First Amendment “Exceptions” and What the First Amendment Means (#2)

Cross posted from Marvin Ammori's post at Concurring Opinions.

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.

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