Speech and Spatial Tactics

Abstract

In these politically and culturally divisive times, the government has increasingly relied upon spatial restrictions or tactics to control protest and dissent. Those wishing to publicly dissent are now routinely confined to zones, cages, pens, and other designated areas. Architectures like the protest cage constructed at the 2004 Democratic National Convention, a structure likened by the courts to an internment camp, are being designed and built to contain public protests. In an increasing number of public contexts, including war protests, political campaigns, and university campuses, protesters are being separated from their intended audiences by spatial buffers. Dissent is being confined to free speech zones. Public officials are traveling in protective bubbles.

These spatial tactics are fundamentally altering our expressive topography, and with it some of our most fundamental expressive and associative rights. Yet they are generally subject to minimal judicial scrutiny. This is so in large part because the traditional, indeed exclusive, conception of place in First Amendment jurisprudence is as property, thing, res. Under this conception, place is viewed as subject to simplistic categorization; secondary to expression; brute or given; and inert. This Article contends that place, properly understood, is in fact none of these things. The Article is the first in a series to re-examine the concept of place as it relates to First Amendment concerns. Borrowing ideas and concepts regarding place from scholarship in a number of disciplines, among them anthropology, sociology, philosophy, and cultural geography, the Article re-conceptualizes place as distinctly expressive. In contrast to place-as-res, expressive place views place as highly variable and complex; primary to expression; constructed; and dynamic.

Spatial tactics are re-examined with reference to this distinct conception of place. Spatial tactics create tactical places. These places, not places like streets, sidewalks, and parks, ought to be the focus of First Amendment inquiry. Tactical places have unique origins, properties, and effects on associative and expressive rights. They are a means of subtly and without force rendering protests and social movements docile and immobile. These tactics and places express something - both to those within and those without their boundaries. Spatial tactics are thus far from mere run mine regulations of the place where expression may occur. Consequently, courts must reconsider the manner in which these, and other, spatial regulations are reviewed under the First Amendment.

Keywords: speech, expression, place, forum, geography, Foucault, space

JEL Classification: K1, K19