On our sister blog, Rhapsody in Books, we recently reviewed the first two books of the Chaos Walking Trilogy, in which the author, journalist Patrick Ness, asks what would happen if there was no escape from noise, not even from the thoughts of others. His speculations on the resulting dystopia are fascinating.
Robert Freedman looks at our contemporary society and suggests that digital media almost takes us down that same road. As Freedman suggests,
At an accelerating pace, audio and video media are becoming ubiquitous on planes, trains, buses, cabs, street corners, building lobbies, elevators, offices, stores, bars, restaurants, hospitals, doctors’ offices, banks, gyms, coin laundries, even restrooms — in short, every setting in which we conduct the business of our lives.”
His book attempts to show how digital media are so much more invasive than print media, how they have been utilized to take advantage of captive audiences, and where the movement for and against audience captivity is heading.
It’s because of its invasive nature that industry insiders refer to audiences of strategically located digital media as ‘captives.’ . . . The massive investment in captive-audience platforms isn’t being made on the hope that audiences will consume this unsolicited messaging; it’s being made with the understanding that the audiences are held hostage to it, and are thus going to consume the messaging whether they want to or not.
As George Schweitzer, marketing chief for CBS, a big captive-audience player, has said, ‘We’re looking for places we can be intrusive,’ where ‘you can’t turn us off.’”
Freedman touches upon, but does not discuss in detail, the legal issues presented by subjecting captive audiences to media intrusion. [After all, this is not a legal treatise.] The leading case involving the rights of the “captives” was decided in 1952. The District of Columbia Public Utilities Commission began to pipe in commercial radio on a publicly funded commuter streetcars in Washington D.C. A regular passenger complained, alleging that the intrusive radio broadcasts infringed his Fifth Amendment “liberty” without due process of law. Justice Harold Burton, speaking for the majority, ruled:
This position wrongly assumes that the Fifth Amendment secures to each passenger on a public vehicle regulated by the Federal Government a right of privacy substantially equal to the privacy to which he is entitled in his own home. However complete his right of privacy may be at home, it is substantially limited by the rights of others when its possessor travels on a public thoroughfare or rides in a public conveyance.”
The “rights of others” he referred to were the rights of others to listen to the radio programs. The Public Utilities Commission had made a finding that the radio broadcasts would benefit the public. Moreover, the Court found that the passengers had given their tacit consent to be subjected to the broadcasts by choosing to ride on the streetcars.
Justices Frankfurter and Douglas saw the matter differently. Justice Felix Frankfurter was so incensed by being subjected to programs he did not choose that he recused himself from the case because, as he wrote: “My feelings are so strongly engaged as a victim of the practice in controversy that I had better not participate in judicial judgment upon it.” Note that he perceived himself as a “victim” of the practice.
Justice William O. Douglas scathingly dissented from the majority position. His dissent was eloquent, but (as is somewhat typical of his opinions) not well grounded in constitutional language. He reasoned that the “liberty” protected by the Fifth Amendment included a right to “privacy,” a word that does not appear in the Constitution. He pointed out:
The government may use the radio (or television) on public vehicles for many purposes. Today, it may use it for a cultural end. Tomorrow, it may use it for political purposes. So far as the right of privacy is concerned, the purpose makes no difference. The music selected by one bureaucrat may be as offensive to some as it is soothing to others. The news commentator chosen to report on the events of the day may give overtones to the news that please the bureau head, but which rile the streetcar captive audience. The political philosophy which one radio speaker exudes may be thought by the official who makes up the streetcar programs to be best for the welfare of the people. But the man who listens to it on his way to work in the morning and on his way home at night may think it marks the destruction of the Republic.”
He further reasoned, “One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes . . . But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen.” Public Utilities Comm’n. v. Pollak [343 U.S. 451 (1952)] .
Although Justice Douglas did not establish a right of privacy in this case, the concept would come to fruition a decade later in the case of Griswold v. Connecticut, where the Court struck down a state statute that prohibited the dissemination of contraception devices.
An important aspect of the Pollak case is that even if the plaintiff had been successful in establishing a Fifth Amendment right of “privacy,” that right would have been protected only against governmental intrusion. The Public Utilities Commission was deemed to be an instrumentality of the federal government, hence covered by the Fifth Amendment. The case could not have established a right to freedom from intrusion from private parties.
Captive audience issues were raised in a different context in an earlier case, Kovacs v. Cooper, 336 U.S. 77 (1949). There the Supreme Court ruled against a different type of captive-audience media: the use of a sound truck to spread “loud and raucous” audio content. In this case, the court affirmed the constitutionality of a city ordinance against that medium because, unlike print media, it made it impossible for people to choose whether or not they consumed it. In other words, unlike the passengers on the streetcars, the recipients of the audio content weren’t even given the opportunity to provide their tacit consent.
The unwilling listener is not like the passer-by who may be offered a pamphlet in the street but cannot be made to take it,” the Court said in its decision. “In his home or on the street, he is practically helpless to escape this interference with his privacy by loudspeakers except through the protection of the municipality.”
Nor, said the Court, is such a restriction an infringement on free speech, because the restriction wasn’t on content but rather the mode of transmission:
We cannot believe that rights of free speech compel a municipality to allow such mechanical voice amplification on any of its streets. . . . It is an extravagant extension of due process to say that, because of it, a city cannot forbid talking on the streets through a loudspeaker in a loud and raucous tone. . . . Opportunity to gain the public’s ears by objectionably amplified sound on the streets is no more assured by the right of free speech than is the unlimited opportunity to address gatherings on the streets. The preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself.”
The procedural context of this case was quite different from that of the Pollak case. Here, the Court upheld the power of a municipality to outlaw the expression of opinions through loud speakers. There seems no reason to think the Court would not have allowed the DC Public Utilities Commission to do the same in the Pollak case. The text of this decision, which looks at a whole range of captive-audience issues, is reproduced in its entirety in the appendices.
Looking at the two cases together, the good news is that the government has the power to regulate the form information dissemination is to take. Thus, it can protect us from private intrusions on our privacy without infringing on the intruders’ First Amendment right of free speech. The bad news is that we are dependent on the government to erect protections against intrusions of privacy. We have no independent constitutional right to “liberty” that extends its protection to private intrusions on our privacy; moreover, our “liberty” is somewhat limited against governmental intrusion. (How these precedents will mesh with the expanded notion of privacy that was established in Griswold for private sexual behavior remains to be seen.) And certainly we must ask ourselves the questions posed by the eminent legal scholar Charles Black:
What are the freedoms, franchises, autonomies, integrities, the diminishment of which cheapens the worth of our citizenship and our humanity?” Secondly, since the forbidding of deprivation must really forbid that which really deprives: “What actions make unavailable our enjoyment of freedom?” And thirdly, given the multiform, complex, and novel interventions of government in affairs: “What relations of sponsorship between government and the ‘private’ encroacher on freedom, ought to be looked on as amounting to a wrongful incidence on individual man, of the power of the Entirety?” Charles L. Black, Jr., “The Plight of the Captive Auditor,” Columbia Law Review, 166 (1953)
Freedman’s conclusion does not seem unreasonable:
Really, the only effective rule for accommodating people of different needs and sensitivity is common courtesy borne out of empathy. [He delineates specific actions that can be taken to show respect for the noise sensitivity of others.] There has been a rash of articles in the major media in the last couple of years, many coming in the wake of disturbing acts of random violence, suggesting that empathy is on the wane. That’s for others to decide, but in a world in which we can’t take for granted courteous use of highly intrusive media, it’s at least worth advocating for the appropriate use of consumer advisories.”
Lest it sound insignificant, Charles Black put the matter into perspective:
I think this practice raises issues of high principle. I say this at the start because the toughest obstacle in dealing with the subject in a vein of earnestness is the often-encountered feeling that the whole matter is rather trivial–a bit of a fuss about nothing. I suggest that this feeling, where present, may be in its origin associative rather than logical–that it fallaciously evaluates the interests invaded by forced listening in terms of the incontrovertible triviality and trashiness of much of the stuff the captive audience has to listen to. To drag this association into the open is to rob it of its force. Subjecting a man, willy-nilly and day after day, to intellectual forced-feeding on trivial fare is not itself a trivial matter; to insist, by the effective gesture of coercion, that a man’s right to dispose of his own faculties stops short of the interest of another in forcing him to endure paid-up banality, is not itself banal, but rather a sinister symbol of relative weighting of the independence of the mind and the lust to make a buck.”
Freedman’s concerns are real and legitimate. However, we would be much more concerned about audio intrusion than visual intrusion because it is less avoidable. [In fact, we note the somewhat humorous fact that music automatically begins to play when you access the page featuring this book on the publishers’ website!] We would point out that one’s personal space is more likely to be violated by loud cell phone users or just loud fellow passengers sitting directly behind you in a plane or on a train than by intrusive captive audience advertising. And for such occasions, Freedman’s plea for “common courtesy” is well taken.
You can learn more on this topic at the author’s website (where no music plays, thankfully), here.