19
Implicit in the determination of the availability of signaling mechanisms is the
assumption of reasonable expectation of intrusion. Indeed, as one court observed:
When a person walks into a shop or store, he has already decided to give his attention to
the proprietor’s business and expects or wants someone to engage him. It is apparent that he has
some interest in the product or services offered and has given up a degree of his privacy to discuss
them. This is not true of the person on the street, and the sales technique employed in selling to
pedestrians are different from those in shops and other settings. (Waikiki Small Bus. Ass’n v.
Anderson
25
, p.12)
For our purposes, we could distinguish between two types of signaling
mechanisms regulating communicative interactions. Affirmative mechanisms of
signaling, or opt-in procedures, are those that prevent communication before taking
place; in contrast, opt-out procedures are those that remove the listener from an already
existing communicative situation. Early courts have recognize the importance of opt-in
mechanisms:
Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program content. To say that one may avoid further
offense by turning off the radio when he hears indecent language is like saying that the remedy for
an assault is to run away after the first blow. One may hang up on an indecent phone call, but that
option does not give the caller a constitutional immunity or avoid a harm that has already taken
place. (FCC v. Pacifica, op.cit., pp.748-9)
Later courts, however, have relied almost entirely on determining whether
available mechanisms of opting-out of communicative situations exist. Should opt-out
mechanisms be unavailable, the audience could rightfully make a claim of captivity:
An ADAD does not offer the recipient the option of cutting off the calls; it does not offer
householders a choice of whether to respond to the speaker or not. The ADAD recipient may hang
up as soon as the message starts, but has no opportunity to tell the machine that he does not want it
to call again, and may be obliged, against his will, to respond over and over to the same unwanted
caller. (Van Bergen v. Minnesota
26
)
In contrast, when opt-out mechanisms were available, the courts have upheld the
right to communicate of the speaker:
25
U.S. Dist. Lexis 16714, p.12
26
59 F.3d 1541 (1995)
Convention