Preserving Free Speech Architectures — vs. Designing New Ones

Thanks to Marvin for giving us such a fascinating and well-done article to debate here – and to Danielle and Concurring Opinions for giving us a virtual space for that debate can happen. I’m grateful for the invitation to join in.

Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture – and that, it should do so, at least in part, with an eye to “ensuring that Americans have adequate physical and virtual spaces available for speech.” I also agree that, in many cases, freedom of expression relies not solely on courts alone to give it force, but rather on a more complicated division of labor: Courts play an essential role in blocking legislative and other government censorship, but it often falls upon other actors – legislatures, agencies, social movements, sub-cultures – to both protect and nourish individual liberty of thought and expression in other ways. Marvin’s argument impressively answers both of these needs in First Amendment jurisprudence.

This is a significant move, and one I hope gets a lot more attention. But ultimately, I’m not sure that answering such needs requires quite as radical a paradigm shift as the one Marvin proposes. More specifically, I’m not sure that making sufficient room for architecture and architecting requires that we dethrone the negative liberty theory, and replace it with an alternative grand theory of First Amendment architecture. Rather, I’d like to propose that perhaps something a bit less radical, and a bit more theoretically modest, will be good enough – an approach that is aimed not at reshaping First Amendment theory as a whole, but rather as fitting it to a relatively new and challenging problem: namely, the fact that freedom of expression has come to depend heavily on electronic communication networks and virtual environments run by private (rather than government) actors, and with technologies can change more rapidly and jarringly than more familiar free speech architectures.

One reason I don’t think we need to dethrone the negative liberty approach to First Amendment is that – while it may well be inadequate to the task Marvin has his sights on – it gets us at least a decent part of the way there, and then even further along the path when it allows room for public forum doctrine.

Those who espouse the negative liberty approach are **not** thereby committed to turn a blind eye to questions about communicative architecture. Even if free speech law neither obligates nor empowers legislatures to enact laws that bolster speech – even if its sole mission is to stop government from suppressing speech, that mission may well include thwarting indirect forms of speech suppression wherein the government silences us by making speech very difficult or painful rather than illegal. For example, government might do so by arranging our social, physical, and/or legal environment in such a way that those who speak will not be able to do so anonymously. A city might, as in the case of Talley v. California (1960), adopt an ordinance barring anonymous distribution of handbills. Or it might require door-to-door solicitors to register with the town (as it did in Watchtower Bible & Tract Society of NY v. Stratton (2002)). These ordinances affect free speech architecture: Absent the ordinances, the world allows you to remain unknown as you pass out handbills or distribute literature door-to-door. With the ordinances, the First Amendment landscape is significantly different in that certain acts of expression or distribution become possible only if your audiences knows (or can rather easily find out) who you are. Yet the Court found both of these ordinances unconstitutional – and a proponent of the negative liberty approach could reach the same result. If the government is not permitted to censor or chill speech under the First Amendment, then perhaps it should be barred not only from making the speech illegal – but also from making it significantly more uncomfortable. I don’t see any of this as inconsistent with Marvin’s argument. But I think it’s worth stressing because it shows that while the negative liberty approach may not be entirely up to the job of protecting First Amendment architectures, it is perhaps better equipped to do so than Marvin acknowledges.

It is in even better shape when it is supplemented by the public forum doctrine, which I’m not sure is as glaring exception to the negative liberty model as some writers claim. After all, as Tim Zick has already pointed out, public forum doctrine doesn’t force the government to build a park where there is none or preserve it in perpetuity. Nor does it empower the federal government to create such a space in a city on the grounds that local government actors have failed to do so. Rather, free speech law comes into the picture in a significant way only after the forum – the park or street or other forum – is already there. And when it performs its function, one might argue, that function is largely a negative one: it doesn’t force the government to build the park, but once the park is up and running, it forces the government to refrain from silencing certain speakers in it (whether by penalizing their speech or kicking them out).

To be sure, there is a difference between what a speaker gets from public forum doctrine and what she gets from much of the rest of free speech law: Where a speaker may otherwise have to supply her own platform for speech, in a traditional public forum like a street or park it comes packaged with the speech rights in a sense. But I think the best way to understand public forum doctrine is not as a striking and inexplicable departure from the negative liberty approach but rather as a Burkean gloss on it. After all, one might argue, it was not the courts themselves that brought into existence the architectures that support First Amendment activity in public forums. It was – as the Court itself has told the story — the development of traditions outside of the courtroom: in parks and streets, said Justice Roberts in Hague v. CIO, we find property that has “immemorially” been open to the public and since “time out mind . . .used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  In some cases – as with the home – the basis for protection might be a set of physical facts (homes are shielded by walls) as well as evolving social norms and common law rules (you don’t spy through your neighbor windows, and if you do, you might be legally on the hook for that). And one might find a similar basis for insulating public universities’ curricular decisions or public libraries’ collections from legislative interference: Both of these institutions have evolved of norms and professional practices over the years that strongly emphasize intellectual freedom. In such situations, free speech architecture isn’t ordered into existence by courts and legislatures. Rather, courts find it in the cultural world outside of them and bring it under the First Amendment’s coverage. In these instances, however, the First Amendment’s role is the more conservative one of preserving speech-supporting architecture against legislative attack, not empowering the legislatures to generate it where it doesn’t exist. Moreover, where free speech architectures come into existence this way, we shouldn’t be shocked – or disappointed – if the specific jurisprudence that arises around them consists of a “messy” – and seemingly incoherent “collection of exceptions” to the more standard “negative liberty” default (I’m quoting p.3 of the article). A one-size-fits-all jurisprudence may simply not be able to accommodate institutions that have evolved to support speaking or reading in very different ways.

This doesn’t mean that this is a satisfactory stopping point – or that Marvin is wrong to want to want go beyond it. Neither the negative liberty approach nor public forum doctrine (even some improved counterfactual version of it) is well-suited to protect privately-operated First Amendment architectures from privately-generated First Amendment threats, especially in situations where the fast pace of technological change may make it quite difficult for courts to identify a decades-long history of speech-protecting norms or architectural features, let alone a tradition of freedom they might characterize as having existed “time out of mind.” While Marvin’s article interestingly suggests that consistent free speech principles operate “across private and public spaces” and “across media technologies,” I suspect that this underemphasizes an important dividing line between speech architectures (on the public side of the line) where the standard model (+public forum doctrine) may be better than Marvin admits, and speech architectures (on the private side) where our need for a different approach is clearer and more urgent.

Look forward to continuing the conversation tomorrow.

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