The First Amendment Right Against Compelled Listening

78 Pages Posted: 5 Mar 2009 Last revised: 21 Dec 2012

Caroline Mala Corbin

University of Miami School of Law

Date Written: March 4, 2009

Abstract

This Article argues for a new First Amendment right: the right against compelled listening. Free speech jurisprudence - which already recognizes the right to speak, the right to listen, and the right against compelled speech - is incomplete without the right against compelled listening. The same values that underlie the other free speech rights also lead to this right. Furthermore, this claim holds true regardless of whether one conceives of the primary purpose of the free speech clause as creating a marketplace of ideas, enhancing participatory democracy, or promoting individual autonomy. The Article starts by examining the protection afforded to unwilling listeners by the captive audience doctrine, which balances private speakers' right to communicate against listeners' rights to privacy, equality, and voting. It then argues that protection for captive listeners can be grounded in free speech values, and explores two possible approaches to delimiting the free speech right against compelled listening. The Article concludes by applying the new right to state-mandated abortion counseling and state-mandated diversity training.

Keywords: First Amendment, free speech, captive audience, privacy, harassment, hate speech, compelled speech, compelled listening, autonomy, marketplace of ideas, deliberative democracy, participatory democracy, reproductive rights, abortion, abortion counseling, ultrasound, diversity training

JEL Classification: Z00

Suggested Citation

Corbin, Caroline Mala, The First Amendment Right Against Compelled Listening (March 4, 2009). Boston University Law Review, Vol. 89, 2009. Available at SSRN: https://ssrn.com/abstract=1353489

Caroline Mala Corbin (Contact Author)

University of Miami School of Law ( email )

1311 Miller Drive
Coral Gables, FL 33146
United States

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