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Free Speech Architecture – Legislated Spaces (#4)

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

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.

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