The Year in 'First Amendment Architecture'
7 Pages Posted: 5 Oct 2015
Date Written: February 10, 2012
The right to freedom of speech should be meaningful in a democracy, not meaningless. This right is widely believed necessary for informed, organized self-government. There are many conceptions of democracy, along a range including formal conceptions requiring little more than periodic voting and more substantive conceptions focused on real equality and meaningful participation in political decision-making and individual liberty. Free speech doctrine can serve more formal or more substantive conceptions. The courts interpreting that doctrine can give the legislature greater or lesser deference in adopting rules affecting freedom of speech, based on the courts’ conception of democracy and the First Amendment. Courts can provide deference for some decisions and not others, based on the courts’ own conceptions.
I recently argued that the courts should permit government to open additional physical and virtual spaces widely to all Americans for speech. Courts should permit government to open both publicly owned and privately owned virtual and physical spaces — from public parks to private broadband networks. Courts should require government to ensure at least some spaces for reflection and discourse, such as private homes and public parks and squares. Further, speech spaces should be available to all Americans despite wealth or geography, open to a diversity of antagonistic speakers, and tailored for political discourse of local and national controversies. As a matter of descriptive law, the courts have in fact made decisions in line with these principles.
As a matter of democratic theory, ensuring ample spaces for all speakers, alongside diversity and universality, promotes a substantive conception of democracy in line with our Constitution’s highest ideals. On the other hand, courts may defer to government policies to close otherwise “open” public spaces by creating caged “free speech zones.” Courts may strike down government policies opening up otherwise “private” virtual spaces, based largely on assumptions about the priority of property rights and treating property rights as “trumps” over speech rights. Such arguments were made explicit in Professor Lillian Bevier’s critique of my argument. While property rights advance freedom as an institution — an insight recognized since feudalism — government created property rights consist of majoritarian social policies.
My research in First Amendment Architecture can provide guidance to judges, legislators, concerned citizens — organizers and protestors among others — not only in understanding the events of 2011 but also in guiding the events of 2012 and beyond. This article therefore summarizes and defends the arguments raised in First Amendment Architecture. In that article, I argue that First Amendment doctrine embodies principles that empower or require government to ensure Americans have access to spaces to speak. This includes access to speech spaces on publicly owned property and privately owned property, and on both physical spaces and on virtual spaces like digital forums. I argue that these principles embodied in doctrine are substantive, reflecting notions of an open, inclusive speech environment, and that these overlooked principles in precedent should inform us of what the First Amendment means and should mean in the 21st Century.
Keywords: First Amendment
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