9
Another high profile Supreme Court case of the period focused on the circumstances
under which the right to privacy and the right to free speech are irreconcilable, and
formulated for the first time the notion of ‘captive audience’ as the locus of that conflict.
Public Utilities Commission v. Pollak
15
, decided in 1952, involved a challenge to the
initiative of Capital Transit, a street railway company in Washington, to experiment with
‘music-as-you-go’ and advertising radio programs amplified through loudspeakers in
buses. The Supreme Court declined to rule those programs unconstitutional. However,
the dissenting opinion of Justice Douglas gave way to subsequent rulings that placed
injunctions on the right of the speakers to communicate, and affirmed the right of privacy
of the listeners. In his dissent, Justice Douglas commented that “[t]he streetcar audience
is a captive audience. It is there as a matter of necessity, not of choice”. He further added
that:
One who tunes in on an offensive program at home can turn it off or tune in another station, as he
wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants,
can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to
sit and to try not to listen … The listeners are of course in a public place; they are on streetcars
traveling to and from home. In one sense it can be said that those who ride the streetcars do so
voluntarily. Yet in a practical sense they are forced to ride, since this mode of transportation is
today essential for many thousands. Compulsion which comes from circumstances can be as real
as compulsion which comes from a command
16
.
Justice Douglas’ opinion articulates rhetorically a conception of privacy
understood as border management. Contrary to the popular assumption that captive
audience is an audience confined to a certain location, Justice Douglas ascribes
‘captivity’ to an audience’s inability to make a choice, inability that may or may not be
the result of spatial confinement. The inability of the audience to make a choice of
listening or not listening to an unwanted message raises interesting questions, later duly
15
343 U.S. 451 (1952)
16
Public Utilities Commission v. Pollak, p.469
Convention