As I wrote in my previous post here, there are already some familiar aspects of First Amendment law — acceptable to “negative liberty” proponents – that protect not just speech itself, but the architecture that makes it possible: They defend our expressive environment against any government censor’s attempts to redesign it in a way that hampers speech. Prevented from jailing a speaker they’d like to silence, officials may not simply find a more indirect method of silencing him – by, for example, forbidding him from [...]]]> I’m hoping to hear more soon about the discussion at Friday’s First Amendment architecture panel in the Stanford Technology Law Review Symposium. But in the meantime, I’m looking forward to continuing our own discussion of Marvin’s ideas here on Concurring Opinions.

As I wrote in my previous post here, there are already some familiar aspects of First Amendment law — acceptable to “negative liberty” proponents – that protect not just speech itself, but the architecture that makes it possible: They defend our expressive environment against any government censor’s attempts to redesign it in a way that hampers speech. Prevented from jailing a speaker they’d like to silence, officials may not simply find a more indirect method of silencing him – by, for example, forbidding him from using a printing press or other means necessary for speech, or denying him access to the parks or other traditional public forums that provide citizens a public space from which to communicate.

So given that these long-standing features of First Amendment law protect our expressive environment, what might Marvin add by illuminating the “architectural principles” of First Amendment law? The answer, I think, is quite a lot – and I’d like to begin by considering two different respects in which it does so.

First, one possible contribution is more theoretical than doctrinal: Rather than telling us what free speech law should do differently, it helps reveal the implicit logic for what free speech law already does right. The architectural principles that Marvin lists might help us make better, sense, for example, of why our existing free speech law identifies – and strongly protects – our access to “traditional” public forums, as parks and streets, but offers speakers a far more limited and fragile protection in forums created not by tradition, but by government. The first set of forums – the parks and streets – is necessary to satisfy the “sufficient, required spaces” principle. These forums have to be open to people if democratic deliberation and other public discourse is to survive at all. What government contributes beyond this initial core, on the other hand, might be essential for public discourse to flourish, but isn’t essential for it to survive. Thus, on Marvin’s account, these “additional” “designated” spaces are something the First Amendment empowers legislatures to create, but generally not something that it allows judges to impose upon society over the objection of democratic majorities.

Such an architectural account of expressive spaces is helpful because it helps explain how a type of space may come to be a “traditional” public forum even in the absence of an indisputable tradition of unhindered speech: Courts might find evidence that, for First Amendment discourse to have the minimal space it needs, openness in parks and streets is absolutely necessary even if it is not historically entrenched. This may explain, for example, why Justice Robert decided– in his Hague v. CIO opinion – that parks had been free speech platforms from “time out of mind” when, in fact, American park managers had sometimes acted in ways that showed little awareness of, or adherence to, any such tradition at all, forbidding (as Galen Cranz has written) political and religious debate in their parks in order to assure that these spaces remained sites of quiet serenity. He and the Justices who followed his example may have felt that, in a society committed to free speech, people need some public space where their speech is strongly insulated from government restriction, and if history and tradition have not unambiguously provided one, then the Court may still do so with a little bit of creative rereading of history.

Second, with such a theory in hand, we might go beyond just explaining why certain features of First Amendment law are the way they are, and suggest doctrinal improvements. It’s possible one could do this by using the architectural principles to rework existing public forum doctrine. Marvin’s focus, however, is elsewhere. It’s not primarily on whether and when we can access physical space – although he certainly has something to say about that in the article – but rather on when we can voice controversial views in virtual and electronic space by posting material on the World Wide Web, or by sending a provocative Tweet, text message, or e-mail. As Marvin recognizes, and as other First Amendment scholars – including those joining in this discussion – have pointed out, this question is not one that can easily be answered by public forum doctrine for at least two reasons: (1) such electronic spaces are relatively recent and cannot plausibly be characterized in the way that Justice Roberts and others have characterized parks and streets – as place that have been open to robust, unconstrained debate from “time out of mind” and (2) the authorities that govern, and have the power to remove, content from such spaces are private entities like ISPs or media companies, which can and do assert their own First Amendment rights. Other scholars have proposed ways of addressing meeting such hurdles. In fact, they have been doing so for quite some time: It has now been over forty years since the publication of Jerome Barron’s classic article arguing for a “right of access to the press” and for ways to overcome the “non-governmental obstructions” that media concentration creates for robust debate. Access to the Press – A New First Amendment Right, 80 Harv. L. Rev. 1641, 1643 (1967).

But it seems to me that Marvin’s analysis of First Amendment architecture might help us tackle this familiar problem from a new angle. In fact, while Marvin – like others who’ve argued in favor of letting legislatively imposed access rights – pits his own ideas against the “negative liberty” conception of the First Amendment, it seems to me that his proposal might be strongest when it is viewed as a more modest departure from that conception. For one thing, Marvin’s argument seems to me to be more consistent with a kind of free speech pluralism (and agnosticism) than are some other arguments for media- or Internet access rights. Unlike some scholars who build a case for such access rights on First Amendment first principles –for example, the idea that a need for robust democratic deliberation should trump media companies’ right to speak in their own voices – Marvin’s argument is about architectural principles that are arguably more theoretically modest: One might insist on “sufficient” space for speech – both in the physical brick-and-mortar world, and in the virtual realm in which communication and expression of all sorts increasingly take place – and do so without laying any litmus test regarding the purposes that such speech should serve. A demand for a certain free speech architecture, in other words, might allow one to generate an “incompletely-theorized” case for imposing certain speech-protecting rules on ISPs or communications companies. And Marvin seems to use architecture in this way when he explores how First Amendment architecture might advance not one – but multiple – First Amendment ends (primarily, democratic decision-making and individual autonomy). Thus, while Marvin spends much of time critiquing the negative liberty model — perhaps because it is the champions of that view who have argued most vigorously against Net Neutrality and other limits on the decisions that communications companies about the service they provide – it’s possible that the approach he is building can be incompletely-theorized enough to leave room for certain key elements of the negative liberty approach. (Of course, since as Larry Lessig argues, “[s]paces have values. They manifest these values through the practices or lives that they enable or disable,” Code version 2 (2006), a free speech architecture suitable for First Amendment pluralism has to be one that can accommodate – and enable – expressive activities that serve not simply one, but an array of, First Amendment ends).

Another possible benefit of the architectural approach is that it might help provide us with some guidance as to how to identify – and then protect — a core part of our speech environment, even when one can’t link it with an ages-old historical tradition of openness. At least as I understand Marvin’s argument, the idea is that the key marker of such an environment might be functional rather than historical: The freedom to post Web messages, or send text messages, free of censorship needs to be protected not because we’ve always expected it (we certainly couldn’t before the Web and text messaging), but because such spaces and communications have quickly come to play a central and essential role in the exchange of ideas. To put it another way: If the “parade of horribles” on the first page of Marvin’s article seems – to a modern American –to sketch a society devoid of free speech – if the First Amendment values seem to have no place in the nightmarish world it paints, in which the phone calls and Web postings alike are cleansed of controversial views – then the First Amendment should be understood in way that permits us to erect safeguards against such a state of affairs even if we can’t find precise analogues of those safeguards in the nineteenth and early twentieth century. To be sure, Marvin seems to be arguing that we actually can find at least some important analogues of such safeguards in that era – in the postal service and common carrier rules that developed to prevent content-based censorship of mailings and phone communications – so even if some historical tradition is needed here, we arguably have one. But, at the very least, we can do without a tradition of openness as old as that which the Court has found in the use of parks.

This way of looking at First Amendment law seems to me to parallel the proposed starting point that Anthony Amsterdam once suggested for determining what constitutes a “search”: courts, he said, must make a judgment “whether, if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society.” Although we might draw, when making such a judgment, upon historical examples – we might, for example, ask ourselves what forms of government surveillance American have viewed as a cause for worry – we might also approach this question in other ways, by asking, for example, whether the effects of a new, unforeseen form of surveillance with no good historical analogue (perhaps a GPS or certain kinds of computer searches?) are such that they too deeply erode the type of liberty the Fourth Amendment is meant to secure. Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 403 (1974).

This doesn’t mean it mean that impose architectural demands on private entities is an unproblematic as imposing them on government. Nor does it mean that the application of such principles to actual cases would be straightforward: It’s fair to ask, I think, whether the architectural principles Marvin sets down are too abstract to provide any kind of guidance to courts or citizens – and, if so, what set of lower level-principles might provide more guidance and predictability.  I hope to say more about these questions in at least one more contribution to this interesting discussion.

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Defining a New Punctilio of an Honor: The Best Interest Standard for Broker-Dealers     Nicholas S. Di Lorenzo Page 291

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Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture [...]]]> Thanks to Marvin for giving us such a fascinating and well-done article to debate here – and to Danielle and Concurring Opinions for giving us a virtual space for that debate can happen. I’m grateful for the invitation to join in.

Marvin’s major target throughout his article is the “negative liberty” view of free speech. The First Amendment, he argues, is not only a barrier against official abuse. It is also a constitutional power source that provides a basis for a legislature to do things it otherwise couldn’t do, especially when it comes to safeguarding – or, if necessary, modifying – the “architecture” of spaces essential for communication.

I couldn’t agree more with the article’s claim that the First Amendment law needs to take stock of architecture – and that, it should do so, at least in part, with an eye to “ensuring that Americans have adequate physical and virtual spaces available for speech.” I also agree that, in many cases, freedom of expression relies not solely on courts alone to give it force, but rather on a more complicated division of labor: Courts play an essential role in blocking legislative and other government censorship, but it often falls upon other actors – legislatures, agencies, social movements, sub-cultures – to both protect and nourish individual liberty of thought and expression in other ways. Marvin’s argument impressively answers both of these needs in First Amendment jurisprudence.

This is a significant move, and one I hope gets a lot more attention. But ultimately, I’m not sure that answering such needs requires quite as radical a paradigm shift as the one Marvin proposes. More specifically, I’m not sure that making sufficient room for architecture and architecting requires that we dethrone the negative liberty theory, and replace it with an alternative grand theory of First Amendment architecture. Rather, I’d like to propose that perhaps something a bit less radical, and a bit more theoretically modest, will be good enough – an approach that is aimed not at reshaping First Amendment theory as a whole, but rather as fitting it to a relatively new and challenging problem: namely, the fact that freedom of expression has come to depend heavily on electronic communication networks and virtual environments run by private (rather than government) actors, and with technologies can change more rapidly and jarringly than more familiar free speech architectures.

One reason I don’t think we need to dethrone the negative liberty approach to First Amendment is that – while it may well be inadequate to the task Marvin has his sights on – it gets us at least a decent part of the way there, and then even further along the path when it allows room for public forum doctrine.

Those who espouse the negative liberty approach are **not** thereby committed to turn a blind eye to questions about communicative architecture. Even if free speech law neither obligates nor empowers legislatures to enact laws that bolster speech – even if its sole mission is to stop government from suppressing speech, that mission may well include thwarting indirect forms of speech suppression wherein the government silences us by making speech very difficult or painful rather than illegal. For example, government might do so by arranging our social, physical, and/or legal environment in such a way that those who speak will not be able to do so anonymously. A city might, as in the case of Talley v. California (1960), adopt an ordinance barring anonymous distribution of handbills. Or it might require door-to-door solicitors to register with the town (as it did in Watchtower Bible & Tract Society of NY v. Stratton (2002)). These ordinances affect free speech architecture: Absent the ordinances, the world allows you to remain unknown as you pass out handbills or distribute literature door-to-door. With the ordinances, the First Amendment landscape is significantly different in that certain acts of expression or distribution become possible only if your audiences knows (or can rather easily find out) who you are. Yet the Court found both of these ordinances unconstitutional – and a proponent of the negative liberty approach could reach the same result. If the government is not permitted to censor or chill speech under the First Amendment, then perhaps it should be barred not only from making the speech illegal – but also from making it significantly more uncomfortable. I don’t see any of this as inconsistent with Marvin’s argument. But I think it’s worth stressing because it shows that while the negative liberty approach may not be entirely up to the job of protecting First Amendment architectures, it is perhaps better equipped to do so than Marvin acknowledges.

It is in even better shape when it is supplemented by the public forum doctrine, which I’m not sure is as glaring exception to the negative liberty model as some writers claim. After all, as Tim Zick has already pointed out, public forum doctrine doesn’t force the government to build a park where there is none or preserve it in perpetuity. Nor does it empower the federal government to create such a space in a city on the grounds that local government actors have failed to do so. Rather, free speech law comes into the picture in a significant way only after the forum – the park or street or other forum – is already there. And when it performs its function, one might argue, that function is largely a negative one: it doesn’t force the government to build the park, but once the park is up and running, it forces the government to refrain from silencing certain speakers in it (whether by penalizing their speech or kicking them out).

To be sure, there is a difference between what a speaker gets from public forum doctrine and what she gets from much of the rest of free speech law: Where a speaker may otherwise have to supply her own platform for speech, in a traditional public forum like a street or park it comes packaged with the speech rights in a sense. But I think the best way to understand public forum doctrine is not as a striking and inexplicable departure from the negative liberty approach but rather as a Burkean gloss on it. After all, one might argue, it was not the courts themselves that brought into existence the architectures that support First Amendment activity in public forums. It was – as the Court itself has told the story — the development of traditions outside of the courtroom: in parks and streets, said Justice Roberts in Hague v. CIO, we find property that has “immemorially” been open to the public and since “time out mind . . .used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”  In some cases – as with the home – the basis for protection might be a set of physical facts (homes are shielded by walls) as well as evolving social norms and common law rules (you don’t spy through your neighbor windows, and if you do, you might be legally on the hook for that). And one might find a similar basis for insulating public universities’ curricular decisions or public libraries’ collections from legislative interference: Both of these institutions have evolved of norms and professional practices over the years that strongly emphasize intellectual freedom. In such situations, free speech architecture isn’t ordered into existence by courts and legislatures. Rather, courts find it in the cultural world outside of them and bring it under the First Amendment’s coverage. In these instances, however, the First Amendment’s role is the more conservative one of preserving speech-supporting architecture against legislative attack, not empowering the legislatures to generate it where it doesn’t exist. Moreover, where free speech architectures come into existence this way, we shouldn’t be shocked – or disappointed – if the specific jurisprudence that arises around them consists of a “messy” – and seemingly incoherent “collection of exceptions” to the more standard “negative liberty” default (I’m quoting p.3 of the article). A one-size-fits-all jurisprudence may simply not be able to accommodate institutions that have evolved to support speaking or reading in very different ways.

This doesn’t mean that this is a satisfactory stopping point – or that Marvin is wrong to want to want go beyond it. Neither the negative liberty approach nor public forum doctrine (even some improved counterfactual version of it) is well-suited to protect privately-operated First Amendment architectures from privately-generated First Amendment threats, especially in situations where the fast pace of technological change may make it quite difficult for courts to identify a decades-long history of speech-protecting norms or architectural features, let alone a tradition of freedom they might characterize as having existed “time out of mind.” While Marvin’s article interestingly suggests that consistent free speech principles operate “across private and public spaces” and “across media technologies,” I suspect that this underemphasizes an important dividing line between speech architectures (on the public side of the line) where the standard model (+public forum doctrine) may be better than Marvin admits, and speech architectures (on the private side) where our need for a different approach is clearer and more urgent.

Look forward to continuing the conversation tomorrow.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want [...]]]> I will be brief for now, though I have much to say about Marvin Ammori’s wonderful article and discussion. Thank you for inviting me to join.

Two quick thoughts for today:

First, the more I embed myself in public forum doctrine (a dangerous side effect of involvement with Occupy Wall Street), the more Dr. Seuss-like it starts to seem, the rhyme in my head being: “walking means talking and free speech is on beeches.” The short of it being that the likelihood of a court finding a public forum seems highly correlated with whether or not it is (a) a beach or (b) a public thoroughfare with foot traffic. In other words, there is a high likelihood that it is a place that few people want to listen to rants, let alone plan the next financial transaction tax. Organizing in mid-summer on the Coney Island beach sounds wonderful, but a little distracting, and sidewalks, as places go, are not conducive to long, extended meetings. Everyone is too busy bustling past. Two quick examples: In HERE, the Second Circuit put great weight on the question of whether Lincoln Plaza formed “part of the City’s transportation grid.” In First Unitarian, the Tenth Circuit makes plain that “Expressive activities have historically been compatible with, if not virtually inherent in, spaces dedicated to general pedestrian passage.”

Why the emphasis on sidewalks and walking? Parks, under this analysis, are more public forum-prone if people walk through them. Several things could be happening here. It could be that justices are not particularly good organizers: these days, sidewalks aren’t great for organizing, let alone for communicating to vast swaths of people. Second, it could be that the ghost of the public easement treading through the cases. Public easement analysis and public forum analysis share many of the same elements, and it may be, for reasons more related to legal culture than logic, that persistent use under claim of right by the public (as against the government or a private party) is be the most powerful claim for public forum. And why are beaches given a pass? It’s not because they are great places for Tea Party rallies—I’d suggest it might be because there’s a public easement there. Maybe what is really happening is property law, not constitutional law—the scope of easement must necessarily include the right to speak, and on public lands the public qua people can gain an easement against the public qua government.

Second, it strikes me that left and right, scholars tend to try to squeeze so much of their political philosophy squeezed through the thin reed of the First Amendment. Perhaps this is inevitable, but it seems so small to bear so much.

I will contribute more tomorrow!

I find the argument that Western consumers owe a moral duty to overseas workers quite compelling, particularly with regard to luxury goods such as Apple’s. See Iris Marion Young on that point. Yet I don’t think a traditional boycott is a good idea, for two basic reasons. First, it is self-defeating. Putting aside the irony that such a boycott cannot be organized without using Apple products, the collective action problem is [...]]]> In the wake of two Times articles and an episode of This American Life exposing working conditions among Apple’s suppliers, various bloggers and commentators have called for a consumer boycott. One respected tech blogger even called the conditions “barbaric,” arguing that “the blame lies not with Apple and other electronics companies—but with us, the consumers.”

I find the argument that Western consumers owe a moral duty to overseas workers quite compelling, particularly with regard to luxury goods such as Apple’s. See Iris Marion Young on that point. Yet I don’t think a traditional boycott is a good idea, for two basic reasons. First, it is self-defeating. Putting aside the irony that such a boycott cannot be organized without using Apple products, the collective action problem is huge. Eventually an iPhone will break, or get dropped in the bathtub, or a new app or album will be needed, and the best-intentioned consumers will defect.

Second, what exactly is the ask? Should Apple leave China? That would be bad for the workers. Should Apple demand higher labor standards? Sure … but what would they be? Apart from egregious safety violations or forced labor, someone needs to articulate demands, and define success, or the boycott will just drag on, and on, and on.

But here’s an idea worth considering: a one-day boycott in which people refuse to purchase anything from Apple, iTunes, or the App Store. The demand would be that Apple commit to rigorous, external monitoring of its suppliers. More after the jump…

The thing is, promoting fair working conditions in developing countries is not rocket science, though it is politically difficult and very time-consuming. Inspections need to be unannounced, frequent, and thorough, monitors must have sufficient time and resources to understand what is really going on within factories, and monitors must have an independent base of power — oftentimes the media — through which they can ensure that companies implement their recommendations.

A one-day boycott could press Apple to take those steps, and could help build a consumer organization to hold Apple accountable in the medium- to long-term. It seems like a good idea to me for several reasons.

1. This is do-able. As noted above, people are not going to stop buying or using Apple products for any extended period. But if lots of consumers coordinated their refusal to buy on a particular day, and applied it to hardware and the App Store and iTunes, the calculus may change. That action would make a measurable impact on Apple’s sales that day, even if not on their long-term bottom line, signalling that consumers are seriously upset about the China revelations.

Whether Apple cares will depend on the numbers and the media coverage. I admit that I have no clue what a critical mass would be — a hundred thousand? five hundred? A million? (That *would* be cool, Sean Parker). But once critical mass is reached, and media took notice, Apple could not defend itself on grounds of consumer indifference, and their hip, semi-counter-cultural brand image could take a hit. That may effect their profits, or their projected profits, just as it did for Nike, Walmart, and other companies who have changed social policies in response to consumer pressure.

2. Social media dramatically reduce organizing costs. Through them, we can allocate small actions into something much, much bigger at no real cost, making it possible to effect major changes without demanding too much from any one individual. The Arab Spring showed this dramatically. A nice domestic analogue is the recent “move your money campaign,” which (among other things) got BofA not to increase debit card fees. That effort succeeded in part by facilitating individuals’ ability to move their money — something many already wanted to do — and in part by demonstrating that others were doing the same, making that action safe and appealing. It built momentum until the idea went viral.

In the Apple context, a small but well-organized group could wield the sort of “regulatory big stick” generally missing in the global labor context. Once enough people signed up, and demonstrated they were willing to take coordinated action, Apple would have to decide whether to ignore the group, dig in its heels, or bargain. Depending on the campaign’s visibility, the first two strategies might backfire, especially if the group is media-savvy and its demands are reasonable.

Moreover, assuming the one-day boycott went well, and the group had momentum, Apple would have to wonder what was coming next: a three-day boycott? A week-long one? Such uncertainty dramatically increases the pressure on a target — as Saul Alinsky once said, “It’s not how much power you have, it’s how much power the other side thinks you have.”

3. Organizing this would not be especially hard. A programming collective is needed to set up a website through which people could commit to not buy from Apple on some day in the future … perhaps May First, just to pick a day at random? <<Update: actually, February 23 might be best — that’s Apple’s annual meeting. Also, check out this Facebook page.>> Someone needs to put together proposed demands, poll people who have signed up regarding those demands, and do some loose coordination. If the project takes off, there should be media outreach, as well as outreach to independent Chinese trade unionists and democracy activists. As suggested by one of my students, local activists could also organize pickets and other media events at Apple stores on the day chosen.

Whatever (preferably minimal) structure is set up, it would need to be autonomous from anyone with a financial or political interest here. That means autonomy from the labor movement, and from companies, activists or organizations who have beef with Apple for some other reason. It would also need to be decentralized whenever possible, so as to reduce organizing costs and to encourage maximum participation.

4. Some thoughts on demands. In the short term, Apple could demand that their suppliers install ventilation so that factories don’t explode and create hotlines through which workers could “report abusive conditions and seek mental counseling.” In the longer term, Apple could sign onto the Workers’ Rights Consortium (WRC) or adopt its strategies, which are the gold standard in this field and described nicely by Mark Barenberg in his excellent chapter in this book. The WRC seeks, through the monitoring process, to establish the conditions under which workers’ own democratic organizations can gain a foothold and promote workers’ interests in the long run.

In other words, Apple could demand that suppliers — and, frankly, the Chinese state — respect workers’ rights to form democratic and independent trade unions. Chinese workers do not enjoy that right today. Meanwhile, the company should not cut-and-run, even if they hit some bumps. Rather, Apple should articulate clear demands regarding working conditions to factory managers and to political actors in China, and should reward compliance by increasing their investment in China. While many have said that China is largely impervious to outside pressure on labor standards, that may no longer be true. As the Times’ points out, there is a sort of halo effect associated with producing for Apple, one which China will not want to lose.

Ultimately, Apple may be singularly well-positioned to effect change in China, and Apple consumers may be singularly well-positioned to effect change at Apple. Meanwhile, change in China and at Apple will have broader effects among developing nations and among tech companies. So a well-organized and targeted boycott may be a very, very good idea.

I want to take issue with an important part of Marvin’s argument.  Because I’m going to be contrary, I first want to emphasize not just my deep admiration for Marvin’s article but my enthusiastic agreement with what I see as his most important point – what he calls the “ought” point.  By contending that we should construe the First Amendment as mandating some measure of public access to the means of communication, Marvin is advancing a long tradition of scholarship and activism that treats the First Amendment not just as a prohibition on government [...]]]> Let me be the latest to thank Marvin, for making an outstanding contribution to First Amendment scholarship that gives us this prime occasion for discussion, and Danielle, for making the discussion happen.

I want to take issue with an important part of Marvin’s argument.  Because I’m going to be contrary, I first want to emphasize not just my deep admiration for Marvin’s article but my enthusiastic agreement with what I see as his most important point – what he calls the “ought” point.  By contending that we should construe the First Amendment as mandating some measure of public access to the means of communication, Marvin is advancing a long tradition of scholarship and activism that treats the First Amendment not just as a prohibition on government censorship but also as a charter of democratic public discourse.  Marvin offers an especially smart, thorough, and contemporary take on that position, for which we should all be grateful.

My differences with Marvin go to the “is” part of his argument.  I don’t think First Amendment law has done nearly as much to advance access to the means of expression as Marvin suggests.  In fact, I think the law emphatically favors the negative liberty model that he seeks to marginalize or diminish.  I first want to sketch the basis for my contrary view on this point.  I’ll then briefly explain why I think the disagreement matters.

Marvin points to several levels or instances of First Amendment law as embodying some version of the access principle that he and I advocate.  My problem with a lot of his examples – the Court’s decision allowing states to mandate free speech in shopping malls; regulations governing access to the Internet; and I’d throw in here the Court’s decisions upholding the fairness doctrine and must-carry regulations – is that they aren’t First Amendment law.  They’re government actions that advance free speech, which is important, but they don’t use the First Amendment to enhance access.  The most interesting of these cases to me, the shopping mall case, just says that property rights don’t bar a state from imposing free speech norms on certain, big private concerns.  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.  For me, that doesn’t contradict or even complicate the negative liberty paradigm.

Marvin’s biggest example of his better First Amendment in action is the public forum doctrine.  Although I agree with Tim that the public-private distinction complicates any effort to reason outward from that doctrine, it’s still Marvin’s strongest example in my view.  As Marvin points out, the principle that government must endure free expression in (at least) traditionally open public spaces has been very important for the Occupy protests.

My problem with the public forum doctrine is that, contrary to Marvin’s argument, I do think it’s merely an exception to the Court’s prevailing tendencies on free speech – a weak and increasingly disfavored exception.  From the very beginning of modern public forum analysis, in the 1970s, the Court has hacked away at the doctrine.  It doesn’t give you the right to camp out in public parks to protest homelessness, or post political signs on municipal utility poles, or solicit donations for your church in airport concourses.  Those are just some restrictions the Court has recognized; Tim’s book talks about other, practical constraints courts have permitted law enforcement to impose, like shunting protesters at big political events into remote “free speech zones.”

All of this is getting worse.  If memory serves, the Supreme Court hasn’t handed down a significant public forum decision favorable to free speech rights in at least 15 years.  (I suppose you could count Snyder v. Phelps, the military funeral case, but Snyder doesn’t actually present the issue we’re talking about. )  What the Court’s First Amendment decisions have been doing almost exclusively for the past couple of decades, and predominantly for the past four, is advancing the negative liberty paradigm.  The most important example of this phenomenon, for me, is campaign finance regulation, where the First Amendment saves moneyed interests from government “censorship” that is at least arguably motivated by the very access principles Marvin and I favor.  But even in the increasingly rare cases where the Court in recent decades has invoked the First Amendment to benefit dissident or underfunded speakers, it has done so under the negative liberty model.

Why, if I’m right about any of this, does it matter?  Marvin’s “is” argument, among other things, represents a strategic gambit: You should accept his (our) normatively preferred view of the First Amendment, in part, because it already holds substantial sway in the world.  I don’t think it’s a sound strategy.  I think that First Amendment doctrine is generally in pretty appalling shape; that the doctrine’s problems run deep; and that those problems reflect a thoroughly reactionary legal and political philosophy.  I wish I either agreed with Marvin’s strategy or could propose an alternative that offered as much hope as he believes in his “is – ought” transposition offers.  But the best approach I can come up with is to keep beating the bad doctrine with intellectual and activist sticks until it breaks and opens up space for us to build something better.

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 [...]]]> 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.

That is just physical spaces. The Court has permitted government to open “virtual” spaces as well. While we used to talk about the Internet as “cyberspace,” and recent articles discuss “flaneurs” walking about in real or cyberspace, we can think of any means of connecting two people to speak as a virtual speech space. (Tim Zick’s post on this point is far more eloquent than I could be.) The first virtual space for newspapers was the postal service—the nation’s most important distribution tool for over a century, including during its founding.

Legislative rules allowed newspapers to enjoy special access to the U.S. postal network. Postal carriage of the papers was heavily subsidized, and rules decided by Congress favored nonprofit and public affairs speech through these spaces over commercial advertising. The government affirmatively used complex rules to ensure some types of speakers had preferred access to these spaces—though government generally did not favor viewpoints so much as broad classes of content, as Brett notes in his recent post.

A modern-day equivalent of newspaper-access rules in the postal network is Congress’s imposition of common-carrier rules on privately owned telephone carriers. Both traditional land lines and mobile phone service must remain open to all speakers under “common carrier” rules. Private phone companies generally have no “editorial discretion” over the speech that takes place on their lines, though they often assert such First Amendment rights, including when a phone company refused to deliver text messages from a pro-choice organization. This designation of phone lines is not, of course, required by the First Amendment. The policy is, however, constitutionally permissible.

Imagine a world in which AT&T could decide not to carry the calls of speakers it deemed offensive or politically sensitive. Under the conventional model of the First Amendment, which views mandatory access to private networks as government interference with the private speech of network owners, such conduct would be permissible. But we generally assume government can in fact impose rules providing access for all to such virtual speech spaces, even for privately owned property. The courts have generally agreed.

The Internet, broadcast television, and cable systems have also been targeted as speech spaces with special affirmative access rules. For many years, Internet service providers (such as AOL or Earthlink) relied on phone lines, which were subject to the same common-carrier rules as telephone calls. Broadcast television operators must provide “reasonable access” to political candidates – a rule justified by the Supreme Court as promoting democracy and balancing the speech rights of the broadcasters, the candidates, and the public. And private cable operators are treated similarly to common carriers regarding some channels, being required to carry some speakers, connecting them virtually to subscribers.

In short, the First Amendment does not stop at requiring access to certain minimal forums. Rather, the First Amendment permits the government to designate additional other spaces, both public and private, both virtual and physical. For the average speaker, it often does not matter if a forum is available for speech by grace of the Constitution or the legislature. It would, matter, however, if the legislature were constitutionally forbidden by the First Amendment to open important forums to speech merely because those forums are privately owned and the negative-liberty model suggest that government must keep out of speech.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the [...]]]> There is one principle that I would add to the five that Marvin examines in the article:  nondiscrimination.  It seems to me that across public and private, physical and virtual ”space” contexts (and judicial opinions), one persistent principle is that nondiscriminatory approaches to sustaining spaces, platforms, … infrastructures are presumptively legit and normatively attractive — whether government efforts to “sustain” involve public provisioning, subsidization or regulation.

I recognize that this might seem to tread too close to the negative liberty / anti-censorship model, but in my view, it helps connect the anti-censorship model with the pro-architecture model.  We should worry when government micro-manages speech and chooses winners and losers, but macro-managing/structuring the speech environment is unavoidable.  A nondiscrimination principle guides the latter (macro-management) to avoid the former (micro-management).

This sixth principle is implicit is the other five that Marvin discusses.  It’s not articulated as a stand-alone principle, uniform across situations, or even defined completely.  Nonetheless, nondiscrimination of *some* sort is part of the spatial analysis for each principle. For example, in the paper, when Marvin discusses designated public spaces, he says that government can designate spaces–so long as it does so in a nondiscriminatory way. The nondiscrimination principle here is limited: government cannot discriminate based on the limited notion of “content.”  Another example is limited public forums where government cannot discriminate on viewpoint, but can set aside a forum for particular speakers based on the expected content (say students / educational content).  There are other examples that Marvin explores in the paper.  In my view, there is something fundamental about nondiscrimnation and the functional role that it plays that warrants further attention.

Frankly, the idea of a nondiscrimination principle connects with my own ideas about the First Amendment being aimed at sustaining infrastructure commons and the many different types of spillovers from speech–or more broadly, sustaining a spillover-rich cultural environment;  I explored those ideas in an essay and I expand on them in the book.   It is important to make clear that government support for infrastructure commons — whether by direct provisioning or by common carrier style regulation — lessens pressure on both governments and markets to pick winners and losers in the speech marketplace/environment, and as Marvin argues, that is something that is and ought to be fundamental or core in any FA model.

This post is about the first of the five principles that work together to reveal the First Amendment’s concern with availability of speech spaces.

As a matter of judicial mandate, individuals must have access to some basic, minimal spaces for [...]]]> In previous posts about a recent article, I argue that it’s both descriptively inaccurate and normatively problematic to think that the First Amendment embodies merely a negative liberty—a freedom from government interference in matters of speech, even if government is acting to open additional avenues of speech for all. I claimed that what many people now consider doctrinal “exceptions” to the negative liberty model govern much of our speech and reflect overlooked substantive principles regarding the First Amendment’s role in ensuring individuals’ access to spaces for speech.

This post is about the first of the five principles that work together to reveal the First Amendment’s concern with availability of speech spaces.

As a matter of judicial mandate, individuals must have access to some basic, minimal spaces for speech. These include private spaces for reflection and opinion-forming and public spaces for debate.

First, the First Amendment protects reflection and opinion forming in certain private spaces. Special rules govern the family home. Government intrusion is suspect, even for speech otherwise unprotected in public, while government can pass laws more permissively silencing unwanted speakers near the home (picketers, those using loudspeakers, and others). (Pages 23, 24.) I argue that these doctrines suggest that the individual must have some separate space, here the home, away from the public sphere, for reflection and opinion-forming. Such an autonomous space is central to a well-functioning democracy. (Robert Post has written some of the most interesting work in this regard—discussing the paradoxes of democratic discourse rests on individual autonomy.)

Finally, the First Amendment secures a baseline space for public discourse. Under the traditional public forum doctrine, streets, sidewalks, and parks are open to speakers unless the government can prove a compelling state interest behind a narrowly tailored restriction.

These forums are not inconsequential spaces devoid of speakers. 2011 was a banner year for protesters on streets and in parks, so much so that Time Magazine’s person of the year was “the protester.” From the rotunda of the Wisconsin state capitol to the grounds of Zuccotti Park to the plazas of Tahrir Square, public spaces erupted in outbursts of populist discontent. And while most attention was focused on the protesters or the role of Twitter, Facebook, YouTube, and Tumblr, the physical spaces where they demonstrated were just as critical in allowing them to be influential.

In Wisconsin, public employees took advantage of the traditional public forum doctrine when they demonstrated for months outside the state capitol to oppose cuts to their unions.

In other cities across America, the Occupy Wall Street movement used public forums for extended and highly visible protests. At the movement’s hub – New York’s Zuccotti Park – the status of the protesters’ rights was complicated by two factors: the degree to which sleeping and camping constitutes “speech,” and the fact that the park is privately owned but open to the public. Anjali Dalal is writing something interesting right now on privately owned public spaces, in light of the second question.

Indeed, the rule that Americans have some minimal spaces for speech extends to towns that are privately owned. In the mid-20th century, in the wake of the world’s experience with fascism and world war, the Supreme Court ruled that that streets in privately owned company towns must be treated as traditional public forums. While this case is often considered a major “exception,” millions of Americans lived in company towns at the time. The case had a profound practical impact. It ensured that those living in company towns had a nearly identical public forum doctrine, providing a minimum baseline of open speech spaces. This case is supposed to be an “exception” to the negative-liberty model, but it is a pretty significant challenge to that model.

The traditional public forum doctrine in public and privately owned towns welcomes (indeed requires) government’s affirmative involvement in speech. We can call these mere exceptions, or we can seriously ask what these doctrines say about the First Amendment’s core meaning. They suggest that space is essential for our public discourse and that the First Amendment itself requires such spaces for this reason.

Moreover, the importance of particular judicially-protected spaces is evident in a constitutional provision adopted before the First Amendment. The framers saw fit to enshrine considerable protection for discourse related to the affairs of the national government. To protect the ultimate democratic speech-space, the two houses of Congress, the framers provided a specific constitutional immunity: “for any Speech or Debate in either House, [Members] shall not be questioned in any other Place.”

These judicial requirements, for both autonomous reflection and public discourse, are a foundational principle underlying the other core principles of speech spaces. With these judicially required spaces available, society can democratically designate additional publicly owned and privately owned spaces for speech, even beyond those judicially required.

Today’s piece continues with the importance of what are conventionally perceived as “exceptions” to First Amendment doctrine. In yesterday’s post, I set out a common counter-argument to the claim that the First Amendment ought to be concerned with ensuring [...]]]> This is the second post laying out my argument in a recent article. I hope to post later on some of the great comments, or the excellent post by Brett Frischmann on the public domain as speech “infrastructure” and Timothy Zick’s insightful discussion of speech mediums and spatiality. I’m also going to hold off on posting about the current police crackdown on Occupy K Street in Washington, DC, a few blocks from my office, but here is a link to a live video feed of the eviction.

Today’s piece continues with the importance of what are conventionally perceived as “exceptions” to First Amendment doctrine. In yesterday’s post, I set out a common counter-argument to the claim that the First Amendment ought to be concerned with ensuring speech spaces for all. That counter-argument, in many guises, is that the First Amendment is only concerned with ensuring negative-liberty, or keeping government out of the speech market. While this argument has an is-ought fallacy at its core, it is pretty hard to argue with the perceived weight of what First Amendment precedent actually is.

But you are not persuaded yet by the counter-argument that the First Amendment is a negative liberty. You question the “is” underlying the entire argument. You do so the same way you would question any factual claim—you present counter-examples. If someone claims that all Smurfs are female, you might ask, “What about Hefty, Handy, and Papa?”

Of course, no legal principle makes sense of all precedent; there are always outlier cases. But a convincing principle usually makes sense of, at least, a lot of the precedent. If there are too many outliers, then the explanatory “principle” itself seems more like an outlier than an explanation.

For the negative-liberty model of the First Amendment, you raise some strong counterexamples. Your first counter-example is a big one: the traditional public forum doctrine. That doctrine forbids government from silencing speech on generally open public parks, streets, and squares absent narrow tailoring to a compelling interest. Based on the First Amendment alone, this doctrine forces government to make some of its property open to speech, when that space is open to the public generally.

Having raised this counter-example, you argue that the First Amendment must be concerned with more than negative liberty, more than just keeping government out of speech. The Amendment directly requires some spaces, which are generally available in every city, town, and neighborhood, to be open for speech.

For those adhering to the negative-liberty model, the response will be: “The traditional public forum doctrine is merely an exception, an outlier, in First Amendment precedent.” (See pages 11-12 for some “exceptions.”)

It strikes you as a pretty big exception. The speech in “paradigm” First Amendment cases—such as those involving protestors, flag-burners, parade-permit seekers, funeral protestors, and petition-signature gatherers—generally involve public forums. Sure they benefit from government “staying out” of their speech, but only because the First Amendment affirmatively makes such speech available for speech.

So you try again, though not with spaces required by the First Amendment, such as streets and parks. You try with spaces that the First Amendment permits (but does not necessarily require) government to keep open for speech. You note that the government can dedicate additional spaces for speech, such as municipal theaters, called designated public forums. Governments can even pass laws designating privately owned shopping malls as forums for speech. If the First Amendment were focused on negative liberty, it would prohibit such laws for interfering with pre-existing speech rights of the owners of private shopping malls.

Turning to digital spaces, you raise more counter-examples that challenge the negative-liberty model. You mention a few of the complex regulations taking up several volumes of communications law. These laws shape who has access to phone lines, cable lines, and wireless frequencies of all stripes in order to speak through them. These laws do not reflect negative liberty, as they involve government intervention into speech, acting based on speech-specific purposes, reallocating pre-existing speech and property rights to ensure certain speakers have access to these virtual spaces. You observe that the precedents upholding these laws are often (maybe generally) more significant practically than the precedents involving flag-burning or hate speech on law school campuses, precedents that receive a lot of attention in First Amendment discussions.

You get the same response: “Those designated public forum precedents, and the shopping mall precedents, and all the many media precedents are all just exceptions to the core principle of the First Amendment.”

Again, these are huge exceptions. Many law students have probably sat in their constitutional law classes wondering why “exceptions” to the First Amendment governed the speech media they used most every day. Americans spend on average up to seven hours a day using electronic communications media to speak to one another or to consume the speech of others. They receive most of their news and political information through “cyberspace” and other virtual speech spaces, including television and radio, satellite and cable. But First Amendment theorists discuss many of the laws governing these important media as though they’re odd exceptions that say almost nothing about the First Amendment itself or what principles animate the First Amendment.

At this point, assuming you’re still trying to persuade others, you face a catch-22.

You can’t make your “First Amendment ought” argument (a concern for speech spaces) primarily because it conflicts with what many assume “the First Amendment is” (the negative-liberty model). You turn to what the doctrine is, because, if the doctrine is something else, then you have also defeated the core objection to your ought argument. Too bad every one of your counterarguments is a mere “exception” that tells us nothing interesting about what the First Amendment means. Free-speech exceptions govern everything from the telephone to the street corner.

This catch-22 helped determine the structure of my paper.

My article begins by taking on the is argument, and demonstrating that the First Amendment is not, in fact, a reflection of negative liberty.

I argue that the negative-liberty model is wrong as a matter of description. It relies primarily on broad reading of just a few selected cases—those involving offensive speakers such as flag-burners, pornographers, racists, and cross-burners. From those few cases, it deduces a broad principle supposedly embodying all cases. That is, the conclusion is like analyzing Smurfette and Sassette Smurfling, and deducing that all Smurfs are female. (Handy, Hefty, and Papa are all just “exceptions” telling us nothing about Smurfdom.)

If we look beyond the offensive-speech cases, and evaluate the many important “exceptions” to the negative liberty model, we can organize them based on underlying principles that demonstrate several distinct, important substantive concerns with ensuring that Americans have access to spaces to reflect, to speak, to organize, and to protest. In the recent article, I deduce five key principles that work together to ensure that Americans may have access to such spaces. With these five principles, I organize considerable precedent governing access to speech spaces.

While the review of these precedents takes some space, the goal is partly to demonstrate that the exceptions are so overwhelming and influential that it would be hard to cling to the idea that each of them is merely a special “exception,” an outlier in conflict with the First Amendment’s core purpose saying nothing about what the First Amendment means.

These substantive principles are not mere exceptions but have long been core to what the First Amendment means.

The next posts will describe these core principles and some of the supporting precedent, before I turn to justifying how those principles further democracy and individual liberty.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in [...]]]> Thank you to Marvin for an excellent article to read and discuss, and thank you Concurring Opinions for providing a public forum for our discussion.

In the article, the critical approach that Marvin takes to challenge the “standard” model of the First Amendment is really interesting. He claims that the standard model of the First Amendment focuses on preserving speakers’ freedom by restricting government action and leaves any affirmative obligations for government to sustain open public spaces to a patchwork of exceptions lacking any coherent theory or principles. A significant consequence of this model is that open public spaces for speech—I want to substitute “infrastructure” for “spaces”–are marginalized and taken for granted. My forthcoming book—Infrastructure: The Social Value of Shared Resources–explains why such marginalization occurs in this and various other contexts and develops a theory to support the exceptions. But I’ll leave those thoughts aside for now and perhaps explore them in another post. And I’ll leave it to the First Amendment scholars to debate Marvin’s claim about what is the standard model for the First Amendment.

Instead, I would like to point out how a similar (maybe the same) problem can be seen in the Supreme Court’s most recent copyright opinion. In Golan v. Holder , Justice Ginsburg marginalizes the public domain in a startlingly fashion. Since it is a copyright case, the “model” is flipped around: government is empowered to grant exclusive rights (and restrict some speakers’ freedom) and any restrictions on the government’s power to do so is limited to narrow exceptions, i.e., the idea-expression distinction and fair use. A central argument in the case was that the public domain itself is another restriction. The public domain is not expressly mentioned in the IP Clause of the Constitution, but arguably, it is implicit throughout (Progress in Science and the Useful Arts, Limited Times). Besides, the public domain is inescapably part of the reality that we stand on the shoulders of generations of giants. Most copyright scholars believed that Congress could not grant copyright to works in the public domain (and probably thought that the issue raised in the case – involving restoration for foreign works that had not been granted copyright protection in the U.S — presented an exceptional situation that might be dealt with as such). But the Court declined to rule narrowly and firmly rejected the argument that “the Constitution renders the public domain largely untouchable by Congress.” In the end, Congress appears to have incredibly broad latitude to exercise its power, limited only by the need to preserve the “traditional contours.”

Of course, it is much more troublesome that the Supreme Court (rather than scholars interpreting Supreme Court cases) has adopted a flawed conceptual model that marginalizes basic public infrastructure. We’re stuck with it.

For now, though, a more topical post: the unemployment numbers are out today, and things are looking up: 243,000 new jobs created in January, lowering the national unemployment rate to 8.3%. Granted, the top-line number lacks granularity, and tends to understate the extent of un- and under-employment. But lower unemployment is a good thing. As the post-Keynesian Joan Robinson once quipped, “The only thing worse than [...]]]> First off, a big thanks to my colleague Dave Hoffman and the other editors for the invitation to guest blog this month. I’m planning to post about my own research as well as other interests, including law and social movements, the meaning of and significance of the Occupy protests, and the complicated role of class in U.S. law and politics.

For now, though, a more topical post: the unemployment numbers are out today, and things are looking up: 243,000 new jobs created in January, lowering the national unemployment rate to 8.3%. Granted, the top-line number lacks granularity, and tends to understate the extent of un- and under-employment. But lower unemployment is a good thing. As the post-Keynesian Joan Robinson once quipped, “The only thing worse than being exploited by capitalism is not being exploited by capitalism.”

What’s intriguing to me is that while Obama, Romney and Gingrich’s proposals regarding unemployment differ in many ways, each has endorsed job training as an anti-unemployment strategy. Obama stirred controversy last year when he praised a Georgia program in which firms could “hire” and train unemployment recipients but not pay them for the first eight weeks.  Less controversially, the DOL recently granted $500 million to community colleges to help retrain and place the unemployed.

There’s just one problem: it’s not at all clear that job training does much good, particularly in a down economy.

The potential reasons are myriad. Training programs might not be ambitious enough; or workers might need more advanced skills than those programs can provide; or, frankly, macroeconomic factors may dwarf workers’ skill levels as a cause of unemployment, rendering supply-side solutions largely ineffective.

Why, then, is job training so politically popular? Perhaps politicians are in bad faith, and they want to create the illusion that they’re doing something about unemployment. But even if true, that would not explain such programs’ popularity among the general public.

I suspect that this may be another example — no pun intended — of cultural cognition at work. Job training programs, even if mediocre policy, may be quite “congenial to persons of diverse cultural outlooks.” Egalitarians may believe that job training helps disadvantaged groups gain more remunerative and meaningful work; hierarchs may view it as a means to help businesses prosper by building a more skilled workforce. Individualists may feel job training helps workers take personal responsibility for their own economic situation, while solidarists and communitarians may be happy to see the government doing something to address unemployment, a collective, social problem.

If I’m right about this — and I should be clear that I have zero data on point — then the implications for employment policy are significant. At the same time, policies that may have more profound effects on employment rates — like renewed WPA-style programs, or broad changes to fiscal policy — seem politically unpalatable in part because they run afoul of some cultural groups’ perceptions of efficacy. Or perhaps the political conversation around economics and values needs to shift much more significantly … about which more in future posts.

I planned to write a few “readable” posts about the article I’m presenting. This is the first.

I’ll begin with a few basics obvious to most CoOp readers but maybe not to everyone. The First Amendment of the Constitution forbids government from abridging the freedom of speech. Because no law passed by Congress can violate [...]]]> Two days ago, I posted about a law review article I’m presenting next Friday at a symposium. The symposium is dedicated to “First Amendment Challenges in the Digital Age.” Danielle was generous enough to host a little blog-athon about the topic and invite me and some of our friends. (If I may speak for Marc, Tim, Brett, Greg, and Zephyr on one thing: thank you Danielle! And thank you Concurring Opinions.)

I planned to write a few “readable” posts about the article I’m presenting. This is the first.

I’ll begin with a few basics obvious to most CoOp readers but maybe not to everyone. The First Amendment of the Constitution forbids government from abridging the freedom of speech. Because no law passed by Congress can violate the Constitution, courts will not enforce government acts (state or federal, legislative or executive) that abridge the freedom of speech.

But the term “freedom of speech” is pretty vague, as is the word “speech” itself—for example, silent flag burning is protected speech but verbal death threats are not. Because the Constitution is vague on this point, courts have developed something of a common law to interpret the First Amendment and have erected complex doctrines, exceptions, tests, and standards of scrutiny. Scholars or lawyers then review that common law and, for both practical and theoretical reasons, will debate which underlying principles animate that common law.

My article’s core argument is that the First Amendment precedent reflects (and, in fact, should reflect) an important, but overlooked, substantive commitment to ensuring that Americans have adequate physical and virtual spaces available for speech, particularly for public discourse.

This argument, however, conflicts with a widely held assumption. Academics and other lawyers often assume that First Amendment precedent reflects a core negative-liberty principle. “Negative” liberty refers to a freedom “from” government interference, a “hands-off” approach for speech, not a freedom “to” particular substantive outcomes. (For evidence that the First Amendment is generally believed to reflect a negative liberty, see page 9 and its notes.)

If the central principle of the First Amendment is promoting negative liberty, then government must stay out of “speech,” and should not regulate, for example, campaign finance, or the “speech” transmitted by large media conglomerates and telecommunications companies.

But, you might believe that, as a matter of fact, keeping government “out” of the speech market will only ensure that a few powerful speakers have access to the avenues of speech while closing out many other speakers. You might believe, as a matter of principle, that government should be able to intervene in the speech market to open additional avenues of speech for all citizens, particularly if those citizens support such intervention. But a negative-liberty model of the First Amendment would consider such intervention problematic: the government should keep its hands off of speech, even when promoting speech opportunities.

Stick with me for a moment. You decide you’d like to convince others that the First Amendment should be concerned with ensuring that all Americans have access to plentiful spaces to engage in speech. You think the Constitution should permit—and sometimes even require—governments affirmatively to ensure spaces remain open for speech. You recognize that the right to freedom of speech would be meaningless without some place to exercise it. You noticed the importance of speech spaces, not only from the Arab Spring’s Tahrir Square and Occupy Wall Street’s Zuccotti Park, but also from the use of digital spaces to connect protesters and revolutionaries around the world, from Tunisia to Silicon Valley.

So, to convince others, you make an “ought” argument. You argue that the First Amendment ought to be concerned with more than mere negative liberty. It ought to be concerned with substantive outcomes, such as whether there are actually sufficient spaces for American public discourse, whether all Americans have access to those spaces, whether those spaces support diverse speakers, and so on.

You can expect counterargument of course, particularly from those adhering to the negative-liberty model.

The usual counter-argument is a polite version of telling you that you live in a fantasy land. Whatever the merit of your arguments, they conflict with the “core principles” of our “venerable First Amendment tradition.” Our First Amendment common law points towards a negative-liberty model. Whatever you may think the First Amendment “ought” to be, the First Amendment “is” a negative liberty. (See pages 13-15).

A slightly modified version of this counter-argument engages in normative analysis, evaluating your claim. When economists engage in normative analysis, they might apply norms like efficiency or cost-savings. Free-speech scholars generally apply norms derived from our venerable speech tradition. These norms all tend to point towards negative-liberty—government distrust, nondiscrimination, no re-allocation of speech resources, etc. The analysis will include sentences like, “But your argument conflicts with the First Amendment’s commitment to nondiscrimination.”

So, essentially, applying these norms in the normative analysis is just a sophisticated way of saying: you lose because the First Amendment is committed to negative-liberty.

Your argument about what the First Amendment ought to be fails because of what the First Amendment is. Rejecting an ought argument based on an is reflects a well-known argument fallacy (the is-ought fallacy).

More importantly, the First Amendment is not in fact a model of negative-liberty. The First Amendment’s precedent actually reflects a deep commitment to ensuring adequate spaces for Americans to speak. Once we demonstrate that point, we can argue that the First Amendment ought to have that commitment to ensuring the same kinds of physical and digital speech spaces that sparked a democratic “Spring” in historically closed societies.

Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin?

Havel did what he knew best: he sat down to write, [...]]]> It’s been a joy visiting here at Concurring Opinions again – thank you to the Co-Op crew for the opportunity. I’m going to take my leap month early this year and consider this January 32nd so I can finish up the Havel posts.

Havel’s Presidency had its up and downs, but what is stunning to me is that he managed it all. There was simply no precedent for a transition of power in Czechoslovakia. Try to imagine, if you can, arriving in the White House tomorrow, to find it abandoned. You have no political experience. You are in charge of the country, and it is convulsing in revolution. Where do you begin? How do you begin?

Havel did what he knew best: he sat down to write, in this case not a play or essay, but a constitution. Havel was the principal architect and drafter of the Czech Charter of Fundamental Rights and Freedoms. As in the case of much of Havel’s writing, it is striking in its parsimony. Much of the bitter history of totalitarian and post-totalitarian society is starkly if implicitly revealed in each articulated principle:

Democratic values constitute the foundation of the state.
The freedom of thought, conscience, and religious conviction is guaranteed.
The inviolability of the person and of her privacy is guaranteed.
A person’s dwelling is inviolable. It may not be entered without the permission of the person living there.
Only a law may designate which acts constitute a crime.
Censorship is not permitted.
Everyone who suffers from material need has the right to such assistance as is necessary to ensure her a basic living standard.
Everyone has the right to the protection of her health.
Everyone has the right to education.
Everyone has the right to demand that her human dignity be respected.

A few final thoughts on Havel: He was not anti-communist. He was horrified by the effects of a system, created by and embodied through individuals, which had encouraged people to avoid two fundamental and ultimately inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. He did not ultimately seek a political revolution, but rather an existential one. The type of existence he imagined was incompatible with post-totalitarianism, so a political revolution would be an inevitable by-product of that existential revolution in post-totalitarian states.

But Havel’s critique was hardly limited to communist post-totalitarian regimes; it applied with equal force to capitalist, democratic systems, if such systems encouraged people to avoid their two fundamental and inescapable responsibilities: the responsibility to themselves to live truthfully, and the responsibility to each other to live kindly. In particular, Havel saw in the consumerist West a dangerous phenomenon: individuals attempting to sate themselves through by material satisfactions, to shirk moral responsibility to themselves, each other, and for the actions of their state. Havel saw that the he need for an existential revolution in such a society is just as great, and perhaps as inevitable, since people probably cannot withstand the internal pressure of alienation from themselves forever. In a consumerist society, we consume with increasing speed but can never quite consume enough to be satisfied. Eventually, perhaps, it will become clear that one cannot avoid one’s moral responsibilities with more and better things. As Havel forecast with amazing prescience about the sudden collapse of the East European regimes, such systems are vulnerable to “a sudden explosion of civic unrest, a sharp conflict inside an apparently monolithic power structure, or simply an irrepressible transformation in the social and intellectual climate.”

I, for one, hope that time is coming. And when I say hope, I mean hope as Havel meant it: “not the conviction that something will turn out well, but the certainty that something makes sense, regardless of how it turns out.”

Vanderbilt Law Review, Volume 65, Number 1 (January 2012).

The Vanderbilt Law Review is proud to announce the publication of our January issue.

ARTICLES

Darian M. Ibrahim, The New Exit in Venture Capital, 65 Vand. L. Rev. 1 (2012).

Lloyd Hitoshi Mayer, The “Independent” Sector: Fee-for-Service Charity and the Limits of Autonomy, 65 Vand. L. Rev. 51 (2012).

Timothy Zick, Falsely Shouting Fire in a Global Theater: Emerging Complexities of Transborder Expression, 65 Vand. L. Rev. 125 (2012).

NOTES

Caroline Cecot, Blowing Hot Air: An Analysis of State Involvement in Greenhouse Gas Litigation, 65 Vand. L. Rev. 189 (2012).

Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).

Are you interested in writing a response to one [...]]]>

Vanderbilt Law Review, Volume 65, Number 1 (January 2012).

The Vanderbilt Law Review is proud to announce the publication of our January issue.

ARTICLES

Darian M. Ibrahim, The New Exit in Venture Capital, 65 Vand. L. Rev. 1 (2012).

Lloyd Hitoshi Mayer, The “Independent” Sector: Fee-for-Service Charity and the Limits of Autonomy, 65 Vand. L. Rev. 51 (2012).

Timothy Zick, Falsely Shouting Fire in a Global Theater: Emerging Complexities of Transborder Expression, 65 Vand. L. Rev. 125 (2012).

NOTES

Caroline Cecot, Blowing Hot Air: An Analysis of State Involvement in Greenhouse Gas Litigation, 65 Vand. L. Rev. 189 (2012).

Mike Dreyfuss, My Fellow Americans, We Are Going to Kill You: The Legality of Targeting and Killing U.S. Citizens Abroad, 65 Vand. L. Rev. 249 (2012).

Are you interested in writing a response to one of these pieces? Visit Vanderbilt Law Review En Banc for more details.