BRIGHT IDEAS: Timothy Zick on Speech Out of Doors
Professor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.
SOLOVE: What motivated you to write about the issues in your book?
ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.
SOLOVE: What’s the central idea in your book?
ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.
SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?
ZICK: Well, one might say, so what? In the digital age, many speakers and audiences have migrated to the virtual realm. That’s certainly true. But more traditional places and methods of public expression remain critical to our expressive culture. One of the most fascinating aspects of my research was the discovery that despite longstanding criticisms regarding the efficacy and salience of public protest and other forms of public expression, people still gather in public places – sometimes in great numbers – to demonstrate and communicate. Material and “cyber” places serve very distinct participatory functions. A self-governing society needs both types of places. Given their lower costs and broader reach, cyber places are ideal for networking, broadcasting, and shaping public opinion. With their visibility and physicality, material public places offer distinct advantages in terms of exerting public pressure on citizens and officials, countering the effects of citizen “narrowcasting,” and creating solidarity.
SOLOVE: Should the law preserve free speech rights on private property? If so, how and when?
ZICK: If the expressive topography is in fact eroding, and if we ought to be concerned about that, what if anything can be done? I offer several proposals and suggestions, each geared to the particular type of place on the topography and the “gap” that needs to be filled. In very brief terms, new attitudes and behaviors must be encouraged, different landscapes and architectures must be envisioned and constructed, and legal doctrines must be revisited and in some cases revised.
Perhaps the most controversial of the specific proposals in the book relate to the treatment of “private” property. The contemporary expressive topography contains far too many places in which audiences are “protected” from speakers – in shopping malls, airports, subdivisions, gated communities, recreational areas, privatized urban tunnels and skyways, and sprawling college and university campuses. Much of this erosion has occurred through the “demotion” of spaces that once were public forums and the failure to preserve expressive liberties in modern simulated downtowns and public squares. I propose preserving some space for expression in these and other modern spaces, through a combination of reliance on state constitutional provisions and property doctrines, imposition of development conditions, urban and suburban planning, community activism, and more exacting judicial review of forum demotions.
SOLOVE: Tim’s book is Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). It is available in paperback and is priced very reasonably. Pick up your copy today!