Document Type

Article

Publication

University of Colorado Law Review

Year

2019

Abstract

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have less information or power than speakers. This “listener-centered” approach understands the First Amendment to permit the government to regulate the speech of comparatively knowledgeable or powerful speakers when that expression frustrates their listeners’ autonomy, enlightenment, and self-governance interests – values at the heart of the Free Speech Clause. In this essay, I list a number of ways in which speakers sometimes enjoy advantages of information or power (or both) over their listeners, thus enhancing their ability to deceive or coerce those listeners. I then describe how law can address these inequalities. Law can forbid comparatively knowledgeable or powerful speakers from lying to their listeners, it can require those speakers to make truthful disclosures to their listeners, and it can bar those speakers (as well as the government) from coercing those listeners. As we'll see, First Amendment law sometimes takes a listener-centered approach; this has been the case in commercial and professional speech settings. I suggest that we should extend a listener-centered approach to other communicative relationships of inequality: employers’ speech to workers about the terms and conditions of employment, and service providers’ speech to women seeking reproductive health care. Why put listeners first in environments of expressive inequality? When speakers enjoy certain advantages of information or power over their listeners, they can mislead or muscle their listeners in ways that strike us as unfair and sometimes dangerous. When we take seriously the First Amendment interests of listeners who suffer disadvantages of information or power in these relationships, we improve the quality of the communicative discourse. We also recognize listeners as ends in themselves--rather than as mere means through which speakers seek to achieve their own ends.

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