Do we have a constitutional right to privacy? Since 1965 the U.S Supreme Court has built a trail of case law saying a right to privacy is enshrined in the concept of “liberty” in the Fifth Amendment (“nor be deprived of life, liberty, or property, without due process of law”).

The 1965 case that started this trail going was Griswold v. Connecticut, which said people’s right to privacy protects against government prohibition of their use of contraception in their home.

Thanks to a review of my book Noise Wars in the blog Legal Legacy, I learned that Justice William O. Douglas, who led the effort to enshrine privacy in the Constitution in Griswold, tried to do that earlier, in a captive-audience media case I mentioned in my book.

The case was Public Utilities Commission v. Pollak and involved the piping-in of commercial radio on a commuter train in Washington, D.C., in the early 1950s. People objected to being made a captive audience to media that they couldn’t ignore or tune out, but the court ruled that riders had given their tacit approval of the media by boarding the train.

In his dissent, Douglas said many people had no choice but to take the train. But, more fundamentally, the force-feeding of content that people can’t ignore constitutes a violation of their liberty, which includes their right to privacy.

Douglas’ dissent is essential reading for anyone concerned about the proliferation of captive-audience media, but the fact remains that he failed in his attempt to enshrine the idea of privacy as a subset of our right to liberty in the case.

But he did succeed about a decade later, in Griswold, and as the reviewers at Legal Legacy say, it’s an interesting question to look at how the post-Griswold right to privacy interacts with the idea of audience captivity.

The Supreme Court has already said that government has the right, without violating people’s right to free speech, to regulate the force-feeding of intrusive content. That right was established a few years prior to the commuter train case when the Supreme Court in Kovacs v. Cooper said it was OK for a city to impose a ban on audio trucks (trucks that drive around blaring audio content from a speaker).

Thanks to Legal Legacy for such a thought-provoking review of Noise Wars. What I take away from their review is that law is never a settled matter. Just look at the sweeping ruling last week from the Suprme Court treating corporations as citizens with free speech rights similar to individuals. Decisions don’t get any more radical than that, and it shows the ever-changing dynamic of law.