Author: Marvin Ammori

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Brett’s Big Book

Brett Frischmann strikes me as the Sonic Youth of law professors. You might not know any Sonic Youth songs, but when you read interviews of your favorite artists, they all mention Sonic Youth as a huge influence on their own sound.

That is: Brett influences the influencers.

A few years back, Larry Lessig wrote a law review article responding to one of Brett’s early pieces on infrastructure and telecommunications. Brett followed up with pieces co-authored with leading communications scholar Barbara van Schewick and leading patent guru Mark Lemley. The others taking part in this symposium are a who’s who of heavy hitting thinkers in the field, from Georgetown’s Julie Cohen and Columbia’s Tim Wu to top Google lawyer Rick Whitt.

The uninitiated may wonder: what’s all the fuss about?

Brett does something in this book and in his work on infrastructure that is truly novel and very important. (Yes, all books and articles claim to be novel and important; Brett’s actually is.)

I think the most valuable contribution is that his economic analysis of infrastructure helps expose many of the flaws in our current thinking about the law and economics. While many argue that defining property rights and internalizing externalities are essential for economic growth and effective markets, Brett demonstrates that regulating some resources in commons and encouraging the “externalizing” of positive externalities (or spillovers) often leads to greater economic growth and more robust markets.

As a result, Brett’s ideas challenge conventional law and economics thinking in a profound way, but do so based on the premises and tools of economic analysis. They also do so based not on hypothetical markets but on examples of infrastructure that we use every day and can relate to. For those who have come to believe that much of traditional law and economics appears stylized, inaccurately frictionless, and out of sync with reality, Brett’s insights are eye-opening (and refreshing). They point the way forward for economists and policymakers to do better. Hopefully, his ideas influence those influencers.

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A More or Less Ambitious Argument about First Amendment Architecture?

Thanks again to all who have participated in the online symposium on First Amendment Architecture and to Danielle Citron for inviting us on.

For this likely last post, I discuss some thoughts on challenging the negative-liberty model and incorporating media and physical spaces. I present these thoughts in light of suggestions by several scholars that Architecture is, in different ways, either too ambitious or not ambitious enough.
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Free Speech Architecture: Normative Aspects (#8)

In seven posts (available here), I have set out the arguments in First Amendment Architecture. This post covers arguments made in the last 25 pages of that article, the normative and theoretical arguments.

In doing so, this post examines the implications of these principles both for how courts should decide future speech cases (that is, normative doctrinal implications) and for what the First Amendment “means” (that is, more theoretical implications).

We’ll begin with doctrine.
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Private Property and Public Speech

Marc, Zephyr, and Tim (as well as Derek) have presented a number of interesting insights and challenges in the past few days regarding our First Amendment Architecture symposium. On Friday, I debated the article with Lillian BeVier and Yochai Benkler. They raised some other important points, as well as some overlapping concerns—regarding property, negative liberty, and digital communications infrastructures.

I will present some thoughts, first, on the relationship between property and speech. All the posts discuss the relationship between speech and property to some extent. And Lillian BeVier played the role of my article’s “opponent” absolutely perfectly and effortlessly (without even acting) partly because of her defense of property rights against speech trumps.
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Free Speech Architecture – Responses

I am excited about the great points made so far here on Concurring Opinions, and want to again extend my thanks to Danielle and everyone who has participated. I’m speaking on the paper in a few hours, and then plan to engage the points made by Marc, Tim, and Zephyr. I hope we’ll be able to continue these discussions well into future.
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Free Speech Architecture: Universal Access to Speech Spaces (#7)

So far I have discussed four principles concerning speech spaces (and Brett has added one). This is the fifth principle concerning speech spaces that I set out in my recent article. The First Amendment encourages access for all Americans to physical and digital speech spaces, even if the “unregulated” speech market would not provide access to many speakers. Those that benefit most from government efforts to expand universal access to speech spaces are speakers in rural areas or those without extensive means.

The traditional public forum doctrine, of course, promotes universality. Streets and parks are open to all, and they provide small, unpopular, or poorly financed speakers with an opportunity for a forum. These speakers often won’t have access to other speech spaces, like broadcast channels or newspapers. But government’s work towards achieving universal speech spaces has not been limited to public forums.
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Distinguishing Magarian’s “Ought” from Ammori’s “Ought”

Timothy Zick and Greg Magarian make some great points in their recent posts. For those unfamiliar with Zick or Magarian, they are two of the most important and insightful thinkers writing about the First Amendment today, evidenced even in these brief posts. I’m going to respond to Greg’s first.

Greg’s piece accuses me of being overly optimistic, and for misinterpreting First Amendment precedent and doing so for (misguided) strategic reasons. He assures us that First Amendment precedent is awful and getting worse. He says I should just admit as much, and that I should argue merely that the precedent “ought” to be better, not that it “is” any good at all. And his examples of the awfulness of doctrine include Citizens United (which I disagree with, but don’t dwell on as it is not so clearly “spatial,” the focus of the paper) and also points to the public forum cases.

We agree in part actually, but disagree in part. Here is where I disagree: I am more likely to celebrate what the doctrine is but not out of misguided strategy but because he thinks doctrine ought to be something different from what I think it ought to be.

A few years go, Greg and I had a discussion over dinner. At that dinner, he said that the courts should impose media access rules directly, based on the First Amendment alone, whether or not a law would create that access rule. I said that generally such access rules should be permissible, but not judicially required. My argument was based partly on institutional competence: judges are not really expert in media policy. Judges and clerks are not at the top of my list for people who should devise spectrum policy or  draft the communications regulations. And I think the public should indeed be more involved in making such decisions of designing our speech systems–and other institutions are designed to be more responsive to the public. Greg thinks courts ought to impose access rules and other rules; I think, subject to some limits, courts ought to defer to a range of permissible decisions by legislatures and agencies about such rules. This is why Greg takes me to task for celebrating the shopping mall case: I am less troubled that the courts did not directly impose access for speech but merely permitted governments to enact laws requiring access.

This is why Greg says, “But when the Supreme Court faced the question whether the First Amendment required shopping centers to tolerate expressive activity, the Court said no.  So yes, First Amendment law sometimes steps out of the way of voluntary government efforts to advance speech interests over other interests.” To me, that is important. Courts and lawyers often argue (or assume) that the First Amendment flat out forbids government from opening new spaces for speech–particularly digital spaces.  That the First Amendment does not forbid such action says something about the First Amendment–just as it not requiring access to shopping malls says something about the Amendment. And, in my opinion (and in that of some others), this permissiveness contradicts the notion that government must not pursue substantive speech-based goals, such as opening speech spaces, when they interfere with the speech market. For Greg, such permissiveness “doesn’t contradict or even complicate the negative liberty paradigm,” but I see it differently.

Finally, we do agree on a few things. The doctrine as it is could be better. I don’t think it’s perfect and it is certainly not getting better, but there are important strains in the doctrine, particularly regarding government discretion to promote diversity of sources, universal access, national and local speech, and simply additional speech spaces. There are far too many cases in our First Amendment tradition that uphold censorship. Far too many cases enable government to silence speech based on content-neutral reasons (something Tim has argued forcefully in his work on public spaces). And I am almost ashamed to engage in any comparative institutional analysis–weighing whether the Supreme Court is a better decision-making institution than the Congress is like asking whether the institution that brought us Bush v. Gore, Citizens United, and Holder v. Humanitarian Project should be trusted more than the institution, Congress, with a 9% approval rating that brought us the debt ceiling fiasco, nonstop gridlock, that recently rushed to pass a censorial copyright bill before being derailed (and had passed immunity for warrantless wiretapping and provided the president with the power to hold US citizens indefinitely without a trial).  Still, for reasons mentioned above, regarding the permissibility of opening speech spaces for speech, I am willing to be more optimistic than my friend Greg, though he does provide some excellent reasons for pessimism.

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Free Speech Architecture: Spaces for National & Local Speech (#6)

At our nation’s founding, the framers of the Constitution faced a formidable challenge: creating a national democracy that would bind together thirteen diverse and autonomous states spread over a large geographical area. In 1787, the only successful historical models of democratic governance were small, tightly knit units, such as the ancient Greek city-states. No nation had ever succeeded in maintaining a democracy on such large and disparate turf as the thirteen colonies. James Madison argued that size actually favored democracies, as large countries were less likely to fall subject to “faction.” Federalism was another important answer to the question. But a less heralded answer was aggressive pursuit of promoting a national identity and national unity, while still preserving the independent, unencumbered character of local spaces. Ensuring both national unity and local forums would pose a challenge.

But early American leaders did not rely merely on an “unregulated” speech market and negative liberty.

Rather, American leaders established speech policies that consciously furthered two distinct purposes: the promotion of some speech virtual speech spaces to unify the nation and the promotion of others to preserve local communities. These affirmative goals illustrate the fourth principle evident in precedent, a principle that has been almost completely overlooked in First Amendment literature.
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Free Speech Architecture: Access for Diverse & Antagonistic Sources (#5)

In the previous posts, I argued that First Amendment precedent guarantees minimal access to certain essential speech spaces (like streets and parks) and permits government to pass laws opening additional spaces (from designated public forums to shopping malls to digital spaces). But Supreme Court decisions historically endorse access not merely for a few, homogenous voices. The Court has repeatedly recognized that the First Amendment’s “basic tenet” is that “the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.”

Following that basic tenet, courts generally do not require government to “stay out” of speech. Rather, courts permit government to pursue the substantive speech goal of promoting diverse sources on physical and virtual spaces opened for speech.  In practice, since the nation’s founding, legislative policies have been important to ensuring that Americans have been exposed to diverse speech sources.
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Free Speech Architecture – Legislated Spaces (#4)

The previous post in this series discussed the First Amendment’s requirement that individuals have access to at least some minimal spaces for reflection and discourse.

But access to speech spaces doesn’t stop at these limited areas required by courts interpreting the First Amendment. State and federal governments frequently choose to designate additional spaces as special zones for speech, and they do so with the intent of promoting specific speech goals. Far too often they attempt to close spaces for speech, something that Tim Zick has highlighted in his very important work. But, at the other end, when governments attempt to promote additional spaces for speech, the Supreme Court has sanctioned the pro-speech policies.

With judicial approval, the government has a long history of promoting access to speech spaces. Under the designated public forum doctrine, a state or federal government can open up additional publicly owned spaces for speakers. A government may also pass a statute guaranteeing free speech on certain privately owned spaces generally open to the public. In 1980, the Supreme Court held that states may declare private shopping malls essentially to be designated forums for speech. While the owner of the mall claimed that its speech rights were infringed by opening the space to others’ speech, and while the case conflicts with a notion of “negative liberty,” the decision was unanimous.

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