A More or Less Ambitious Argument about First Amendment Architecture?

Thanks again to all who have participated in the online symposium on First Amendment Architecture and to Danielle Citron for inviting us on.

For this likely last post, I discuss some thoughts on challenging the negative-liberty model and incorporating media and physical spaces. I present these thoughts in light of suggestions by several scholars that Architecture is, in different ways, either too ambitious or not ambitious enough.

More briefly, I address the argument that Architecture is not ambitious enough in its claims. Whatever the legislature may do constitutionally, the judiciary itself should mandate access to spaces beyond traditional-public-forum equivalents. I am not arguing for an aggressive enough First Amendment agenda for spaces, by this reasoning. Greg raised this argument forcefully here, as did several scholars at my first faculty workshop for a draft of the article, presented last summer at Stanford. I responded to this point here in a post. Simply put, I don’t make the more “ambitious” argument because I don’t agree with it. I don’t have as much faith as others in the judiciary’s competence or legitimacy to take a much more active role than the one for which I argue. I welcome the (quite constrained) role for the political branches that I defend in the article.

As for the argument that Architecture is unduly ambitious in its means for reaching its intended goals, some have suggested that I could reach the same practical outcomes in particular controversies without fundamentally challenging a conventional theoretical view of the First Amendment. That is, I need not challenge the negative-liberty model (discussed here). Rather, I could redefine that model to suit my purposes, as Marc thoughtfully suggests. I need not incorporate physical and virtual spaces into my analysis. Rather, I could simply focus on the virtual spaces on the communications infrastructure, as many free-speech scholars do not focus on such issues as “First Amendment” issues (wrongly, I believe).  As a result, establishing a framework to make sense of the communications doctrine under the First Amendment could be seen as improving understanding of a “new” area of doctrine, rather than challenging the existing understanding. And the arguments would remain within the “media exceptions.” According to this objection, the practical upshot would remain as consequential for the highly important communications-infrastructure decisions.

The simplest practical upshot from Architecture is this. Courts should not apply so-called “standard” scrutiny (rather than the many exceptions) to a wide class of wireless and wireline technology laws ensuring open access for all sites and services on the Internet. At the least, courts should not apply some circuit courts’ version of “standard” Turner scrutiny evidenced in a few decisions discussed on page 61. This particular application of scrutiny bizarrely turns First Amendment precedent on its head: some circuit courts’ Turner analysis favors private conglomerates’ ability to require the narrowest dissemination form the least diverse sources. It is an example of what Jack Balkin calls “ideological drift,” to where the First Amendment is not a “shield” for dissidents, but a “sword” for giant telecom and cable corporations to strike down regulations that “burden” them to foster greater diversity and access to speech.

Stated another way, the kinds of rules that have been presumed constitutional for the phone network (under no articulated standard of scrutiny) should be presumed constitutional for technologies transmitting data, such as wireless and wireline Internet networks. Indeed, to limit the kinds of rules that should be considered constitutional, we can turn to historical precedent and practice suggesting that several categories of rules are in fact constitutional: rules promoting broad public access, universality, local and national forums, and diverse and antagonistic sources. If courts engage in analogies and distinctions from precedential cases—the usual method of analysis in many areas of the common law—then many of the decisions I discuss provide strong supporting analogies.

But reconsidering fundamental assumptions about the First Amendment is appropriate for several reasons.

First, we might not gain much by reinterpreting “negative liberty” to reach our practical goals. Even though Marc would like to keep the negative liberty model intact in name, he would change it in practice. He suggests forbidding “indirect” means of suppressing speech. This proposal would limit the norms scholars sometimes draw from the negative-liberty model. When scholars evaluate cases based on norms such as “nondiscrimination,” “antiredistribution,” “pathological government distrust,” or simply keeping government out of speech decisions, the norms goes beyond “suppression” of speech to “involvement” in speech. Marc would more properly narrow the focus of the First Amendment, as applied by courts, to policing government attempts to suppress disfavored content (or, I add, favoring particular messages). But Marc would need to convince others that the negative-liberty model merely forbids suppression, not involvement, in speech, and that we should modify the metrics used to evaluate decisions and laws as a result of this insight. So Marc’s path to improving the way we think about the First Amendment would in fact result in the same fundamental challenge. He dresses his argument in the clothes of “negative liberty,” and I understand those garbs are fashionable in some circles. In other circles, a First Amendment model that incorporates the communications tools of our time—rather than focusing on pamphlets and campus hate speech—might not need to be clothed in the dress of negative-liberty.

While Marc limits the negative-liberty model with the word “suppressing,” he expands it with the word “indirect.” I agree that indirect censorship is a problem, but again Mac will have to convince others that the negative-liberty model also forbids indirect censorship. Yochai Benkler has written about indirect suppression as have others, and I hope their arguments carry the day. Enforcing or creating “property” rights is the main “indirect” form of suppression: for example, the “intellectual property” rights at issue in SOPA and PIPA were considered censorship by many, including many scholars. For negative-liberty adherents, private property law is not even “indirect” suppression. Government enforcement of property law should not be seen as government action for constitutional purposes, according to this view.

Moreover, as Mark Tushnet has argued about the public/private distinction, and as I discuss in my post on property, courts sometimes treat “private property” to be an instance of public action, not of private action. Other times, government enforcement of private property is seen as private, not governmental. At the same time, courts sometimes treat restrictions regarding government property as merely acceptable conditions on a subsidy, rather than a restriction. Other times, the restriction is a restriction. We need to determine when “private” property is public or private. Answering this question requires reference to normative considerations, and to normative considerations tied to freedom of speech.

Indeed, negative liberty is an unhelpful construct. The doctrine simply does not keep government out of “speech”—government can engage in government speech, subsidize speech, and regulate speech (not just “non-speech”) in dozens of ways, some of which I discuss. Since government can regulate some speech sometimes, but not other times, there have to be some metrics for determining when government can and cannot regulate speech. Negative liberty and private property do not provide that metric. We should turn to more speech-based normative considerations to measure laws and cases, and I think the considerations I identify in the article are useful metrics.

Second, cordoning off communications technology won’t work. This is because the Internet is not the last technology. Every time a new speech technology comes along, the courts must determine how to address that technology. The usual argument is, “Negative liberty should apply,” and we should apply norms based on the liberty. This argument assumes that the negative-liberty model is the core, the default.

It is not, nor should it be.

Moreover, new technologies will, and do, blend physical and virtual spaces. At Occupy DC, for example, people communicate with those physically present, while making videos and images to communicate with those virtually present. People talk increasingly of an Internet-of-things or pervasive computing; we are often simulteanously in virtual and physical spaces. To see just one recent argument concerning both virtual and physical spaces, consider the San Francisco BART’s decision to shut off cell phone repeating stations at subway stations. In the aftermath, scholars and activists debated the issue. Questions included how the public forum doctrine applied to those subway station platforms; whether the relay phone network was a separate forum itself, and thus not necessarily open to the public; whether a separate forum of the phone network was itself a designated public forum; and whether (if the network was not a forum but a means of communicating on the physical forum) shutting down the network was merely time/place/manner restriction subject to intermediate scrutiny or the silencing of an entire medium of speech warranting strict scrutiny. These BART questions were even uncomplicated by private property rights, as the relay phone network was governmental property. The questions could have been more complicated (or less, depending on your view of speech on private networks).

Believing that we can have separate doctrines for communications and physical spaces is sounds like the debates of the 20th Century. Communications technologies are with us in every physical forum. Unified principles, such as those that I identify and defend, are necessary. Separate silos will not work.

The more ambitious argument may be necessary.

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