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Displacing Dissent: The Role of 'Place' in First Amendment Jurisprudence

55 Pages Posted: 9 Nov 2007  

Thomas P. Crocker

University of South Carolina School of Law

Abstract

From the perspective of free speech theory, both of the central First Amendment values - human autonomy and deliberative democracy - require robust protection for the places and spaces in which speech and public discourse occur. This Article argues that current Supreme Court doctrine does not effectively protect speech from content neutral regulation of place. The problem is that remaining neutral is consistent with policies that would dislocate the very place for the "marketplace of ideas." Moreover, free speech theory focused on autonomy and deliberative democracy has not adequately addressed the role that place plays in furthering these values. Speech may be, and increasingly in practice is, suppressed by control of the places and spaces where speech occurs. Limitations on public expressions critical of administration policies at Presidential events is a key example of the regulation of speech through the regulation of place. Dissent is increasingly displaced with the consequence that the figure of dissent risks disappearing from public discourse. Employing aspects of Hanna Arendt's political philosophy, this Article argues that we need to re-think and re-articulate the importance of public places for our free speech tradition. Personhood and human autonomy, as well as robust public debate, can only exist and develop in fullest form within social structures that provide public places and spaces for human interaction and discourse. Fundamentally, as Arendt suggests, we protect public appearances for public discourse not simply for its instrumental value for deliberation, but for the intrinsic value of creating persons and citizens in their fullest form.

Keywords: Constitutional Law, First Amendment, Free Speech, Legal Theory, Place, Autonomy, Deliberative Democracy

Suggested Citation

Crocker, Thomas P., Displacing Dissent: The Role of 'Place' in First Amendment Jurisprudence. Fordham Law Review, Vol. 75, No. 5, 2007. Available at SSRN: https://ssrn.com/abstract=1028833

Thomas P. Crocker (Contact Author)

University of South Carolina School of Law ( email )

Main & Greene Streets
Columbia, SC 29208
United States

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