1. R. Shiner, Freedom of Commercial Expression (2003), at 192–220.

2. Id. at 178–191; Ouyang, Guangwei & Shiner, Roger A., Organizations and Agency, 1 Legal Theory 283–310 (1995)CrossRefGoogle Scholar.

3. Shiner, supra note 1, at 203–220. Shiner also explains how the appeal to hearers’ rights ignores the fact that many governmental regulations on commercial expression are intended to protect individuals who do not want to receive commercial expression. But we can account for this defect in the defense of commercial expression without rejecting the general idea of willing hearers’ rights to receive expression.

4. L. Alexander, Is There a Right of Freedom of Expression (2005), at 7, 193. According to Alexander, “There are many good reasons for governments not to regulate expression for the purpose of affecting messages, but that freedom of expression is a human right is not one of them.”

5. L.H. Tribe, American Constitutional Law (2d ed., 1988), at 791–792.

6. Alexander, supra note 4, at 20–37.

7. Shiner, supra note 1, at 16–19. For other criticisms of an autonomy-based right to freedom of expression, see F. Schauer, Free Speech: A Philosophical Enquiry (1982); and Brison, S.J., The Autonomy Defense of Free Speech, 108 Ethics 312–339 (1998)CrossRefGoogle Scholar.

8. Alexander, supra note 4, at 9 n.14; Shiner, supra note 1, at 17.

9. Shiner, supra note 1, at 124–125.

10. M. Dan-Cohen, Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society (1986), ch. 4.

11. Shiner, supra note 1, at 167, quoting C.E. Baker, Human Liberty and Freedom of Speech (1989), at 205.

12. J. Rawls, A Theory of Justice (1972), at ch. 64, 65, 82, 83; Rawls, J., Reply to Alexander and Musgrave in Collected Papers/John Rawls 232–253 (Freeman, Samuel ed., 1999)Google Scholar; W. Kymlicka, Liberalism, Community and Culture (1989), at ch. 1–3; J. Raz, The Morality of Freeedom (1986), at ch. 7, 8, 10, 14, 15; Raz, J, Free Expression and Personal Identification, 11 Oxford J. Legal Stud. 303–324 (1991)CrossRefGoogle Scholar. I do not mean to suggest that there are no important differences between these authors on the issue of freedom of expression. However, I think that Shiner's appeal to autonomy captures a common core in their arguments.

13. Shiner, supra note 1, at 8.

14. Shiner, rightly I think, rejects another line of argument put forward by Baker. Baker accepts that in principle, commercial expression can make appropriate contributions to individual autonomy. Unlike Shiner, his objection to commercial expression is not content-based. Instead, Baker argues that commercial expression is typically “unfree,” as what people say in the context of commercial expression is determined by external market standards. Shiner responds that while external conditions do “determine” what it is economically rational for actors to do, this sense of determination cannot be sufficient to undermine freedom and autonomy. Id. at 14–15; Baker, supra note 11, ch. 9.

15. Shiner, supra note 1, chs. 11–12.

16. Id. At 198–199.

17. Id. at 199. Shiner recognizes that an analogy with tort may seem odd, since constitutional rights are typically universal ones (being held by all citizens and sometimes extending to noncitizens as well). But UDP does not deny that all natural persons have a right to freedom of expression. Instead, UDP is meant to avoid unnecessary duplication of expression rights.

18. Id.

19. Brennan, S., Thresholds for Rights, 33 S.J. Phil. 143–168 (1995)CrossRefGoogle Scholar; Brennan, S., How Is the Strength of a Right Determined?: Assessing the Harm View, 32 Am. Phil. Q. 383–393 (1995)Google Scholar.

20. There are some cases where the treatment of other persons does not affect the exercise of my own liberties and opportunities but still determines whether my rights are infringed. We cannot know whether a right to equality of treatment is infringed without discerning how I am treated relative to other persons. If I am prevented from listening to Bob, but all other persons are placed under the same constraint (which the state justifies to them in the same fashion that it justifies the restriction for me), then my right to equality of treatment is not infringed. Here a purely comparative relation to other persons determines whether my right is infringed.

21. Shiner, supra note 1, at 200; Lamont v. Postmaster General of the U.S., 381 U.S. 301 (1965).

22. Shiner, supra note 1, at 200.

23. Id.

24. Id.

25. Id. at 201.

26. Id.

27. Of course, if we were making an appeal to equality of treatment, there would be a relevant difference between the two scenarios. The fact that the restrictions are global in (1) precludes hearers from making an equality claim in that scenario. But hearers in (3) might have an additional equality-based claim because of the way in which they are singled out by its legal restrictions.

28. Lamont, supra note 21.

29. Kleindienst v. Mandel, 408 U.S. 753 (1972).

30. Alexander, supra note 4, at 8.

31. Of course, we might struggle to account for the reader's right as a derivative one. Perhaps allowing readers to read whatever books they choose would provide the most effective protection for current and future authors. We might imagine a hostile government that interferes with authors’ rights by demanding that readers verify the living status of controversial authors. Empowering readers to read what they please prevents such tactics. But that is rather convoluted. Surely the reader suffers a wrongful loss to her own autonomy if she is prevented from exploring the thoughts or ideas provided in the book.

32. The right to freedom of association does not protect every activity that a voluntary association might choose to pursue. Rather it holds that government should not seek to deter or prevent voluntary associations from pursuing legitimate social purposes or activities. Presumably we must look elsewhere to determine whether a given activity or purpose is a legitimate one. While freedom of association is often described as a distinct right, there is some disagreement as to whether it is truly distinct from other liberty rights such as freedom of expression and freedom of religion. See Norman, K.Freedom of Association (Section 2(d)), in Canadian Charter of Rights and Freedoms 327–358 (Beaudoin, G.-A. & Mendes, E. eds., 4th ed. 2005)Google Scholar.

33. Again, I do not mean to suggest that all hierarchical organizations will enjoy full protection under freedom of association. Organizations that work to impede individuals’ development of what Rawls calls the moral powers pose serious problems for a liberal society, especially where such activities interfere with proper civic education for children. For an extended discussion of the difficulties in assessing the appropriate kinds of protection of freedom of association within illiberal groups, see the papers in Freedom of Association (A. Gutmann ed., 1998).

34. As Amy Gutmann points out, freedom of association is often a necessary precondition for effective exercise of freedom of expression, as only the very rich tend to enjoy the ability to reach large audiences without membership in an organization that provides a forum for expression. Gutmann, A., Freedom of Association: An Introductory Essay, in Freedom of Association 3–32 (Gutmann, A. ed., 1998)Google Scholar. Note that even if the dead speaker is no longer wronged by the banning of his book, his prior decision to publish it was still needed to engage an enduring OA hearers’ right to access the book. Suppose that the author had decided not to publish the book, leaving its fate to the discretion of family members. If the family chose not to share the book, there would be no hearers’ right to access it. The dead author may not be wronged by the suppression of his book, but hearers are not wronged by interference with access to the book if the author never intended for them to see it. This point comes up again in Section II.A. Here again, freedom of expression is close to freedom of association.

35. Shiner also seeks to limit Lamont's relevance by noting that it concerns the value of political expression. But, as I argue in Subsection C, this is not relevant to the question of whether hearers have a general OA right to receive expression that tracks speakers’ OA rights to express. Political expression may warrant great protection while commercial expression merits none, but the preeminence of political expression's content cannot be used to explain an asymmetry between speakers and hearers. Shiner, supra note 1, at 204–205.

36. Baker, supra note 11, at 51.

37. But in the Canadian context at least, complainants need not claim that their own rights have been infringed in order to establish that they have been adversely affected by a law. A person who has suffered criminal sanction under law X may launch a constitutional challenge to X based on the constitutional rights of other persons. Consider this with respect to the Oppol variations. Shiner maintains that in many cases, legal restrictions placed on hearers that are designed to prevent them from a receiving a speaker's message must still be regarded as infringements of the speaker's expression rights. Even so, if the legal restrictions carried the threat of criminal penalty against Oppol's would-be hearers, Canadian law would still afford hearers standing to challenge these restrictions regardless of whether their own expression rights were at issue.

Moreover, the Supreme Court of Canada does not completely reject public-interest-based constitutional challenges from private citizens. While the Court exercises discretion in this regard, it has already chosen to extend public-interest standing to hearers who wish to contest legal restrictions on freedom of expression. So it is not clear that recognition of hearers’ rights would do much to expand hearers’ abilities to challenge legal restrictions on freedom of expression. In this context, hearers’ rights might be considered unnecessary, but their recognition does not come at any additional cost either. See Gibson, D., Enforcement of the Canadian Charter of Rights and Freedoms, in Canadian Charter of Rights and Freedoms 1323–1398 (Beaudoin, G. A. & Mendes, E. eds., 4th ed. 2005)Google Scholar, at 1329; R. v. Big M Drug Mart, [1985] S.C.R. 295 (Can.).

38. Vasquez et al. v. Housing Auth. of the City of El Paso, 271 F.3d 198 (5th Cir. 2001).

39. Shiner, supra note 1, at 204.

40. Consider a somewhat different example. A speaker is driving around using a loudspeaker to make loud and obnoxious political statements from his car. A court enjoins him from doing so on the basis of time, manner, and place considerations, and the speaker himself declines to challenge this restriction. Should a hearer who enjoys the speaker's actions be afforded standing to challenge this restriction? The answer, I think, is no. Because the restriction concerns a particular speaker who is unwilling to contest the restriction, the hearer cannot claim to have been deprived of a connection with a willing speaker. On the other hand, if the restrictions are statutory, they speak to possible connections with future speakers. Here I see no problem with affording standing to hearers who wish to challenge the relevant statutes. This example was suggested to me by Roger Shiner.

41. Gibson, supra note 37, at 1373–1384.

42. I do not mean to rule out a reflective equilibrium approach that would sometimes allow us to argue that a right should not be recognized because its recognition would entail an excessive remedy. But in general we should first ask whose rights have been violated and then turn to the question of appropriate remedies for those violations.

43. Little Sisters Book and Art Emporium v. Canada (Minister of Justice), [2000] 2 S.C.R. 1120, 2000 SCC 69 (Can.). The Little Sisters bookstore catered to the gay and lesbian community of Vancouver, importing the vast bulk of its erotic material from the United States. On numerous occasions, Canada Customs agents wrongly delayed, confiscated, and prohibited Little Sisters’ imports from the United States. The trial judge found that Canada Customs agents had engaged in the “systematic targeting” of the Little Sisters store. By the time the case reached the Supreme Court of Canada, the complainants had abandoned the pursuit of other remedies, seeking only to invalidate the statutes that provided Canada Customs with the authority to make obscenity determinations. The majority of the Court found only one defect in the statutory scheme, seeing a declaratory remedy against Customs agents—who had misapplied the Court's guidelines regarding obscenity—as an otherwise sufficient remedy. However, it is arguable that the statutory scheme itself provided room for the abuse suffered by the complainants. Moreover, it is not obvious why merely removing the relevant statutory scheme should be regarded as a fully just remedy for persons whose rights have been repeatedly violated over an extended period of time.

44. Alexander, supra note 4, at 8.

45. Id. at 8–9.

46. Id. at 9, n.14.

47. Id.

48. Perhaps A should still have access to this diary, but A's claim is not the free-expression right that he would enjoy if S had chosen to publish the diary.

49. Baker, supra note 11, at 53. Baker says that the protester might protest “without any expectation that her speech will affect the continuance of war or even that it will successfully communicate anything to people in power. Rather, she participates and chants to define herself publicly, partly to define herself to herself, as in opposition to the war.” Setting her public identity seems to require that at least some persons hear and recognize her message. However, the speaker might derive some satisfaction or sense of self-realization even if other persons manage to ignore her completely. It might be the case that protesting in front of other persons, showing a willingness to be publicly associated with antiwar views, helps her to confirm for herself the genuine character of her commitments, even if, as it turns out, no one takes note of her protest.

50. Alexander, supra note 4, at 9.

51. Id. at 9–10.

52. Id. at 10.

53. Id.

54. Id. at 10–11, 36.

55. I do not mean to suggest that self-expression in the narrow sense can provide a full account of the value of artistic expression. As Jed Rubenfeld notes, this would be an excessively “narcissistic” view of freedom of expression. However, focusing only on what readers or receivers derive from authors also provides a distorted picture of freedom of expression. Rubenfeld, Jed, The Freedom of Imagination: Copyright's Constitutionality, 112 Yale L.J. 1–60, 33–34 (2002)CrossRefGoogle Scholar.

56. Baker, supra note 11, at 51.

57. J. S. Mill, On Liberty (C. V. Shields ed., 1985), at ch. 1.

58. Baker, supra note 11, at 54.

59. Alexander, supra note 4, at 36–37.

60. Id. at 127.

61. Tribe, supra note 5, at 791–792; Alexander, supra note 4, at 13–14.

62. Alexander, supra note 4, at ch. 2–7

63. Id. at 14–16. According to Alexander, the Court deploys essentially the same test in dealing with both kinds of cases. The laws interfering with expression must serve a significant governmental objective, be narrowly tailored (though the government need not find the single least intrusive means of pursuing its objective), and leave adequate alternatives for expression of the relevant messages.

64. Id. at 16.

65. Id.

66. Id. at 16–17.

67. Id. at 17.

68. Id. at 27. Invoking the relevance of this information seems to take Alexander away from a strict reading of (4), which holds that freedom of expression is implicated whenever government interferes with activities that are intended to convey messages. But this extension makes sense if we think that hearers’ rights to receive information are the only basic rights within freedom of expression.

69. Id. at 24–30.

70. Id. at 9.

71. Scanlon, Thomas, A Theory of Freedom of Expression, 1 Phil. & Pub. Aff. 204–226 (1972)Google Scholar; Strauss, David A., Persuasion, Autonomy and Freedom of Expression, 91 Colum. L. Rev. 334–371 (1991)CrossRefGoogle Scholar. Alexander discusses and rejects both lines of argument. Alexander, supra note 4, at 68–70.

72. Baker, supra note 11, at ch. 3.

73. Schauer, supra note 7, at 51–52.

74. Alexander, supra note 4, at 34.

75. We might also ask why, on Alexander's terms, freedom of expression precludes the use of coercion against speakers who refuse to provide information. If freedom of expression is concerned with hearers’ interests, it is unclear why the right is bounded by speakers’ choices—the choice not to speak, for instance. Should we understand freedom of expression, a hearers’ right, as being weighed against a speaker's non-expression liberty right to refuse actions that he finds undesirable? None of these problems arise, however, if freedom of expression is understood as an associative freedom—it is a negative right against interference that begins and ends with the choices of one's counterparts. This keeps freedom of expression a negative right, and it entails that many laws, in particular those that do not restrict liberty through coercive penalties, are not Track Two laws after all.

76. Williams, S., Content Discrimination and the First Amendment, 139 U. Pa. L. Rev. 615–730 (1991)CrossRefGoogle Scholar, at 724. Alexander quotes this section from Williams; Alexander, supra note 4, at 17.

77. Presumably, we do not want to turn race-car driving into a Track Two freedom-of-expression protected activity, even it takes place before an audience and threatens the safety of no one other than willing participants and willing observers. How should we deal with this? Perhaps the resource-consumption level of racing exceeds what we can claim for our expressive activity. Again, I have no theory regarding the appropriate threshold for such consumption. It may also be that freedom of expression is bounded by limits on the physical risks that we permit people to face.

78. This allows us to draw a distinction between Int'l Soc'y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 830 (1992) and speeding expression cases. However, this distinction is not enough to explain the result in Clark v. Cmty for Creative Non-Violence, 468 U.S. 288 (1984). In this case, a regulation preventing camping in certain sections of public parks was deemed constitutional even though it prevented the peaceful sleep-in protests of an activist group that wished to draw attention to the plight of homeless persons. Justice White argued that the ban on sleeping was necessary both to discourage “round the clock” protesting and to protect the park from the damage caused by overnight camping. The problem in Clark is not risk of injury but the resources consumed or destroyed by the expressive activity. In his dissent, Justice Marshall complained that no evidence was adduced to support these concerns. Thus one might argue that Clark was wrongly decided.

However, we must still face the question of the resource consumption involved in expression. Suppose that a ban on pamphleting is not motivated by a concern with litter. Instead, the government bans pamphleting to cut down on what it regards as excessive or inefficient usage of the underlying resources. Indeed, the government might simply wish for speakers to switch to a less resource-intensive medium. Here I would suggest that governmental incentives to move to a different medium should be sensitive to whether that medium lies within the purchasing power of those speakers otherwise inclined to use paper pamphlets. While the right to freedom of expression would not require the government to subsidize the alternative medium if it left paper pamphlets alone, free expression might call on the government to subsidize the alternative medium if that medium was more costly or less accessible than paper. I thank Karen Asp for reminding me of the importance of environmental concerns about resource consumption.

But what about the resource demands of symbolic speech? Should freedom of expression permit individuals who “require” certain resources for their symbolic message to enjoy a particular privilege against governmental efforts to conserve those resources? I am not sure how to approach this question. However, unlike Alexander, I am not particularly troubled by the problem of the symbolic speech in U.S. v. O'Brien, 391 U.S. 367 (1968). Here the problem is not the consumption of resources but the destruction of an article or document (a draft card in this case) that the government uses to implement legislation. A draft card is not merely a resource that the government seeks to conserve, nor is it simply a symbol (like a national flag). It is an object that the government has made to serve a specific objective (implementing the draft)—the right to protest that objective cannot be transformed into a right of direct interference with it. See Alexander, supra note 4, at 22–24.

79. Nor should my freedom of expression entitle me to force other persons to increase their level of attention to my safety. In Levy v. State of Victoria (1997) 189 C.L.R. 579 (Austl.), the High Court of Australia upheld a law that effectively banned protesters from entering a hunting area. Persons without a hunting licence were precluded from entering an area reserved for bird hunting. Obviously, this expression would increase the level of caution required by hunters and would also constitute direct interference with the activity that protesters wish to protest against. See Alexander, supra note 4, at 23 n.31.

80. Here I am assuming that unwilling third parties are exercising their own liberties in a way that is permitted or mandated by democratic laws. I do not think that Track Two free-expression jurisprudence can play a role in determining the appropriate balance between liberty and security (where we should set the speed limit for example). In this regard, the Track Two aspect of the right to freedom of expression is not fully prepolitical.