The United States Court of Appeals for the Ninth Circuit handed down recently a free-speech decision that is raising some eyebrows and might be of interest to readers. Of particular interest, perhaps, is the fact that the majority opinion in the case, Berger v. City of Seattle , was written by Judge Diarmuid O’Scannlain, one of the nation’s most distinguished judges and the author of a fine essay in First Things on the Supreme Court’s religious-freedom doctrines.

The case involves a package of regulations enacted by the city to control speech, picketing, and other expressive activities in the downtown “Seattle Center.” “Each year,” the court reported, “the Seattle Center’s theaters, arenas, museums, exhibition halls, conference rooms, outdoor stadiums, and restaurants attract nearly ten million visitors.

The court’s opinion upheld the city’s regulations in the face of a First Amendment challenge brought by a street performer. The relevant doctrines in this area—dealing with, for example, the distinction between “content based” and “content neutral” regulations—are not especially accessible to normal people (i.e., non-lawyers), and Judge O’Scannlain’s analysis is both dense and rigorous. One particular aspect of the case, though—namely, the court’s validation of a rule against “speech activities” within thirty feet of “any captive audience”—seems troubling.

Pretty much everyone agrees that the government has more regulatory leeway when it is managing so-called “public forums”— parks and government buildings, for example—than when it is legislating generally. Still, there are good reasons to worry about the notion that the government can enforce amorphous and floating no-speech zones around people in public parks who just happen to be waiting in line. (For more along these lines, see this post, by free-speech expert Prof. Eugene Volokh, here .)

Even assuming that so-called “captive audiences” ought to have veto power over free speech, in public places, which they find annoying, it seems quite a stretch to say that a Seattle resident who elects to go see a movie, or sit down for a cup of coffee, is really “captive.”

Free speech, as we all know, has costs; its exercise can be annoying, even harmful. Reasonable people can and do believe that in some contexts—the home, or perhaps in a crowded subway car—captive-audience concerns might justify greater regulation of unwanted speech. But Seattle’s law seems to reach too far, and its validation could prompt other jurisdictions to find other creative ways to push unpopular views out of the public square.

[ Edited to strikethrough “and parks,” a misleading phrase]

Articles by Richard W. Garnett

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