a speaker on a public sidewalk or in a public park.
The position of the student in that case is no different from that of the
householder who is present as of right but cannot leave (or should not be
asked to leave).There is no captive audience in Good News,because ut is an
after school club.
Michael makes the point hat even if there is a captive audience problem
the schools have to protect students against it without regard to viewpoint
discrimination. I think it is not settled that a ban on religious speech is
viewpoint based, as opposed to subject based. I also think, contrary to the
position of many liberal colleagues that the captive audience principle ought
to be available to students to avoid religiously objectionable texts. But
the act of holding an audience captive is for me state action. There is no
ban on coercing attendance at a schools secular ideological
speech-otherwise as some have argued here public education is
imposssible.THere is a ban on coerced attendance at RELIGIOUS SPEECH.
THERE ARE HARD CASES, BUT Santa Fe SHOULD NOT BE ONE OF them.
The CAPITALIZATION IS NOT FOR EMPHASIS BUT A REFLECTION OF MY INFERIOR TYPING
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