Opt in, opt out

The opt-in/opt-out question is an important, but infrequently discussed, aspect of First Amendment doctrine. Broadly speaking, how should the First Amendment handle people who want to take themselves out of the expressive marketplace? Two main groups may want to do this. One is unwilling speakers, those who do not want to speak or to support speech, exemplified by the objecting nonmember dues payers in Knox. A second group is unwilling listeners, those who do not want to listen or see someone else's expression.

As to listeners, the general rule has been opt-out. The burden is on the listener to avoid objectionable speech. This is reflected in the rule against hecklers' vetoes and the command of Cohen that those who want to avoid an objectionable message must "avert their eyes." It also explains Lamont v. Postmaster General, where the Court invalidated a postal regulation requiring the seizure of certain mail unless the recipient affirmatively requests that the mail be sent to him. The onus was on the unwilling recipient to block the mail, which also protects the willing listener from having to affirmatively declare to the government that he wants to receive communist propaganda. Finally, it also explains why the FCC imposed a do-not-call list to limit telemarketing, putting the burden on the callee to stop the calls. Protecting unwilling listeners from offense or annoyance (as opposed to genuine harm) will rarely be a sufficient government interest to uphold a restriction on speech; hence the line between a cross burned as a threat and one burned as part of a broader public statement.

There are examples in the other direction. Most notable are abortion-facility-protest cases, under which protesters can be prohibited from approaching or communicating with patients unless invited. But this typically involves face-to-face speech, which receives less protection. There is the so-called captive-audience doctrine, but again relatively limited. And the Court rejected opt-out in favor of opt-in as to public libraries' use of internet filters.

So the jurisprudential trend places the onus on the unwilling listener to avoid unwanted speech in favor of allowing the willing speaker greater freedom. And the opt-out default generally makes sense here. A willing speaker has a greater right than an unwilling listener, at least where the speaker is speaking to the public and not to the listener alone. There is no way that someone addressing a mass audience can get the permission of the entire audience, so administrative simplicity favors putting the burden there. This also is consistent with the First Amendment's preference for "more speech," which we get both by reducing the cost and burden on a speaker to produce and disseminate his speech and by ensuring a wider possible audience.

So what about unwilling speakers/funders, as in Knox? Here, we have a willing speaker (the union) pitted against unwilling speakers (nonmember dues payers) who have a right not to speak, including a right not to have to fund someone else's speech. If an opt-out is enough to protect an unwilling listener, should it be sufficient to protect an unwilling speaker?

The majority in Knox viewed the unwilling speaker's rights as largely trumping the willing speaker's, so it felt comfortable placing the entire burden on the latter. The likely reduction in "more speech" that comes with an opt-in was justified by the need to protect the unwilling speaker from ever having his money used for objectionable political purposes, even for a brief time and even if he ultimately will get it back. This is a very broad understanding of compelled speech; even the momentary use of one's money for objectionable speech violates the First Amendment. Moreover,  the Court was implicitly saying that the administrative burden on the willing speaker is not so much greater with an opt-in than an opt-out; the union is obligated to provide (and update) notice in either event, so the nature of the notice was irrelevant.

Is this the proper balance? If an opt-out is appropriate as to unwilling listeners, there may be a benefit to using the same standard for all unwilling speech actors, so we have some consistency. Moreover, I think the Court downplayed too much the loss of speech and the burden on the union from opt-in, while overplaying the burden on the objectng funder from a temporary payment. The Court recognized the union's rights (cleverly citing Citizens United for the proposition), but then seemed to minimize the effects of an opt-in command on those rights. The goal of "more speech" seemed to fall by the wayside.