Constitution and the captive audience doctrine are twins nourished from a rich tradition which treasures individual freedoms, participatory democracy, and the free exchange and debate of ideas. But there is also tension here as the captive audience doctrine quells the brash aspirations of its ebullient mirror image. One concern with the captive audience doctrine is its potential for quashing unpopular views, minority expression and dissent. While the application of the captive audience doctrine is usually content-neutral such as in a law which prohibits residential picketing it is usually only invoked because someone finds the content of the message to be offensive or hurtful, though not amounting to hate speech.
Consider, for example, how curtailed the right to free speech might become if people were given expansive privacy rights in public:.
Strauss, at Another issue which has arisen is the weight individual privacy rights should receive when assessing the limits of free speech. While the U. Yet almost every decision involving the application of the captive audience doctrine has required the courts to weigh privacy with the right to free speech and in many of the cases discussed in this article, the right to privacy has been given a preferred weighting.
As several First Amendment scholars have noted, granting the concept of individual privacy similar stature as that given to the right to free speech contorts the plain reading of the U. Constitution and allows the court to curtail the free speech rights guaranteed by the Free Speech Clause to competing interests.
Flynn, starting at At first blush, the protection afforded by the Charter to expressive activity such as peaceful protest in public space seems impervious to challenge. However, we suggest that the section 2 b Charter right is not as expansive as articulated by Justice Lamer and that the captive audience doctrine has already been applied in Canadian law at the threshold stage to determine whether the expressive activity should be protected by section 2 b of the Charter thereby avoiding the need to proceed to a section 1 analysis.
In the case of Committee for the Commonwealth of Canada v Canada [] 1 SCR , CarswellNat , the Supreme Court of Canada accepted that individuals have a right to engage in expressive activity protected by section 2 b of the Charter on government-owned property but only if the form of expression they use is compatible with the principal function or intended purpose of that place.
To answer this question, the following factors should be considered:. In essence, expressive activity carried out on government-owned property to which the public is ordinarily entitled to access and use would likely engage Charter protection if the primary function of that space is compatible with free expression and if expressive activity in such a place serves the values underlying the free speech guarantee afforded by section 2 b.
In contrast, expressive activity undertaken on government-owned property which has a private use aspect to it or is a place of official business would likely not attract Charter protection because of its disruptive and negative impact on the orderly conduct of business being engaged in.
At paragraphs 75 to 77 of their judgment, Chief Justice McLachlin and Justice Deschamps discussed how to consider what function a public place might have:. In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom.
As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected.
Is the space in fact essentially private, despite being government-owned, or is it public? Is the function of the space — the activity going on there — compatible with open public expression? Or is the activity one that requires privacy and limited access? Or would it hamper the activity? Many government functions, from cabinet meetings to minor clerical functions, require privacy. To extend a right of free expression to such venues might well undermine democracy and efficient governance.
The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote. Most cases will be resolved on the basis of historical or actual function. However, we cannot discount the possibility that other factors may be relevant. Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee.
The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant. In setting out their test, Chief Justice McLachlin and Justice Deschamps were aware of the difficult balance in assessing the scope of the section 2 b Charter right at the threshold stage of the analysis and held at paragraph 79 of their decision:.
Our jurisprudence requires broad protection at the s. The proposed test reflects this. However, it also reflects the reality that some places must remain outside the protected sphere of section 2 b.
People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under section 1. Colorado , ; Frisby v. Schultz , Such justified restrictions are commonly applied in cases such as door to door soliciting, billboards, telephone soliciting, mail, public address systems, and residential picketing.
This is an interesting counterpoint to the treatment of captive listeners during union organizing, demonstrating that employers are among the most constitutionally privileged speakers in America.
California , Courts have tended to put greater onus on audiences to avoid unwanted speech in a public forum compared to private homes Cohen v. Commentators identify several values underlying this doctrine: individual autonomy, the right to repose, and the right to be free of offensive communications.
Regarding the final justification, Canadian law has firmly rejected restricting speech simply because of its offensive nature see, e. It is the value of individual autonomy explanation that has greatest resonance with the question of captive audiences and speech rights in the workplace, and is the factor this article focuses on.
Several commentators identify an interest in autonomy though differently articulated as underlying the Captive Audience doctrine Taylor, ; Strauss, ; Haiman, Taylor defines individual autonomy as freedom of thought and personal autonomy More simply, Haiman characterizes individual autonomy not as autonomy in decision-making, but simply autonomy of hearing such that there is a right to decide whether to receive speech Haiman, Each of these articulations of the justification closely matches explanations of values underlying free expression under the Canadian Charter.
Taylor explains the rationale behind the necessary link between autonomy and protection for captive audiences:. If freedom of thought and personal autonomy of the listener require that the government refrain from suppressing an idea or communication, the same principles forbid the government from forcing an unwilling listener to receive a communication.
Though the Captive Audience doctrine has been identified as rooted in the American conception of privacy Strauss, other commentators contend that, rather than an emanation of the right to privacy and a form of restriction on the First Amendment, the American Captive Audience doctrine is better regarded as a corollary to the First Amendment Taylor, , or that it is actually a form of time, place and manner restriction on the First Amendment Nauman, Certainly a number of cases have limited speech to captive audiences on the basis that it is a justifiable time, place and manner restriction of First Amendment protected speech rather than on the basis of the Captive Audience doctrine and its intrusion test see, e.
Then, the limits and scope of captive audience protection would be determined by a balancing of competing interests. Taylor suggests that the captive audience doctrine, or the right not to be spoken to, is a corollary of the constitutional protection of free speech, rather than an exception to it Taylor, , It offers some cautions about framing questions of competing rights, and about accepting simple solutions to the problem of captive communications.
It also shows possible ways forward to develop a more holistic definition of free expression and its limits, through careful selection of underlying values, a balanced understanding of the expression right and through the incorporation of concepts of captivity and forced listening.
One key lesson of the American experience is the importance of how the question of restrictions on employer communications is framed. This is a contest that workers rights cannot—and have not—won, under the American system. We see this, for example, in how the Clark Bros. As noted above, Canadian constitutional law provides more scope for limiting expression, and thus protecting statutory rights, primarily because of the opportunity section 1 allows for balancing rights and interests Commonwealth , para.
And, so far, early challenges to statutory restrictions on employer communications, including the federal strict neutrality standard and prohibition on captive audience communications have been saved under section 1 Bank of Montreal , ; Cardinal , However, reliance on the section 1 saving provision is a precarious foundation for employee protection, and is subject to case-by-case decision making. It is important to recognize that concern over impinging on employer constitutional speech rights has, like the LMRA amendments, underpinned statutory extensions to employer speech rights and limitations on ULP prohibitions in at least one Canadian jurisdiction British Columbia, a: 5; b: , , Therefore, Canadian law is not immune from the problems arising from a contest of constitutional and statutory rights.
Rather than framing the question as such a contest, the American experience suggests that it is important to focus on developing a conception of free expression that is sensitive to the particular characteristics of communication in the workplace context, where the employer-speaker has uncommon power and influence over the listener-employee, and where captive audience communications are common.
Such formalistic limits are misleading, and do not address the true mischief of employer speech to a captive audience of workers. Such rules give insufficient weight to the fact that expression has both form and content; that form affects the message received by the listener; and that form and content can be difficult to separate.
They ignore the inherent pressure and emotive force of employer words, arising from the context and history of the employment relationship. This ignores the irrational effect of such communications on listeners.
A second important lesson from the American experience is the danger of placing too great reliance on the truth-seeking justification for free speech and, in particular, on the marketplace of ideas conception of this right.
Rather, it would be desirable to refocus on the other underlying values: autonomy, and democratic and social participation, both of which hold the rights and interests of listeners in greater regard. This is apparent, first, in their focus on protecting the interests of the speaker over that of the listener. The marketplace conception is particularly evident in the nature of the equal opportunity solution to employer speech at captive meetings: more speech.
There is a danger in accepting that more speech cures, as it presumes there is equality in the competing messages. The American experience also highlights the importance of considering whether and how the Charter freedom of expression might incorporate protection of captive listeners.
The Captive Audience doctrine American constitutional law has developed outside of the workplace, and the scholarly arguments about the potential for incorporating it into the First Amendment, give us some direction about how our own constitutional freedom of expression may be developed to more tightly embrace protection of listeners.
Canadian courts and labour boards have recognized some glimmer of a right not to listen, holding that section 2 b does not guarantee the speaker an audience and does not guarantee that a person can be forced to listen Committee , ; Dieleman , ; Bank of Montreal , ; RMH, paras.
However, Canadian courts and boards have not recognized that section 2 b contains freedom from forced listening analogous to the American right or that there is a true negative or corollary right to the freedom of expression, though many of these cases cite and draw reasoning from American constitutional freedom from forced listening cases.
Imagine conducting an audience analysis of people belonging to an individual congregation rather than a denomination: even there, you will most likely find a multitude of variations that involve how one was brought up, adoption of a faith system as an adult, how strictly one observes religious practices, and so on.
Yet, even with these multiple facets, religion is still a meaningful demographic lens. It can be an indicator of probable patterns in family relationships, family size, and moral attitudes. In your classroom audience alone, there will be students from a variety of academic majors. Every major has its own set of values, goals, principles, and codes of ethics. A political science student preparing for law school might seem to have little in common with a student of music therapy, for instance.
In addition, there are other group memberships that influence how audience members understand the world.
Fraternities and sororities, sports teams, campus organizations, political parties, volunteerism, and cultural communities all provide people with ways of understanding the world as it is and as we think it should be. Because public speaking audiences are very often members of one group or another, group membership is a useful and often easy to access facet of audience analysis. The more you know about the associations of your audience members, the better prepared you will be to tailor your speech to their interests, expectations, and needs.
Education is expensive, and people pursue education for many reasons. Some people seek to become educated, while others seek to earn professional credentials. Both are important motivations. If you know the education levels attained by members of your audience, you might not know their motivations, but you will know to what extent they could somehow afford the money for an education, afford the time to get an education, and survive educational demands successfully.
The kind of education is also important. For instance, an airplane mechanic undergoes a very different kind of education and training from that of an accountant or a software engineer. This means that not only the attained level of education but also the particular field is important in your understanding of your audience. People choose occupations for reasons of motivation and interest, but their occupations also influence their perceptions and their interests.
There are many misconceptions about most occupations. For instance, many people believe that teachers work an eight-hour day and have summers off. When you ask teachers, however, you might be surprised to find out that they take work home with them for evenings and weekends, and during the summer, they may teach summer school as well as taking courses in order to keep up with new developments in their fields.
If your audience includes doctors and nurses, you know that you are speaking to people with differing but important philosophies of health and illness. Learning about those occupational realities is important in avoiding wrong assumptions and stereotypes. Earlier, we mentioned psychographic information, which includes such things as values, opinions, attitudes, and beliefs. Authors Grice and Skinner present a model in which values are the basis for beliefs, attitudes, and behaviors.
Grice, G. Mastering public speaking: The handbook 7th ed. Boston, MA: Pearson. Values are the foundation of their pyramid model. Values are usually stated in the form of a word or phrase.
For example, most of us probably share the values of equality, freedom, honesty, fairness, justice, good health, and family. These values compose the principles or standards we use to judge and develop our beliefs, attitudes, and behaviors.
It is important to recognize that, while demographic information as discussed in Section 5. We also acknowledge that people inherit some values from their family upbringing, cultural influences, and life experiences.
The extent to which someone values family loyalty and obedience to parents, thrift, humility, and work may be determined by these influences more than by individual choice. By knowing about such notions ahead of time, you can address them in your speech. Audiences are likely to have two basic kinds of preexisting notions: those about the topic and those about the speaker. Many things are a great deal more complex than we realize. Media stereotypes often contribute to our oversimplifications.
In speaking to an audience that might have differing definitions, you should take care to define your terms in a clear, honest way. The voice of duty called her to the kitchen, where her cook patiently awaited her inevitable, and always painful, audience.
Top Definitions Quiz Examples captive audience. New Word List Word List. Save This Word! We could talk until we're blue in the face about this quiz on words for the color "blue," but we think you should take the quiz and find out if you're a whiz at these colorful terms.
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