Just as all contractual situations can be reconceptualized as involving
a form of economic coercion, all speech situations involve different
degrees of coercion as well.

This claim must surely seem odd at first. Yet it is a simple application
of an argument made by the legal realists long ago in the context
of economic liberty. Here we must turn again to the work of Robert
Hale. Hale pointed out that the reason why we contract with other
people is because they have property rights. The coercion inherent in
market transactions consists precisely in the fact that others can
refuse to deal with us or give us things we want unless we pay them for
the privilege. Indeed, if we try to take something from them without
contracting, they can invoke the power of the state to punish us.(83)
Hale's point was simply that you can coerce someone to do something
when you have rights and can threaten to exercise them. Sometimes this
coercion is not at all unpleasant, and we hardly notice it as such. In
other cases, such as contracts of adhesion and cases of economic duress,
our subjective experience is quite different. Nevertheless, Hale argued,
coercion is simply the flip side of a guarantee of free choice to deny
benefits to others. Coercion has no necessarily pejorative connotations;
it is merely the by-product of a system in which private rights are
protected by government sanction.(84)

For this reason, Hale argued one should not assume that the existing
regime of contract rights enforces only bargains entered into without
coercion. The background allocation of property and contract rights
sets the ground rules for how parties will be legally permitted to
coerce each other. The appropriate question to ask is how much coercion
the law will allow. If we have a classical theory of consideration and
no doctrine of substantive unconscionability, then the coercive power
produced by the exercise of private rights will run in one direction. If
we substitute doctrines of detrimental reliance and strong notions of
unconscionability, then the balance of coercive power will shift to
other parties. In neither case, however, will we produce a system that
respects only the free will of the parties and does not involve forms of
coercion.

Indeed, one can make an even more general argument about free will
and coercion. Free choice is an intellectual construct that occupies
the semantic space that has not been assigned to the concept of
coercion.(85) Nevertheless, because guarantees of private choice also
produce opportunities for coercion, these two concepts exist in a
relation of mutual dependence and differentiation. What we call freely
chosen action is always circumscribed within a set of limitations on
action. These limitations construct the contours and boundaries of
what we call a person's free choice. In most cases, it is perfectly
reasonable to speak of a person who is limited by circumstances as
nevertheless acting or choosing freely. The problem comes when we move
to issues of justification. To justify existing limitations on action or
choice based on the fact that one is not acting under duress but instead
has free choice -- which means only that one is choosing within the
context of those limitations -- is ultimately a circular argument.

This general point applies to limitations produced by rules of law. We
say that actors within a system of law have the freedom to choose how
they will act. But this freedom is circumscribed and defined by the set
of limitations that the law imposes on the actor, as well as the powers
of coercion granted to other private parties by the law. Thus, what
we call free choice is not something that preexists the legal regime,
and which the legal regime merely attempts to vindicate. Rather, free
choice (and its opposite, coercion or duress) are constructed by the
existing regime of legal rules. This leads to a problem of circularity
like that described above. It will do no good, for example, to say
that a contract with grossly unfair terms is just because the parties
agreed to it through an exercise of their free will. The problem is
that the free will of the weaker party is defined and constructed by
what types of actions are available, given the existing system of rules
of contract and property. It may be true that the weaker party chooses
the unconscionable terms, but that is because the rules of property
and contract do not allow her to force the other party to offer better
terms. Thus a system of rules circumscribing the scope of one's choices
in economic bargains cannot be justified on the grounds that people
acting within the system of rules freely choose what they think best for
themselves given the legally available alternatives. For virtually any
system of legal rules could be justified in this way.(86)

The same arguments about free will and coercion in the economic
marketplace apply to the problem of coercion in the marketplace of
ideas -- that is, the problem of the captive audience. We feel sorry
for the captive audience because we believe that persons who listen in
such circumstances are listening against their will, lacking any real
alternatives. In contrast, we note that the person who is offended
by speech in other settings can, by an act of will, avert her eyes,
escape the speaker, or stay and argue back.(87) If she stays and is
offended or injured by the experience, her injury is a product of her
own willed choice, and her offense, in some sense, is her own fault. My
point is not to deny the value of this common sense way of looking at
things. Rather, I want to emphasize that no less than in the case of
contractual relations, what we call an exercise of "choice" and what we
label a "captive audience" or the product of "duress" is the result of
a background set of rights, which include not only property rights but
also the right of free speech itself. In other words, Hale's analysis of
freedom and coercion, so admired by left scholars in discussions about
labor legislation and welfare rights, must also be reckoned with in
first amendment law, which also relies upon similar concepts of "choice"
and "duress."

Let us take, for example, the case of the communication you are
presently reading. This poses few problems of unjust coercion between
author and reader. You have chosen to read this Article. You can pick it
up or put it down, scrawl nasty comments on the margins of the paper,
and so on. If you are offended by what I am saying, nothing forces you
to read further. You are exercising free choice. My point, however,
is that even if you see your choice as free, it is also a choice made
within a preexisting set of property and speech rights. The relatively
non-coercive nature of this communicative transaction derives from
the assumption that nothing substantial in your life (whether it be
retaining your job, advancing your career, or impressing someone else)
turns upon your reading or not reading this Article. On the other hand,
if you wished to become a lawyer, and if everyone who graduated from law
school was required to recite the contents of this Article by heart or
produce a detailed analysis of its arguments (here I indulge in a law
professor's dream), you undoubtedly would think your freedom to refuse
to read this Article was significantly diminished. You might retreat
to the position that your will was unencumbered because you still had
the choice, after all, to become something other than a lawyer. But
this argument is strangely reminiscent of the Lochner-era argument that
bakers are not in any sense forced to work more than sixty hours a week
by their employers because they are in no sense forced to become bakers.