First Amendment Architecture

Abstract

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role that judicial doctrine plays in ensuring the availability of spaces for speech. Indeed, scholarship generally characterizes doctrines that are concerned with speech spaces, such as public forums and Internet forums, as “exceptions” to “standard” First Amendment analysis. In response to normative arguments that the First Amendment should be concerned with ample speech spaces, many scholars simply respond with a descriptive claim about what doctrine currently is: they claim that the concern for spaces is only peripheral, “exceptional,” and at odds with “standard” First Amendment understandings. By overlooking or marginalizing decisions about speech spaces, as well as relying on this descriptive characterization of doctrine to reject normative arguments, scholarship has failed to recognize the logic underlying important doctrinal areas and has failed to explore what these doctrines reveal about the First Amendment’s core normative underpinnings.

This Article adopts a different approach. Rather than making the descriptive assumption that free speech doctrine is unconcerned with spaces, this Article identifies and interprets the Court’s role in ensuring, requiring, or permitting government to make spaces available for speech. This Article identifies five persistent judicial principles across a range of physical and virtual spaces. These principles are evident in precedent and practice that either require or permit government to ensure spaces for speech — in order to promote particular, substantive speech goals. Further, rather than quarantining these speech principles as exceptions to the “standard” analysis, this Article explores the significance of these principles for “core” speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. This Article provides timely guidance for legislators and judges, as it should inform statutory and constitutional decisions for shaping access to the technology enabled virtual spaces increasingly central to Americans’ discourse, to our liberty, and to our democracy.

Keywords: First Amendment, Negative Liberty, Network Neutrality, Speech Spaces