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Can the Government Limit Speech to Protect a Captive Audience?
A Court Rejects a High School Student's Claimed Right to Anti-Gay Speech While Legislatures React to Offensive Protests at G.I. Funerals


Wednesday, Apr. 26, 2006

To what extent does the First Amendment permit the government to restrict speech in order to protect unwilling listeners against harmful messages? Two recent controversies pose this question--sometimes called the problem of the "captive audience."

In perhaps the least popular political protest in the history of the country, members of the Westboro Baptist Church of Topeka, Kansas, have been picketing the funerals of American service members killed in Iraq, brandishing placards with messages such as "Thank God for Dead Soldiers." A majority of states have either adopted or are considering legislation that would keep such protesters away from mourners, and Congress is also considering a bill that would apply at federal cemeteries.

Meanwhile, last week the United States Court of Appeals for the Ninth Circuit ruled that a California public high school probably did not violate the free speech rights of a student when it asked him to remove a T-shirt on which he had written the messages "Be Ashamed, Our School Embraced What God Has Condemned" on the front and "Homosexuality Is Shameful" on the back. (The ruling, in Harper v. Poway Unified School Dist., was couched in probabilities because it arose in the context of review of the trial court's denial of a preliminary injunction, for which the applicable legal standard looks to the "likelihood of success on the merits.")

The funeral protester controversy and the Harper case both involve anti-gay speech. The Westboro Baptists believe that God is punishing the United States for its toleration of homosexuality by killing our soldiers and marines in Iraq. (If so, God must indeed work in mysterious ways, for the military formally excludes homosexual service members.)

There is also a legal connection between the two controversies. In both, the speakers have a First Amendment right to use many means to spread their respective messages, however offensive or hurtful. If Tyler Harper, the high school student in the California case, chose to wear his T-shirt in a park on the weekend, or to put its message on his personal website, he would be acting within his rights. Likewise, no government officials deny that the Westboro Baptists are free to publish a newsletter or even stage public demonstrations at which they express their viewpoint. The question in each case is not whether the speakers have a right to say their piece, but where and when.

In both instances, the government contends that whatever rights these speakers have to make their points elsewhere, the First Amendment does not guarantee the right to direct messages at people who will find them deeply hurtful, and who have no effective means of simply tuning them out. In both instances, in other words, the offensive messages are targeted at a captive audience.

The restrictions in both controversies may well be justified, but, as I explain below, the captive audience concept is slippery. If taken to its logical stopping point, it could justify extensive restrictions on freedom of speech.

The Harper Case: A School Censors an Anti-Gay T-Shirt

The Harper case arose out of efforts in 2003 by members of the Poway High School Gay-Straight Alliance to teach tolerance to their fellow students through a "Day of Silence." Some straight students did not welcome the lesson, and conflicts ensued, resulting in suspensions. Accordingly, when the Gay-Straight Alliance scheduled its 2004 Day of Silence, school officials were on the lookout for any sign of trouble.

They found one such sign in Harper's T-shirt, which he wore on the Day of Silence and the following day. He was asked to remove his shirt, and because he refused, he ended up spending the day in the front office. Although no further actions were taken against Harper, he nonetheless sued the officials, raising a number of constitutional claims--the only really plausible one among them, the claim that the school officials violated his constitutional right to free speech. Nonetheless, the federal district court denied his motion for a preliminary injunction against the school and various officials, in which he asked that they be enjoined from violating his constitutional rights.

In affirming the district court's denial of the preliminary injunction motion, the Ninth Circuit applied a line of Supreme Court precedents that recognize two competing principles. On the one hand, as the high court explained in the 1969 case of Tinker v. Des Moines Independent Community School Dist., students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Yet on the other hand, as the Court noted in the 1988 ruling in Hazelwood School Dist. v. Kuhlmeier, "the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings."

In the school setting, the Ninth Circuit held, the free speech rights of students must be balanced against the rights of other students, including the right of gay and lesbian students, to receive an education free of what Judge Stephen Reinhardt, writing for the majority in Harper, called "verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

Judge Alex Kozinski dissented in Harper. He thought that school authorities should not be permitted to prohibit speech of the sort contained on Harper's T-shirt unless it was likely to lead to violence or is "so severe and pervasive as to be tantamount to conduct." Finding nothing in the record to indicate that either of these conditions had been met, Judge Kozinski thought that Harper was entitled to the preliminary injunction.

Can the Captive Audience Rationale of Harper Be Limited to Schoolchildren?

Let us put aside the question of whether Judge Reinhardt (joined by Judge Sydney Thomas) or Judge Kozinski had the better of the argument on the law and facts of the Harper case. They agreed that it was a hard case.

Let us focus, instead, on whether the rationale of Harper--the captive audience concept--can be confined to schools. One distinction immediately presents itself: the distinction between minors and adults.

But is the captive audience rationale really inapplicable to adults? In the 1990s, many undergraduate colleges that were otherwise committed to principles of free speech, embraced speech codes restricting racist, sexist and other offensive language on the theory that such speech made members of the college community feel unwelcome. In other words, these codes were premised on the notion that college students are a captive audience for speech by other undergraduates.

However, even the majority judges in the Harper case thought the captive audience rationale could not be stretched to cover college students. Judge Reinhardt stated in his opinion that if Harper and his classmates were older--if they were college students at a state university, rather than high school students at a public high school--then the First Amendment would protect Harper in wearing his T-shirt on campus.

Does that mean that the captive audience rationale can never apply to adults? Certainly not.

Consider the widely-shared view that the state may legitimately require protestors like the Westboro Baptists to keep their distance from mourners at the funeral of a fallen soldier, sailor or marine. Surely such mourners may be protected even if they are all adults.

The Captive Audience Rationale in Particular Places

Indeed Supreme Court case law expressly permits state regulation of speech to benefit "captive" adults. For example, in the 1988 case of Frisby v. Schultz, the Justices upheld a Wisconsin ordinance that forbade picketers from targeting a residence. Quoting prior precedent, the Court explained: "That we are often 'captives' outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives everywhere."

Even as cases like Frisby reject the notion that the captive audience rationale can be confined to cases involving children, they endorse a different distinction: The captive audience concept applies only in special places. Clearly the home counts as one such place. Are there others?

Yes, there are plenty. Although the issue has yet to reach the courts, the Westboro Baptist protests strongly suggest that mourners at a funeral should count as captives. At one time or another, lower courts have also relied on the captive audience rationale to uphold restrictions on expression at military induction centers and outside abortion clinics, as well as to uphold restrictions on panhandling in the New York City subways. Meanwhile, commentators have often suggested that laws restricting verbal harassment in the workplace can be justified on the ground that employees are a captive audience of their co-workers.

Does the First Amendment Protect a Right to Annoy Other People?

If one is a captive at home, at work, and, at least as seen by some judges, in transit between home and work, it might seem that the captive audience rationale applies nearly everywhere. But in fact, that would be a considerable exaggeration. The Supreme Court in Frisby and other cases has clearly stated that the captive audience principle generally does not apply.

Nonetheless, the captive audience rationale for limiting speech to an unwilling audience highlights a question about free speech doctrine more generally: Why, exactly, should people ever be required to read, listen to, or otherwise be exposed to messages with which they disagree?

Surely part of the answer is that exposure to unwanted messages is a side-effect of protecting the rights of speakers to find willing listeners. Those who deplore the contents of The New York Times or The Wall Street Journal must look away when their eyes happen to fall on the hated newspaper--even when it's being read by the person seated directly across from them on the subway--although this means a second or two of unpleasantness, because any other rule would impose serious burdens on those who wish to read the Times or Journal.

But this is not the whole story, or at least it shouldn't be. The First Amendment may also protect the right of speakers to direct their messages at those who would rather not hear those messages--at least for a short time. In other words, perhaps the First Amendment should be construed to protect annoying speech, or, to put the point more forcefully, to protect speech that makes listeners uncomfortable because it challenges their previously unquestioned beliefs.

In an era when the proliferation of cable channels and websites permits citizens to pre-select their information sources in a way that confirms, rather than challenges, their views--with conservatives tuning in to Fox News and reading the National Review, while liberals log on to the Daily Kos and subscribe to The Nation--and when even the President screens the participants in his staged "town hall meetings" to ensure that they hold approved viewpoints, speakers have an increasingly difficult time reaching those whose minds they actually hope to change.

Of course, captive audiences shouldn't be subject to threats or abuse. Thus, the Ninth Circuit in Harper and the legislatures responding to the Westboro Baptists may well be right that these are cases of speech that goes too far. But we must be careful not to put too much faith in the captive audience rationale for limiting expression, lest we eliminate the only sort of audience that remains for persuasive speech.

Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. He is the author of No Litmus Test: Law and Politics in the Twenty-First Century.

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