Cross posted from Marvin Ammori's post at Concurring Opinions.
In seven posts (available here), I have set out the arguments in First Amendment Architecture. This post covers arguments made in the last 25 pages of that article, the normative and theoretical arguments.
In doing so, this post examines the implications of these principles both for how courts should decide future speech cases (that is, normative doctrinal implications) and for what the First Amendment “means” (that is, more theoretical implications).
We’ll begin with doctrine.
In the paper article (and earlier posts), I argued that First Amendment precedent does not exclusively reflect a broad negative liberty; that conflicting principles evident in doctrine include important “architectural” principles requiring or encouraging sufficient physical or virtual spaces for speech, that may be universally available and for diverse local and national speakers; and that we should evaluate relevant proposed legislation or case outcomes based on these principles rather than merely reaching for the negative-liberty principle.
More specifically, as a matter of doctrine, I argue that, absent viewpoint-nondiscrimination or content-based speech suppression, courts should permit government action that furthers one of the architectural principles set out in that paper (sufficiency, diversity, national unity and localism, universality).
The current doctrine supposedly arbitrarily carves up the world of speech spaces into different technologies and different arenas. Each division has its own test for when government intervention is permissible. Public forums, communications by wire, private spaces like shopping malls, television broadcasts, and other speech spaces all have varying rules. The result is a confusing and inconsistent doctrinal patchwork, but it can be replaced with a simple, architectural test that would apply to all First Amendment questions about speech spaces.
“Standard of scrutiny” analysis is not appropriate where government acts to open spaces under one of the established architectural principles. These principles provide more specific and appropriate guidance than intermediate scrutiny. Courts instead ought to ask simply if a contested law promotes one of the five architectural principles and if it avoids discriminating based on viewpoint or content. If the answer to both parts is yes, then the law is constitutional.
We need norms by which to judge this “ought” claim. We could derive the applicable norms from our venerable First Amendment tradition. But, as argued at length, lawyers often propose negative-liberty norms for this normative analysis. Unless these negative-liberty norms can be justified with reasoning beyond tradition or precedent, we should not use them as normative guidelines because they do not actually reflect our tradition or precedent.
Rather, we can think of the proposed architectural principles as middle-level or mediating principles. Courts would apply them to further the more general higher-level principles (such as “democratic deliberation” or “autonomy/individual liberty”) in deciding specific issues in concrete cases. Our normative analysis could ask, essentially, whether the middle-level architectural principles (sufficiency, diversity, universality, unity) further higher-level First Amendment goals such as democracy and autonomy and whether they lead to outcomes we would support.
There are, of course, multiple conceptions of democracy and autonomy. (See pages 50-54, briefly discussing several competing conceptions) I argue that many widely accepted notions of democracy and autonomy support the argument that courts should in fact follow the architectural principles identified in my article. Both democracy and autonomy are served through citizens having access to abundant speech spaces, access for all speakers, and access to diverse sources of speech, both local and national. And I argue the architectural model would lead to more speech-protective outcomes in specific cases than would a negative-liberty model.
When it comes to theoretical implications, the identified principles suggest that legislators have long played a key role in determining the extent of First Amendment rights. Many critical speech spaces are opened up by legislative policies, such as common carrier rules for phone lines and early rules governing Internet access. The judiciary sets important boundaries within which legislatures may constitutionally act. Legislators and regulators, however, can choose from a range of discretionary policies within those boundaries. This wide legislative discretion likely leads to better policies, because the legislature and agencies are better equipped for fact-finding and are more responsive to citizens about which speech spaces should be available. For evidence of the latter, consider the recent congressional backtracking over draconian anti-piracy bills, driven largely by public outcry. Of course, neither is perfect, and both are highly imperfect, but we must choose among imperfect institutions.
The theoretical implications extend to consideration of whether the First Amendment should be seen to guarantee sufficiency and diversity, not equality. I also argue that negative and positive liberties make for clumsy, unhelpful First Amendment principles. Rather than debating whether the First Amendment is a negative or affirmative liberty, the core question is when government may or may not regulate speech and in which ways. The more specific principles identified in the article provide far more guidance than a general invocation of either negative or positive liberty.