Property, Place, and Public Discourse

Abstract

A Madisonian First Amendment contemplates opportunities for speakers and listeners to engage one another on issues of public concern. The First Amendment, which protects rights to assemble and petition as well as to speak, contemplates that some such exchanges will occur in public places. Speakers have always sought out audiences - willing, undecided, and sometimes unwilling - in public places. But the architectures of public spaces are socio-fugal; they do not generally bring people together and so provide few opportunities for public discourse. The First Amendment doctrines of place, namely "public forum" and "time, place, and manner," are also socio-fugal. Facilitation of public discourse, speech that actually occurs in public places, is not their concern. As a result of this combination of spatial circumstances and doctrines, today we have very limited opportunities for public discourse.

This paper is part of a symposium on the Rehnquist Court and free speech. The Rehnquist Court placed an indelible mark on public space. The principal critique advanced in this paper is that the Court made public discourse decidedly more difficult than it previously had been. Like prior Courts, the Rehnquist Court granted broad authority to officials to manage public places as if they were nothing more than mere parcels of property. But more than this, the Court diminished the expressive "easement" in places like streets and sidewalks; encouraged the tactical use of place and expressive zoning; refused to recognize new "quintessential" public forums; and recognized a right to privacy in public places. Listeners, who are already capable of filtering out most speech they do not wish to hear in private, are now shielded from dissenting views and other speech in most public places as well.

Public discourse, which has a long and venerable history in this country, cannot be sustained under these circumstances. If it is to preserved, there must be substantial changes, both to our fundamental conception of place and to the constitutional doctrines of place. Applying insights and approaches from two previous works on speech and spatiality, this paper proposes that place be refashioned in a manner that recognizes its importance to public discourse. This means that place must be separated conceptually from property principles and from the abstraction of the "public forum." The paper describes an independent conception of place, one drawn from studies of place in disciplines like anthropology and human geography. It explains why place as conceptualized should be preferred to conceptions of property and forum, and what a spatial analysis based upon this new conception of place might look like. Finally, after establishing place as a distinct concept, the paper argues in favor of not only conceptually but also mechanically separating place from things like time and manner, and for subjecting most spatial restrictions to true heightened scrutiny.

JEL Classification: K1, K19