Free Speech Architecture – Baseline Spaces for Speech (#3)

In previous posts about a recent article, I argue that it’s both descriptively inaccurate and normatively problematic to think that the First Amendment embodies merely a negative liberty—a freedom from government interference in matters of speech, even if government is acting to open additional avenues of speech for all. I claimed that what many people now consider doctrinal “exceptions” to the negative liberty model govern much of our speech and reflect overlooked substantive principles regarding the First Amendment’s role in ensuring individuals’ access to spaces for speech.

This post is about the first of the five principles that work together to reveal the First Amendment’s concern with availability of speech spaces.

As a matter of judicial mandate, individuals must have access to some basic, minimal spaces for speech. These include private spaces for reflection and opinion-forming and public spaces for debate.

First, the First Amendment protects reflection and opinion forming in certain private spaces. Special rules govern the family home. Government intrusion is suspect, even for speech otherwise unprotected in public, while government can pass laws more permissively silencing unwanted speakers near the home (picketers, those using loudspeakers, and others). (Pages 23, 24.) I argue that these doctrines suggest that the individual must have some separate space, here the home, away from the public sphere, for reflection and opinion-forming. Such an autonomous space is central to a well-functioning democracy. (Robert Post has written some of the most interesting work in this regard—discussing the paradoxes of democratic discourse rests on individual autonomy.)

Finally, the First Amendment secures a baseline space for public discourse. Under the traditional public forum doctrine, streets, sidewalks, and parks are open to speakers unless the government can prove a compelling state interest behind a narrowly tailored restriction.

These forums are not inconsequential spaces devoid of speakers. 2011 was a banner year for protesters on streets and in parks, so much so that Time Magazine’s person of the year was “the protester.” From the rotunda of the Wisconsin state capitol to the grounds of Zuccotti Park to the plazas of Tahrir Square, public spaces erupted in outbursts of populist discontent. And while most attention was focused on the protesters or the role of Twitter, Facebook, YouTube, and Tumblr, the physical spaces where they demonstrated were just as critical in allowing them to be influential.

In Wisconsin, public employees took advantage of the traditional public forum doctrine when they demonstrated for months outside the state capitol to oppose cuts to their unions.

In other cities across America, the Occupy Wall Street movement used public forums for extended and highly visible protests. At the movement’s hub – New York’s Zuccotti Park – the status of the protesters’ rights was complicated by two factors: the degree to which sleeping and camping constitutes “speech,” and the fact that the park is privately owned but open to the public. Anjali Dalal is writing something interesting right now on privately owned public spaces, in light of the second question.

Indeed, the rule that Americans have some minimal spaces for speech extends to towns that are privately owned. In the mid-20th century, in the wake of the world’s experience with fascism and world war, the Supreme Court ruled that that streets in privately owned company towns must be treated as traditional public forums. While this case is often considered a major “exception,” millions of Americans lived in company towns at the time. The case had a profound practical impact. It ensured that those living in company towns had a nearly identical public forum doctrine, providing a minimum baseline of open speech spaces. This case is supposed to be an “exception” to the negative-liberty model, but it is a pretty significant challenge to that model.

The traditional public forum doctrine in public and privately owned towns welcomes (indeed requires) government’s affirmative involvement in speech. We can call these mere exceptions, or we can seriously ask what these doctrines say about the First Amendment’s core meaning. They suggest that space is essential for our public discourse and that the First Amendment itself requires such spaces for this reason.

Moreover, the importance of particular judicially-protected spaces is evident in a constitutional provision adopted before the First Amendment. The framers saw fit to enshrine considerable protection for discourse related to the affairs of the national government. To protect the ultimate democratic speech-space, the two houses of Congress, the framers provided a specific constitutional immunity: “for any Speech or Debate in either House, [Members] shall not be questioned in any other Place.”

These judicial requirements, for both autonomous reflection and public discourse, are a foundational principle underlying the other core principles of speech spaces. With these judicially required spaces available, society can democratically designate additional publicly owned and privately owned spaces for speech, even beyond those judicially required.

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