Like the rest of the quarantined lawyers in America, the Legal Geeks have spent this pandemic diligently solving the world’s legal issues binge watching great content (in our pajamas on the couch).  Fortunately, Altered Carbon’s second season was released recently by Netflix, again ripping anti-hero Takeshi Kovacs from his peaceful hibernation on the stack shelf to battle against 300 year-old uber-wealthy Meths (short for Methuselahs).  Instead of Joel Kinnamon this time, however, season two’s Kovacs is fitted with a military-grade body (called a “sleeve” in Carbon) played by Anthony Mackie.  Mackie, like his predecessor, performs the role of disgruntled 24^th century detective in a world where consciousness can be uploaded and stored in a “stack”—prolonging life indefinitely.

Our review last season focused on the impact of “Resolution 653,” which would have allowed the U.S. government to “spin up” a murder victim’s stack in violation of their express wishes and religious rights.  Among other unique legal quandaries like tracking others’ activities through biomechanical implants and cloned imposters, this season of Altered Carbon advances yet another prescient question of law under the First Amendment:  can the government force everyone to watch and listen to its speech?

In Season 2, Episode 3, “Nightmare Alley,” Kovacs has been captured, tortured, and sentenced to execution by the leaders of Harlan’s World, his home planet located approximately eighty light-years from Earth.  Ostensibly interrupting every single inhabitant on the globe, Harlan’s leaders force a video feed onto everyone’s contact lens through their Online Network Interface (“ONI”).  Remarkably similar to the grain technology in Netflix’s other sci-fi giant Black Mirror, the citizens of Harlan’s World are actually required to view the execution on pain of losing vision altogether.  And although some of the Harlan elite bet on Kovacs’ life expectancy like a boxing match, it appears that common folk are not as enthusiastic about this intrusion on their visual liberty.While Harlan’s World is not affiliated with Earth and its ancestors did not originate in America—having been settled mostly by Japanese and Slavic laborers—ONIs on Earth still have the same capabilities. Therefore, it’s likely that the issue of forced broadcasts onto Americans’ ONIs has been resolved as implied by that feature’s omission from government speech on Earth in Season 1.  Admittedly, many reasons could exist for that omission; however, the obvious Legal Geeks Answer^TM is that compelled listening and viewing has finally been ruled unconstitutional under the First Amendment.

Although most expressive rights are jealously guarded by the First Amendment, “whether there is a ‘right’ to avoid unwelcome expression” has not yet been decided by the Supreme Court.  See Hill v. Colorado, 530 U.S. 703, 718 n.25 (2000).  But as a necessary companion to the rights to (1) free speech on government and politics, see Morse v. Frederick, 551 U.S. 393, 403-04 (2007); First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776-77 (1978); (2) freedom to listen to others’ speech, see Lamont v. Postmaster Gen., 381 U.S. 301, 308 (1965) (“It would be a barren marketplace of ideas that had only sellers and no buyers”); and (3) refrain from speaking, see Wooley v. Maynard, 430 U.S. 705, 714 (1977) (“[F]reedom of thought protected by the First Amendment … includes both the right to speak freely and the right to refrain from speaking at all.”), the right to avoid compelled listening or viewing is likely be protected under the First Amendment.  See Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, 89 B.U. L. Rev. 939 (2009).

“[T]he First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired,” Heffron v. Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981), because “no one has a right to press even ‘good’ ideas on an unwilling recipient” in America, Rowan v. U.S. Post Office, 397 U.S. 728, 738 (1970).  And although “government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas,” Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245–46, (2015), the government’s speech may still be restricted “when “the ‘captive’ audience cannot avoid [the] objectionable speech,” Consol. Edison Co. of N.Y. v. Pub. Serv. Comm’n, 447 U.S. 530, 541-42 (1980).  Such a protection is important in America because “[w]hen the government forces its arguments or information onto unwilling recipients, it can distort the proper functioning of the marketplace of ideas and undermine democratic decisionmaking by the people.”  Corbin, 89 B.U. L. Rev. at 980.

Under the “Captive Audience” doctrine, the First Amendment protects those who otherwise would be “unavoidably and unfairly coerced into listening” to speech.  See J.M. Balkin, Free Speech and Hostile Environments, 99 Colum. L. Rev. 2295, 2310-11 (1999).  Generally, the doctrine is framed in the context of one’s privacy rights and the right to avoid unwanted speech or sights appears—frequently in the abortion clinics cases and state-mandated training.  See Franklyn S. Haiman, Speech v. Privacy: Is There a Right Not to Be Spoken To?, 67 Nw. U. L. Rev. 153, 154 (1972) (“The issue of whether there is a right to be free from speech poses a sharp conflict between freedom of speech, on the one hand, and privacy, on the other.”).

In Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994), for example, the Court upheld restrictions on sound audible inside a family planning clinic.  And although abortion speech is the one area where the Supreme Court has allowed paternalism to justify viewpoint-discriminatory laws in the past, see Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 882 (1992), recent cases in the lower courts have confirmed that “the right to free speech doesn’t include the right to compel unwilling audiences to listen,” Larkins v. Moore, 2017 WL 4012334, at *5 (S.D. Cal. 2017); Planned Parenthood of Ind. & Ky., Inc. v. Comm’r, 194 F. Supp. 3d 818, 830 (S.D. Ind. 2016) (“requiring abortion … patients to listen to this information violates their First Amendment rights regarding … compelled listening”).

Placed in the context of 2400s America, the issue of whether the government can force a broadcast onto a person’s ONI-connected lens has likely been long resolved.  Without a means to avoid the broadcast—or with a government’s explicit threat like on Harlan’s World—individuals with contact lens ONIs would definitely meet the definition of a “captive audience.”  The government’s justification for such a direct intrusion into one’s psyche would have to be factual, secular, and monumental—certainly not justified for Kovacs’s trumped-up execution.  Accordingly, Harlan’s intended broadcast would violate the First Amendment rights of American citizens.  Even more fortunately, however, the Last Envoy’s luck did not run out, the unsuccessful compelled viewing of the government’s message backfired spectacularly, and Netflix should be renewing Altered Carbon for a third season any day now.

Random thoughts:

• In fairness to my plaintiffs’ side lawyer friends, there is definitely an Intentional Infliction of Emotional Distress claim lurking in the wings here
• Mackie’s version of a Kovacs seemed more stiff than Kinnamon, who played the role of disgruntled-24^th Century-hardboiled-detective-in-a-neo-noir-world a little more like Harrison Ford’s Deckard in Blade Runner
• Sleeve-tech highlight of Season 2 is in Episode 2, “Payment Deferred,” when Poe asks Kovacs for his plan: “Drink fast enough to try and override the tolerance settings” on his sleeve
• A big thanks to Prof. Corbin’s scholarship, with whom I could not agree more that “a right against compelled listening should be recognized in order to safeguard and realize fundamental free speech values”