LISTENERS' RIGHTS

The constitutional commitment to freedom of speech is in part based on the simple idea that people have a right to say what they want to say without government interference. That is, freedom of speech protects the speaker. Yet the first amendment themes of self-expression and speaker liberty have been recognized only sporadically in Supreme Court opinions. The more prevalent themes in First Amendment jurisprudence have been audience-oriented, albeit implicitly.

One classic justification of freedom of speech has been based on optimistic assessments about the capacity of the marketplace of ideas to distinguish between the false and the true. The emphasis of this justification is not that speakers have a right to say what they want to say, but that speakers must be free to speak so that the society can find truth, that is, so that listeners can hear and evaluate what is said. Listeners' rights are also strongly implicated by the notion that freedom of speech reflects a commitment to democratic self-government. If citizens are to decide how to respond to public issues, they must hear what others have to say. The listeners' rights emphasis of the self-government perspective is best illustrated by alexander meiklejohn's observation, approvingly cited by the Supreme Court in columbia broadcasting system v. democratic national committee (1981): "What is essential is not that everyone shall speak, but that everything worth saying shall be said."

For many years, listeners' rights were protected with nary a listener before the Court. In routine cases, the aggrieved speaker invoked the rights of the listeners. In Thomas v. Collins (1945), for example, the Court invalidated an attempted prior restraint at the behest of the speaker, in part because of the rights of others "to hear what he had to say."

Ultimately, listeners were permitted to invoke their own rights without any speakers before the Court. In virginia state board of pharmacy v. virginia citizens consumer council (1976), for example, consumers challenged a statute that prohibited pharmacists from advertising the prices of prescription drugs. No pharmacist was before the Court, only potential members of the audience for drug price advertising. The Court recognized the rights of "listener" plaintiffs to sue on their own behalf, observing that the First Amendment gives protection "to the communication, to its source and its recipients both."

lamont v. postmaster general (1965) stands for an even broader principle. There the Court struck down a statute directing the postmaster general not to deliver certain "communist political propaganda" unless the addressee, upon notification, requested its delivery. The Court found this to be "an unconstitutional abridgment of the addressee's rights." Many of the potential senders of this "propaganda" were aliens outside the country who had no First Amendment rights of their own. The Court made this distinction explicit in Kleindeist v. Mandel (1972). Thus recipients of messages have a First Amendment right to hear that does not depend upon corresponding rights in the speaker. Such rights may extend to situations where the speaker is unwilling to speak; they are then usually referred to as the right to know. Onthe other hand, an unwilling recipient of a message may have a right not to hear, deriving from notions such as a right of privacy.

Steven Shiffrin
(1986)

Bibliography

Bevier, Lillian 1980 An Informed Public, an Informing Press: The Search for a Constitutional Principle. Stanford Law Review 68:482–517.

Emerson, Thomas I. 1976 Legal Foundations of the Right to Know. Washington University Law Quarterly 1976:1–24.