Private Property and Public Speech

Marc, Zephyr, and Tim (as well as Derek) have presented a number of interesting insights and challenges in the past few days regarding our First Amendment Architecture symposium. On Friday, I debated the article with Lillian BeVier and Yochai Benkler. They raised some other important points, as well as some overlapping concerns—regarding property, negative liberty, and digital communications infrastructures.

I will present some thoughts, first, on the relationship between property and speech. All the posts discuss the relationship between speech and property to some extent. And Lillian BeVier played the role of my article’s “opponent” absolutely perfectly and effortlessly (without even acting) partly because of her defense of property rights against speech trumps.

Under current doctrine, it is not clear which way public property cuts. Sometimes, it forces government to keep spaces open for speech, as with the traditional public forum. Other times, government can impose more limits on speech, as with subsidized speech (or, in the conventional story, broadcaster speech on public airwaves). The response, “But that’s different, it’s government property,” is not much of a response unless we know which way the argument cuts and why.

In Architecture, by contrast, I argue that many important free-speech principles cut across both publicly owned and privately owned spaces. Despite some pushback, I stand by this claim. Speech considerations, not property considerations, animate the precedent. Just as government can burden property for dozens of worthy governmental ends, from public safety and labor to ensuring lower prices, both judges and government can burden property to further speech-based ends.

Two examples from precedent will help. Descriptively, I argue, that the doctrine reflects several principles in conflict with “negative liberty.” I don’t argue that I have made sense of all the doctrine descriptively; no scholar could make that claim about any complex area of doctrine. But I do argue that the doctrine, as it is, reflects several “architectural” principles. The principles are descriptively evidenced in precedent and practice—with much evidence and with great impact.

Relevant for this post: I argue that the principles operate (and should operate) almost identically whether private or public spaces are involved.

The first example is traditional public forums—which do and should operate the same way across publicly owned and privately owned spaces. Marsh v. Alabama refused to apply trespass law against speakers on the streets of a privately owned company town. There were 2000 company towns at some point, so the case was not insignificant. Let’s imagine a First Amendment case involving a company town today. I would be surprised if the courts would not look to traditional public forum doctrine—or if fewer parks or streets must be open for speech or if more (any) shopping malls or amphitheaters would be open for speech. I think the doctrine, minimal to some, would extend fairly equally. Of course, in a publicly owned town, whether a particular publicly owned or privately owned park is required for speech is a different question—one prompted by the fact that Zuccoti Park, home of Occupy Wall Street, is a privately owned public park. (See Ackerman & Benkler.)

Second, consider designated public forums. Government can designate public property as a forum for all speakers or for a certain class of speakers (such as students or newspapers on postal property). At the same time, government can designate a lot of private property, such as shopping malls, but also communications infrastructure, such as cable systems and phone systems. Indeed, two Justices (Justices Kennedy and Ginsburg, in Denver Area Educational Telecom. Consortium v. FCC, 518 US 727, 783) likened access for speakers on cable platforms to the designated forum doctrine— even though cable platforms are privately owned, as Justice Clarence Thomas pointed out in his own concurrence in that case. While there are some limits on the types of private property government could open for speech (malls versus homes, as discussed on pages 23-26), I would doubt that different restrictions would be acceptable on designated public or on designated private property. Both would be subject to the nondiscrimination principle I note in my article (pages 57-59) and emphasized by Frischmann in a symposium post. (If the government sought not to designate property but to engage in government speech on the property, that would raise different issues than designating forums on private property.)

The question is: why would private property not matter more in analyzing government action promoting speech?

First, in Marsh, the Court recognized that private property rights do in fact rely on public power. Trespass law, a law of private property, is created by government, enforced by government, and reflects government power. Courts sometimes recognize that fact in refusing to enforce property rights where government enforcement of that right would fundamentally conflict with a constitutional limit on government—in Marsh, free speech, in Shelly v. Kramer, equality. As Mark Tushnet has argued, there is no rhyme or reason to when courts treat private property as public law. But Marsh is in that narrow class—ensuring minimally sufficient speech spaces everywhere.

The more important point is the second one. After the demise of Lochner, and subject to the Takings Clause, government can generally regulate private property. But courts sometimes use the First Amendment to strike down regulations of telecommunications and cable networks, a use often criticized as First Amendment Lochnerism.  Generally government can regulate property to further such goals as ensuring low prices, public safety, labor standards, and even aesthetics. In light of that backdrop, it would be odd to believe that the government could not promote speech-based goals generally. The key question for courts would be whether government is regulating private property in a way that would reflect censorial intent or effect—and the rule against suppressing specific content or discriminating on viewpoints generally gets at that concern far more specifically than a rule against burdening property for any speech-based purposes.

It is for these reasons that I do not necessarily think an architectural “trusteeship” is necessary (though I really like Tim’s metaphor and see its appeal). Government can regulate considerable spaces for many reasons. Speech is one. Determining the limits of government deference to regulate such spaces should turn on normative concerns underlying the First Amendment itself, not those underlying the Takings Clause.

That is, the concerns should be speech-based, not property based. Indeed, we would need a theory of the First Amendment to explain why property should be so central to First Amendment limits. Government can legislate against inequality on private spaces and should be able to legislate against speech restrictions on private spaces as well.


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