What Thinking About Free Speech Architecture Can Do For First Amendment Law

I’m hoping to hear more soon about the discussion at Friday’s First Amendment architecture panel in the Stanford Technology Law Review Symposium. But in the meantime, I’m looking forward to continuing our own discussion of Marvin’s ideas here on Concurring Opinions.

As I wrote in my previous post here, there are already some familiar aspects of First Amendment law — acceptable to “negative liberty” proponents – that protect not just speech itself, but the architecture that makes it possible: They defend our expressive environment against any government censor’s attempts to redesign it in a way that hampers speech. Prevented from jailing a speaker they’d like to silence, officials may not simply find a more indirect method of silencing him – by, for example, forbidding him from using a printing press or other means necessary for speech, or denying him access to the parks or other traditional public forums that provide citizens a public space from which to communicate.

So given that these long-standing features of First Amendment law protect our expressive environment, what might Marvin add by illuminating the “architectural principles” of First Amendment law? The answer, I think, is quite a lot – and I’d like to begin by considering two different respects in which it might do so.

First, one possible contribution is more theoretical than doctrinal: Rather than telling us what free speech law should do differently, it helps reveal the implicit logic for what free speech law already does right. The architectural principles that Marvin lists might help us make better, sense, for example, of why our existing free speech law identifies – and strongly protects – our access to “traditional” public forums, as parks and streets, but offers speakers a far more limited and fragile protection in forums created not by tradition, but by government. The first set of forums – the parks and streets – is necessary to satisfy the “sufficient, required spaces” principle. These forums have to be open to people if democratic deliberation and other public discourse is to survive at all. What government contributes beyond this initial core, on the other hand, might be essential for public discourse to flourish, but isn’t essential for it to survive. Thus, on Marvin’s account, these “additional” “designated” spaces are something the First Amendment empowers legislatures to create, but generally not something that it allows judges to impose upon society over the objection of democratic majorities.

Such an architectural account of expressive spaces is helpful because it helps explain how a type of space may come to be a “traditional” public forum even in the absence of an indisputable tradition of unhindered speech: Courts might find evidence that, for First Amendment discourse to have the minimal space it needs, openness in parks and streets is absolutely necessary even if it is not historically entrenched. This may explain, for example, why Justice Robert decided– in his Hague v. CIO opinion – that parks had been free speech platforms from “time out of mind” when, in fact, American park managers had sometimes acted in ways that showed little awareness of, or adherence to, any such tradition at all, forbidding (as Galen Cranz has written) political and religious debate in their parks in order to assure that these spaces remained sites of quiet serenity. He and the Justices who followed his example may have felt that, in a society committed to free speech, people need some public space where their speech is strongly insulated from government restriction, and if history and tradition have not unambiguously provided one, then the Court may still do so with a little bit of creative rereading of history.

Second, with such a theory in hand, we might go beyond just explaining why certain features of First Amendment law are the way they are, and suggest doctrinal improvements. It’s possible one could do this by using the architectural principles to rework existing public forum doctrine. Marvin’s focus, however, is elsewhere. It’s not primarily on whether and when we can access physical space – although he certainly has something to say about that in the article – but rather on when we can voice controversial views in virtual and electronic space by posting material on the World Wide Web, or by sending a provocative Tweet, text message, or e-mail. As Marvin recognizes, and as other First Amendment scholars – including those joining in this discussion – have pointed out, this question is not one that can easily be answered by public forum doctrine for at least two reasons: (1) such electronic spaces are relatively recent and cannot plausibly be characterized in the way that Justice Roberts and others have characterized parks and streets – as place that have been open to robust, unconstrained debate from “time out of mind” and (2) the authorities that govern, and have the power to remove, content from such spaces are private entities like ISPs or media companies, which can and do assert their own First Amendment rights. Other scholars have proposed ways of addressing meeting such hurdles. In fact, they have been doing so for quite some time: It has now been over forty years since the publication of Jerome Barron’s classic article arguing for a “right of access to the press” and for ways to overcome the “non-governmental obstructions” that media concentration creates for robust debate. Access to the Press – A New First Amendment Right, 80 Harv. L. Rev. 1641, 1643 (1967).

But it seems to me that Marvin’s analysis of First Amendment architecture might help us tackle this familiar problem from a new angle. In fact, while Marvin – like some of the others who’ve argued in favor of letting legislatively imposed access rights – pits his own ideas against the “negative liberty” conception of the First Amendment, it seems to me that his proposal might be strongest when it is viewed as a more modest departure from that conception. For one thing, Marvin’s argument seems to me to be more consistent with a kind of free speech pluralism (and agnosticism) than are some other arguments for media- or Internet access rights. Unlike some scholars who build a case for such access rights on First Amendment first principles –for example, the idea that a need for robust democratic deliberation should trump media companies’ right to speak in their own voices – Marvin’s argument is about architectural principles that are arguably more theoretically modest: One might insist on “sufficient” space for speech – both in the physical brick-and-mortar world, and in the virtual realm in which communication and expression of all sorts increasingly take place – and do so without laying any litmus test regarding the purposes that such speech should serve. A demand for a certain free speech architecture, in other words, might allow one to generate an “incompletely-theorized” case for imposing certain speech-protecting rules on ISPs or communications companies. And Marvin seems to use architecture in this way when he explores how First Amendment architecture might advance not one – but multiple – First Amendment ends (primarily, democratic decision-making and individual autonomy). Thus, while Marvin spends much of time critiquing the negative liberty model — perhaps because it is the champions of that view who have argued most vigorously against Net Neutrality and other limits on the decisions that communications companies about the service they provide – it’s possible that the approach he is building can be incompletely-theorized enough to leave room for certain key elements of the negative liberty approach. (Of course, since as Larry Lessig argues, “[s]paces have values. They manifest these values through the practices or lives that they enable or disable,” Code version 2 (2006), a free speech architecture suitable for First Amendment pluralism has to be one that can accommodate – and enable – expressive activities that serve not simply one, but an array of, First Amendment ends).

Another possible benefit of the architectural approach is that it might help provide us with some guidance as to how to identify – and then protect — a core part of our speech environment, even when one can’t link it with an ages-old historical tradition of openness. At least as I understand Marvin’s argument, the idea is that the key marker of such an environment might be functional rather than historical: The freedom to post Web messages, or send text messages, free of censorship needs to be protected not because we’ve always expected it (we certainly couldn’t before the Web and text messaging), but because such spaces and communications have quickly come to play a central and essential role in the exchange of ideas. To put it another way: If the “parade of horribles” on the first page of Marvin’s article seems – to a modern American –to sketch a society devoid of free speech – if the First Amendment values seem to have no place in the nightmarish world it paints, in which the phone calls and Web postings alike are cleansed of controversial views – then the First Amendment should be understood in way that permits us to erect safeguards against such a state of affairs even if we can’t find precise analogues of those safeguards in the nineteenth and early twentieth century. To be sure, Marvin seems to be arguing that we actually can find at least some important analogues of such safeguards in that era – in the postal service and common carrier rules that developed to prevent content-based censorship of mailings and phone communications – so even if some historical tradition is needed here, we arguably have one. But, at the very least, we can do without a tradition of openness as old as that which the Court has found in the use of parks.

This way of looking at First Amendment law seems to me to parallel the proposed starting point that Anthony Amsterdam once suggested for determining what constitutes a “search”: courts, he said, must make a judgment “whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.” Although we might draw, when making such a judgment, upon historical examples – we might, for example, ask ourselves what forms of government surveillance American have viewed as a cause for worry – we might also approach this question in other ways, by asking, for example, whether the effects of a new, unforeseen form of surveillance with no good historical analogue (perhaps a GPS or certain kinds of computer searches?) are such that they too deeply erode the type of liberty the Fourth Amendment is meant to secure. Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974).

This doesn’t mean that imposing architectural demands on private entities is as unproblematic as imposing them on government. Nor does it mean that the application of such principles to actual cases would be straightforward: It’s fair to ask, I think, whether the architectural principles Marvin sets down are too abstract to provide any kind of guidance to courts or citizens – and, if so, what set of lower level-principles might provide more guidance and predictability.  I hope to say more about these questions in at least one more contribution to this interesting discussion.

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