Category: Symposium (First Amendment Architecture)


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.
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Free Speech Architecture: Normative Aspects (#8)

In seven posts (available here), I have set out the arguments in First Amendment Architecture. This post covers arguments made in the last 25 pages of that article, the normative and theoretical arguments.

In doing so, this post examines the implications of these principles both for how courts should decide future speech cases (that is, normative doctrinal implications) and for what the First Amendment “means” (that is, more theoretical implications).

We’ll begin with doctrine.
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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.
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Free Speech Architecture – Responses

I am excited about the great points made so far here on Concurring Opinions, and want to again extend my thanks to Danielle and everyone who has participated. I’m speaking on the paper in a few hours, and then plan to engage the points made by Marc, Tim, and Zephyr. I hope we’ll be able to continue these discussions well into future.

(Government) Speech Spaces

In terms of free speech architecture, I think the developing “government speech” principle poses some important questions.  Under this principle, some spaces are principally reserved for government speech rather than public discourse.  Are government speech spaces exceptions to the doctrine Marvin otherwise views optimistically, a separate aspect of speech architecture, not part of speech architecture at all, or simply products of a flawed doctrine or principle? 

I recognize that at this point the governmental speech architecture is not very well-developed.  But its foundation is coming into clearer focus.  In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces.  As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes close to turning a traditional public forum into a governmental forum.  Given its uncertain parameters, a host of other spaces might be affected by the government speech principle.  These might include some virtual spaces, such as government websites, that might otherwise serve as forums for public discussion.  Under the developing government speech principle, the more involved the government is in terms of funding, managing, and controlling speech activity in a particular space, the more plausible its argument that access may be denied — even on the basis of content.  

Perhaps this is just a small wrinkle with regard to speech architecture.  Or perhaps the government speech principle will create some significant cracks or holes in the archictecure.  Either way, I wonder what, if anything, Marvin thinks this doctrine says about the government’s relationsip to speech spaces.


Free Speech Architecture: Universal Access to Speech Spaces (#7)

So far I have discussed four principles concerning speech spaces (and Brett has added one). This is the fifth principle concerning speech spaces that I set out in my recent article. The First Amendment encourages access for all Americans to physical and digital speech spaces, even if the “unregulated” speech market would not provide access to many speakers. Those that benefit most from government efforts to expand universal access to speech spaces are speakers in rural areas or those without extensive means.

The traditional public forum doctrine, of course, promotes universality. Streets and parks are open to all, and they provide small, unpopular, or poorly financed speakers with an opportunity for a forum. These speakers often won’t have access to other speech spaces, like broadcast channels or newspapers. But government’s work towards achieving universal speech spaces has not been limited to public forums.
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Distinguishing Magarian’s “Ought” from Ammori’s “Ought”

Timothy Zick and Greg Magarian make some great points in their recent posts. For those unfamiliar with Zick or Magarian, they are two of the most important and insightful thinkers writing about the First Amendment today, evidenced even in these brief posts. I’m going to respond to Greg’s first.

Greg’s piece accuses me of being overly optimistic, and for misinterpreting First Amendment precedent and doing so for (misguided) strategic reasons. He assures us that First Amendment precedent is awful and getting worse. He says I should just admit as much, and that I should argue merely that the precedent “ought” to be better, not that it “is” any good at all. And his examples of the awfulness of doctrine include Citizens United (which I disagree with, but don’t dwell on as it is not so clearly “spatial,” the focus of the paper) and also points to the public forum cases.

We agree in part actually, but disagree in part. Here is where I disagree: I am more likely to celebrate what the doctrine is but not out of misguided strategy but because he thinks doctrine ought to be something different from what I think it ought to be.

A few years go, Greg and I had a discussion over dinner. At that dinner, he said that the courts should impose media access rules directly, based on the First Amendment alone, whether or not a law would create that access rule. I said that generally such access rules should be permissible, but not judicially required. My argument was based partly on institutional competence: judges are not really expert in media policy. Judges and clerks are not at the top of my list for people who should devise spectrum policy or  draft the communications regulations. And I think the public should indeed be more involved in making such decisions of designing our speech systems–and other institutions are designed to be more responsive to the public. Greg thinks courts ought to impose access rules and other rules; I think, subject to some limits, courts ought to defer to a range of permissible decisions by legislatures and agencies about such rules. This is why Greg takes me to task for celebrating the shopping mall case: I am less troubled that the courts did not directly impose access for speech but merely permitted governments to enact laws requiring access.

This is why Greg says, “But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no.  So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.” To me, that is important. Courts and lawyers often argue (or assume) that the First Amendment flat out forbids government from opening new spaces for speech–particularly digital spaces.  That the First Amendment does not forbid such action says something about the First Amendment–just as it not requiring access to shopping malls says something about the Amendment. And, in my opinion (and in that of some others), this permissiveness contradicts the notion that government must not pursue substantive speech-based goals, such as opening speech spaces, when they interfere with the speech market. For Greg, such permissiveness “doesn’t contradict or even complicate the negative liberty paradigm,” but I see it differently.

Finally, we do agree on a few things. The doctrine as it is could be better. I don’t think it’s perfect and it is certainly not getting better, but there are important strains in the doctrine, particularly regarding government discretion to promote diversity of sources, universal access, national and local speech, and simply additional speech spaces. There are far too many cases in our First Amendment tradition that uphold censorship. Far too many cases enable government to silence speech based on content-neutral reasons (something Tim has argued forcefully in his work on public spaces). And I am almost ashamed to engage in any comparative institutional analysis–weighing whether the Supreme Court is a better decision-making institution than the Congress is like asking whether the institution that brought us Bush v. Gore, Citizens United, and Holder v. Humanitarian Project should be trusted more than the institution, Congress, with a 9% approval rating that brought us the debt ceiling fiasco, nonstop gridlock, that recently rushed to pass a censorial copyright bill before being derailed (and had passed immunity for warrantless wiretapping and provided the president with the power to hold US citizens indefinitely without a trial).  Still, for reasons mentioned above, regarding the permissibility of opening speech spaces for speech, I am willing to be more optimistic than my friend Greg, though he does provide some excellent reasons for pessimism.


Free Speech Architecture: Spaces for National & Local Speech (#6)

At our nation’s founding, the framers of the Constitution faced a formidable challenge: creating a national democracy that would bind together thirteen diverse and autonomous states spread over a large geographical area. In 1787, the only successful historical models of democratic governance were small, tightly knit units, such as the ancient Greek city-states. No nation had ever succeeded in maintaining a democracy on such large and disparate turf as the thirteen colonies. James Madison argued that size actually favored democracies, as large countries were less likely to fall subject to “faction.” Federalism was another important answer to the question. But a less heralded answer was aggressive pursuit of promoting a national identity and national unity, while still preserving the independent, unencumbered character of local spaces. Ensuring both national unity and local forums would pose a challenge.

But early American leaders did not rely merely on an “unregulated” speech market and negative liberty.

Rather, American leaders established speech policies that consciously furthered two distinct purposes: the promotion of some speech virtual speech spaces to unify the nation and the promotion of others to preserve local communities. These affirmative goals illustrate the fourth principle evident in precedent, a principle that has been almost completely overlooked in First Amendment literature.
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Architectural Trusteeship

With regard to traditional public forum spaces, the Supreme Court has imposed certain duties on governments as “trustees.”  These duties include a responsibility to ensure access to public parks, streets, and (most) sidewalks, and adherence to a principle of anti-discrimination (although it may not include a duty to preserve any forum spaces in perpetuity, or require diversity of speech or speakers).  The trusteeship principle is problematic in the sense that it continues what I (and others) believe to be the categorical error of treating forum doctrine as a matter of property principles, rather than deeper spatial concerns.  However, the principle does provide a basis for imposing some obligation on government to open, maintain, and perhaps preserve certain spaces.

In an earlier post, I noted some of the benefits of Marvin’s broad conception of spatial architecture.  Here I raise a potential complication.  With regard to public forum spaces, the trustee concept arises principally from the fact of governmental ownership and the need for minimal access for exercise of fundamental rights of speech, assembly, and petition.  Trusteeship is rooted in the special nature of these places, in particular their historical connection to First Amendment liberties.  I wonder what normative or other basis exists for treating other speech spaces in a similar manner.  In other words, on what basis can government be said to have an obligation (whether judicially enforceable or not) of some sort to open and diversify not only traditional public forum spaces but  new spaces, virtual spaces, private spaces, and regulated (but not publicly owned) spaces?  I undertand from Marvin’s account that the doctrine can be interpreted to support this result, and that legislators can be “constitutional norm entrepreneurs.”  But to impose or argue for diversity, sufficiency, and other requirements across a broad range of channels and spaces, don’t we need a trusteeship principle, or something like it, for the entire architecture?  Can one be found in, or fashioned from, doctrine or other sources?


Free Speech Architecture: Access for Diverse & Antagonistic Sources (#5)

In the previous posts, I argued that First Amendment precedent guarantees minimal access to certain essential speech spaces (like streets and parks) and permits government to pass laws opening additional spaces (from designated public forums to shopping malls to digital spaces). But Supreme Court decisions historically endorse access not merely for a few, homogenous voices. The Court has repeatedly recognized that the First Amendment’s “basic tenet” is that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Following that basic tenet, courts generally do not require government to “stay out” of speech. Rather, courts permit government to pursue the substantive speech goal of promoting diverse sources on physical and virtual spaces opened for speech.  In practice, since the nation’s founding, legislative policies have been important to ensuring that Americans have been exposed to diverse speech sources.
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