Trapped in Public: The Regulation of Street Harassment and Cyber-Harassment Under the Captive Audience Doctrine
19 Pages Posted: 17 Oct 2017 Last revised: 1 Nov 2017
Date Written: October 16, 2017
In the wake of the 2016 presidential election, public intimidation of women, particularly women of color, seems to be on the rise. Even before the election, however, a woman's presence on a public street or public website has routinely made her a target for unwanted and often threatening male attention, also known as street harassment or cyber-harassment. Scholars and journalists have called for laws that would penalize street and cyber-harassment. However, this type of legislative effort will be met with several difficulties, including logistical problems due to the high prevalence and anonymity of street and cyberharassment, as well as cultural opposition to what is perceived by many to be a nonexistent or minor issue with little actual consequences. Another major argument against regulation of street and cyber-harassment is that any laws prohibiting such speech would violate the First Amendment. In response to the latter argument, this Article argues that laws regulating street or cyber-harassment should be protected from First Amendment scrutiny under the captive audience doctrine. As this Article demonstrates, by using the captive audience doctrine, 652 legislators can attack the problem of street and cyber-harassment without running afoul of the First Amendment.
Keywords: cyberharassment, street harassment, freedom of expression, captive audience doctrine
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