The Year in “First Amendment Architecture”

2011’s “Person of the Year,” according to Time Magazine, was “The Protestor.” That year, protestors across the world led and persisted through the historic Arab Spring. From Tunisia to Egypt and beyond, these protestors may have spawned a democratic awakening in the Middle East. They took to physical spaces like Tahrir Square in Cairo and to virtual spaces on Facebook and Twitter to express their dissent and assemble against undemocratic regimes. Closer to home, in response to economic turmoil, the perceived unfairness and cronyism of the bank bailouts, and the perceived corruption of our political system in the wake of the Supreme Court’s Citizens United ruling, protestors led the Occupy movement, holding demonstrations in spaces across the nation. They protested at Occupy Wall Street in New York’s Zuccotti Park, at Occupy K Street in DC’s McPherson Square, as well as Occupy San Antonio and Occupy Los Angeles, among hundreds of other spaces. The protestors did not speak in physical spaces—they organized virtually. Occupy Wall Street famously began with a tweet—just as the Arab Spring began with a video. Occupy managed to shift America’s political center of gravity away from the Tea Party discourse of 2010 and change the political scene in DC (much as the Tea Party had previously done so through protests in public spaces nationally).

The many Occupy protests were part of a larger movement at home. Activists also flocked to Wisconsin’s state capital in support of teachers unions and teachers’ deferred compensation against controversial cost-cutting proposals made by the state’s governor. Protests erupted on college campuses such as the University of California, Davis, where police officers infamously pepper sprayed peaceful protesters who withstood the officers and chanted at them, “This is our space, not yours.” And virtual speech spaces, in particular cell phone networks in San Francisco subway stations, were targeted by the city’s police, who shut down the systems to thwart a protest. This action prompted a public debate in newspapers, radio stations, and television networks regarding the scope of First Amendment protection and interpretation of forty-year old precedents in the age of cell phones. In all these examples, the right to freedom of speech would have been meaningless without access to physical and virtual spaces to speak.

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. In a post-Lochner jurisprudence, such judicial roadblocks should give way to government attempts to further the First Amendment interests of more Americans being able to participate in our democracy.

Judicial doctrine should require access to spaces such as Zuccotti Park and public squares. Today, the “openness” of Zuccotti Park seemed to rest on a legal loophole rather than carefully considered constitutional judgment. It should also permit government wide latitude to regulate private spaces—including the communications networks supporting virtual spaces—without an exacting flavor of “Turner scrutiny” that the courts have sometimes wrongly imposed on rules opening up the cable platform. Not only should the courts defer to government attempts to promote additional speech spaces, and not only have courts historically done so since the founding of the Republic, but there are good reasons for courts not taking even more aggressive roles determining the rules and regulations governing virtual speech spaces. Professor Gregory Magarian has made strong arguments for judicial policy-making for speech platforms, but I doubt courts have the competence to do so.

The core question we should focus on is whether all Americans have plentiful spaces for speech, access to diverse sources of speech, and the ability to participate in public discourse. This past year, millions of people expressed their political dissent to the powerful in physical and virtual spaces. The question of what kind of democracy we should have—a question asked here and in nations around the world—is a question we do not answer once and for all. We struggle to give answers every day through personal and collective decisions. Determining the scope of our individual free speech rights, and the general architecture of our free speech system, is fundamental to determining the kind of democracy we are capable of achieving.

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.

This article consists of four parts. The first part presents the example of a concrete, high profile legal question. The second discusses how our conventional normative framework would address that concrete question or similar questions. The third provides evidence for a different normative framework rooted in overlooked but important principles in our free speech tradition. The fourth argues those principles as worth defending.