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Author: Timothy Zick

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(Government) Speech Spaces

In terms of free speech architecture, I think the developing “government speech” principle poses some important questions.  Under this principle, some spaces are principally reserved for government speech rather than public discourse.  Are government speech spaces exceptions to the doctrine Marvin otherwise views optimistically, a separate aspect of speech architecture, not part of speech architecture at all, or simply products of a flawed doctrine or principle? 

I recognize that at this point the governmental speech architecture is not very well-developed.  But its foundation is coming into clearer focus.  In some spaces, including the workplace and a small public park in Pleasant Grove City, Utah, the Supreme Court has exempted certain government decisions from free speech scrutiny on the ground that the spaces do not function as forums for public speech, but rather as government speech spaces.  As I have argued elsewhere, at least on a conceptual level the Pleasant Grove decision comes close to turning a traditional public forum into a governmental forum.  Given its uncertain parameters, a host of other spaces might be affected by the government speech principle.  These might include some virtual spaces, such as government websites, that might otherwise serve as forums for public discussion.  Under the developing government speech principle, the more involved the government is in terms of funding, managing, and controlling speech activity in a particular space, the more plausible its argument that access may be denied — even on the basis of content.  

Perhaps this is just a small wrinkle with regard to speech architecture.  Or perhaps the government speech principle will create some significant cracks or holes in the archictecure.  Either way, I wonder what, if anything, Marvin thinks this doctrine says about the government’s relationsip to speech spaces.

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Architectural Trusteeship

With regard to traditional public forum spaces, the Supreme Court has imposed certain duties on governments as “trustees.”  These duties include a responsibility to ensure access to public parks, streets, and (most) sidewalks, and adherence to a principle of anti-discrimination (although it may not include a duty to preserve any forum spaces in perpetuity, or require diversity of speech or speakers).  The trusteeship principle is problematic in the sense that it continues what I (and others) believe to be the categorical error of treating forum doctrine as a matter of property principles, rather than deeper spatial concerns.  However, the principle does provide a basis for imposing some obligation on government to open, maintain, and perhaps preserve certain spaces.

In an earlier post, I noted some of the benefits of Marvin’s broad conception of spatial architecture.  Here I raise a potential complication.  With regard to public forum spaces, the trustee concept arises principally from the fact of governmental ownership and the need for minimal access for exercise of fundamental rights of speech, assembly, and petition.  Trusteeship is rooted in the special nature of these places, in particular their historical connection to First Amendment liberties.  I wonder what normative or other basis exists for treating other speech spaces in a similar manner.  In other words, on what basis can government be said to have an obligation (whether judicially enforceable or not) of some sort to open and diversify not only traditional public forum spaces but  new spaces, virtual spaces, private spaces, and regulated (but not publicly owned) spaces?  I undertand from Marvin’s account that the doctrine can be interpreted to support this result, and that legislators can be “constitutional norm entrepreneurs.”  But to impose or argue for diversity, sufficiency, and other requirements across a broad range of channels and spaces, don’t we need a trusteeship principle, or something like it, for the entire architecture?  Can one be found in, or fashioned from, doctrine or other sources?

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Speech and Spatiality

I too want to thank Danielle and Concurring Opinions for hosting this discussion.  I think Marvin has addressed a really timely and important topic, speech spaces and architecture, in his forthcoming article.  As readers can tell from his posts here and elsewhere, and from reading the piece, Marvin challenges a fair amount of what passes for conventional wisdom in the free speech area.  I look forward to discussing his thesis and some of its implications.  In this post, I want to address why the framing of the issues Marvin addresses as distinctly spatial ones is critically important.  

In my own work on speech and spatiality, I have focused on the importance to freedom of speech, assembly, and petition of access to public parks and plazas (public forums).  Marvin’s conception of speech spaces is much broader.  It includes not only these traditional forums, but various channels of communication.  Thus, he provides an expansive conception of free speech spaces, one that extends far beyond my own conception of the “expressive topography.”   Under Marvin’s conception, newspapers, broadcast and cable stations, the U.S. mail, and the Internet are all speech spaces.  Thay are part of our expressive architecture.  By treating these channels as spaces or places rather than simply mediums of expression, Marvin begins to push against traditional conceptual boundaries.  By framing the discussion in terms of spataility, he begins the process of rearranging conceptual, theoretical, and doctrinal boundaries.   

The central payoffs from this conceptual framing are two-fold.  Read More

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An Anthem for OWS?

The “Occupy” movement, which started in September, made this an esepcially timely guest visit for me.  My thanks to Danielle for inviting me, to the CoOp regulars for allowing me to make use of their terrific forum, and to those who commented on my posts. 

I’ll close with this:  If “I Am America,” sung by Krista Branch, is a plausible Tea Party “anthem,” then what anthem might be appropriate for OWS?  If, as Frank Pasquale has observed, there is considerable substantive overlap between these movements, might this be an anthem for both

The lyrics:

Pay no attention to the people in the street
Crying out for accountability
Make a joke of what we believe
Say we don’t matter ’cause you disagree
Pretend you’re kings, sit on your throne
Look down your nose at the peasants below
I’ve got some news, we’re taking names
We’re waiting now for the judgment day

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

There is still work that must be done
I will not rest until we’ve won

I am America

You preach your tolerance, but lecture me
Is there no end to your own hypocrisy
Your god is power, you have no shame
Your only interest is political gain

You hide your eyes and refuse to listen
You play your games and abuse the system
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the light, I am America

[Bridge]
You stuff your pockets while Rome is burning
I’ve got a feeling that the tide is turning

[Chorus]
I am America, one voice, united we stand
I am America, one hope to heal our land

I will not give up on this fight
I will not fade into the night, I am America

 

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Censoring the Internet

There are reports that WikiLeaks may have to shut down owing to financial difficulties.  That will please many, like Vice President Biden, who think Julian Assange is nothing more than a high-tech terrorist.  If Assange’s explanation is to be credited (and I recognize this is a big “if” for some), the website’s financial difficulties stem from a concerted effort by U.S. officials to pressure financial intermediaries (i.e., PayPal, Master Card, Visa) not to permit donors to utilize their sites to make donations.  Some may recall that when WikiLeaks first began publishing confidential information about U.S. war operations and diplomacy, some government officials publicly called on these intermediaries to block donations.  This, in turn, led to denial-of-service reprisals by hackers against the cooperating intermediaries.

In a very interesting recent article entitled Orwell’s Armchair, Derek Bambauer (Brooklyn Law) argues that governments have turned to persuasion of intermediaries and other indirect forms of “soft censorship” to control Internet content.  Bambauer argues that through these indirect methods, government officials are engaging in a form of Internet censorship that is often as or more effective than “hard” forms of legal censorship.  Focusing on issues of transparency, breadth, and accountability, Bambauer argues that, in general, soft censorship is less legitimate than hard censorship.  He urges, perhaps counter-intuitively, that the government ought to proceed by way of statute if it intends to censor or regulate content on the Internet.

My point here is not to assess the merits of Bambauer’s proposal.  I’m more interested in his descriptive claim — namely, that despite all the talk in the U.S. of a free and unfettered Internet, the U.S. government is indeed “censoring” content in this space.  I think the WikiLeaks case highlights one of the most pressing concerns in what I refer to in a forthcoming article as the “emerging global theater.”  Faced with diminished power to control the flow of information on the Internet, officials in the U.S. are naturally seeking other means by which to regulate certain types of harmful content (i.e., IP infringement, terrorist advocacy, disclosure of government secrets).  Many of these means are, as Bambauer claims, less transparent than legislation or administrative regulation.  We can debate whether certain forms of “soft” censorship constitute state action, or even “censorship.”  However, there is little question that what Bambauer refers to as the government’s “toolkit” for influencing the content Americans and others have access to on the Internet contains a set of “soft” components; these will become increasingly important in terms of online content control in the years to come.  Methods of “soft censorship” will not likely result in absolute suppression of content.   One of the things the government is learning is that content does not simply disappear from the Internet, even when the speaker is jailed or executed.  However, both soft and hard forms of regulation can still have a signficant effect on the free flow of online information.  Bambauer’s article is important insofar as it nudges us to think more carefully about different forms of content control in cyberspace.

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OWS, Discourse, and Narratives

One of the fascinating things about the nascent movement on Wall Street and elsewhere is the attempt by various groups to characterize and to some extent normalize it through devices of discourse and narrative.     

Media outlets prefer clean and concise narratives.  In terms of substance, they want to be able to report on the specific, concrete demands of a group or movement.  The OWS demonstrations have obviously been frustrating in that regard.  In the absence of a concrete slogan or message (and sometimes despite one),  the media tend to resort to a bias in favor of conflict reporting.  They focus on confrontation with police, or highlight fringe elements in the group.  There has been plenty of this kind or reporting, and fake reporting (e.g., The Daily Show), concerning the OWS demonstrations.  Many pundits and commentators have offered serious proposals in terms of potential OWS agenda items.  The political right and left have their own narratives.  As the New York Times put it:  “The take on the right is that Occupy Wall Street is the same old riffraff of leftist anarchists, unlike the grass-roots conservative Tea Party; seen from the left, it’s an authentic uprising against the huge income disparity in America and a call for redistributing the wealth.”  The comparison to the Tea Party was inevitable.  Although each protest movement is unique, many seek to make sense of new movements by referring to movements of the recent, and even distant, past.  Historical narratives can be somewhat helpful in terms of situating and understanding new movements.     

Constitutional law professors have their own preferred discourse with respect to social movements.  As I discussed in my last post, Jack Balkin has suggested that the OWS demonstrations could be framed as a constitutionally-inspired movement.  Whether the roots are in the Guarantee Clause, as Balkin suggests, or the Preamble, which I offered as a plausible list of OWS concerns, engaging in this sort of discourse may be something of an occupational hazard.  Of course, Balkin and I may genuinely think we see a connection to the Constitution in the OWS protests.  However, the truth is that this is a convenient and familar discourse for constitutional scholars.  It allows us to talk about OWS in a way that makes sense to us, in a language rooted in constitutional text and expertise.  As Paul Horwitz and others have observed, however, focusing on constitutional dicourse and pressing this kind of narrative on the OWS movement may not be wise or particularly healthy in terms of public discourse.  As the Tea Party’s success has demonstrated, rooting a movement in the Constitution provides a structure for arguments and a narrative that many find attractive.  However, not all movements are about the Constitution.  Not all protests make substantive constitutional claims.  

The basic desire to understand and frame the OWS demonstrations is perfectly understandable.  This is how people generally tend to make sense of seemingly unique phenomena — by comparing them to similar phenomena, or situating them in a familiar narrative or discourse.  Perhaps, though, we ought simply to give this potential movement, like others, the necessary breathing space to channel its anger and resentment into a coherent set of political and social (and perhaps constitutional) claims.  This requires someting ubiquitous media and the blogosphere make extremely difficult — namely, the patience to allow the protesters to engage in speech, peaceable assembly, and petition and to listen through the clatter that attends public protests to their specific complaints.  At this point, no one knows which narrative best fits this movement — or even whether it will eventually become a movement.  There may be kernels of truth to the media narratives, the left/right narratives, and the constitutional discourse.  We ought to listen to OWS supporters’ complaints, to gauge their frustration and the extent to which it is shared by other Americans, and to try to understand the implications of their grievances.  As the Times put it:  “When a cold Washington [or New York] winter arrives, most of these tents are likely to fold up. It’s not as likely that the sentiments will disappear.”     

 

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OWS and the Constitution

Jack Balkin suggests that the Occupy Wall Street (OWS) demonstrations are, or at least could be, rooted in the Constitution.  Balkin suggests that OWS’s complaint is partly about Citizens United and the perceived corruption of the political system by corporate interests.  On a deeper level, he suggests, OWS’s complaint is that there has been a systemic failure of government — a denial of a “Republican Form of Government.”  Thus, Balkin suggests, OWS is rooted in Article IV’s Guarantee Clause. 

The fact that the movement could be about the Constitution does not mean that it ought to be, or that this is the most effective means of garnering public support for its agenda.  Many successful social movements have rooted claims in constitutional text and principle.  The Tea Party is only the most recent example.  The Tea Party’s complaints map very well onto current debates over thinkgs like the extent of federal power and federalism.  As Balkin and others have noted, the Tea Party has been successful at taking some claims that seemed “off the wall” and putting them, as Mark Tushnet perhaps more appropriately suggests, “on the table.” 

This may not work quite as well for OWS.  One can certainly think of constitutional arguments that have been in the cabinet, or on the shelve, that OWS might want placed back “on the table.”  Among these might be arguments for positive or affirmative fundamental rights to housing, subsistence, health care, and education.  OWS supporters might support measures that level the playing field with regard to expression, such that “poorly financed causes” have equal access to media and communications channels and the influence of corporate wealth on politics would be diminished or eliminated.  And, of course, they could define their movement in anti-Tea Party terms — i.e., by keeping some constitutional arguments “off the table” and supporting the broad constitutional powers to spend, tax, and regulate commerce that Congress has possessed and exercised since the New Deal.  The former arguments are likely to stay off the table, in part because they have no political traction in Congress or in state legislatures.  Among other difficulties, defining themselves as an anti-Tea Party constitutional movement allows the Tea Party to define the agenda and set the terms of debate.  

OWS might become a constitutional movement.  It might, as Balkin suggests, find some purchase in the Guarantee Clause (although that provision seems not to translate well as a political slogan or platform).  At this point, however, I think the part of the Constitution that speaks to OWS’s concerns most directly is its opening passage — the Preamble.  

We the People” . . . in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution of the United States of America.” 

These fundamental principles seem to reflect what the protesters are most concerned about.  This is a nascent populist movement.  I’m sure if they were polled, the “99 percent” would embrace the notion of a “Republican form of government.”  But they would embrace that principle because it is supposed to produce “a more perfect” union, justice, tranquility, general welfare, and the “blessings of liberty” across generations.  OWS supporters seem less concerned with the specifics of campaign finance law or principles of republican government than with their loss of employment and security, the decline in economic and social welfare, and the dimming prospects for cross-generational enjoyment of these and other Blessings.  They blame the structure of government, but only in part.  They lament what they view as a fundamental breach of the social contract — by their government, corporations, and fellow citizens.  That’s a constitutional argument of sorts, but I think it’s also a more fundamental complaint about the current state and direction of social and economic welfare in the U.S.      

Addendum:  Over at Balkinization, Jason Mazzone and Jack Balkin debate the meaning of the Guarantee Clause and its relevance to OWS – here, here, and here.                      

 

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The Occupation — Place, Balance, and Proximity

Today is the one-month anniversary of the Occupy Wall Street demonstration.  It is fair to say that the media, a decent portion of the American public, and many people abroad are now paying attention.  There is still, of course, no guarantee of long-term success or longevity.  However, to  sustain something like the occupation for more than a few days, much less several weeks, is nothing short of remarkable. 

Mayor Bloomberg has publicly stated that he wants  to protect protesters’ speech and assembly rights.  But he recently suggested that “the Constitution does not protect tents . . . It protects speech and assembly.”  That’s right.  But the tents in Zuccotti Park are not on public property.  Whether they knew it or not, the protesters may have chosen their contested place very wisely – the private owners of Zuccotti Park have been slower to move against the protesters than the City might likely would have been.  In at least one locality, officials reportedly closed a public park in response to an “occupation” protest.  Judging from the police response to the occupiers, and from other limits imposed by the Bloomberg Administration on public assemblies and demonstrations, it seems clear that the City would have intervened if it owned Zuccotti Park.  Unless and until the trespass laws are enforced against the protesters, the City is not likely to seek to remove them.  It’s property law, not the First Amendment, that has thus far determined whether the protesters have a right to be in Zuccotti Park. 

Hizzoner made another interesting statement about the occupation recently.  He expressed concern that the occupation had adversely affected other citizens’ “right to be silent.”  Elaborating, Mayor Bloomberg said: “We can’t have a place where only one point of view is allowed. There are places where I think it’s appropriate to express yourself, and there are other places that are appropriate to set up Tent City. They don’t necessarily have to be one and the same.”  How exactly is this public demonstration affecting those who want to remain silent?  Are the 1% somehow being silenced by the nature and scope of the occupation?  Are those who disagree with the protesters unable to mount a counter-protest?  A recent poll indicates that 72% of NYC voters support the occupation so long as it remains peaceful.  Are the viewpoints of the other 28% not being heard?   

If the Mayor is suggesting displacement of the occupation, he’s missing the point of proximity.  The occupiers are making powerful symbolic use of a location near Wall Street.  They are contesting place to reclaim something they feel has been taken from them.  Relocating the occupation would not “balance” viewpoints.  Rather, it would deprive the ocupiers of the principal means of conveying their message.            

 

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The Power of Place

Michael Kimmelman, the architecture critic for The New York Times, has an interesting piece in this morning’s Sunday Review about the manner in which the Wall Street protesters are using and creating public space.  The piece picks up many of the themes examined in Speech Out of Doors — the connection between medium and message; the human and social connections people have to actual places; the role of technology in mass public demonstrations; the solidarity and communicative values associated with public places; and the manner in which public places are inscribed with messages and memories.

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Stolen Valor Act Discussion

In its Community forum, SCOTUSblog is hosting a discussion on the Stolen Valor Act, which criminalizes false statements regarding receipt of military decorations, medals, and awards.  The Supreme Court will dicsuss the cert. petition in United States v. Alvarez, which invalidated the Act on First Amendment grounds, at tomorrow’s conference.  I’ve posted a comment on the issues raised in Alvarez in the discussion thread.