|The Future of Free Speech 2|
An Analogy and an Ideal
The problems in individual filtering, and the value of shared experiences and unchosen exposures, are best approached through two different routes. The first involves an unusual constitutional doctrine, based on the idea of the “public forum.” The second involves a general constitutional ideal, indeed the most general constitutional ideal of all: that of deliberative democracy. As we will see, a system of individualised filtering may violate that ideal. As a corrective, we might build on the understandings that lie behind the notion that a free society creates a set of public forums, providing speakers’ access to a diverse people, and ensuring in the process that each of us hears a wide range of speakers, spanning many topics and opinions.
The Idea of the Public Forum
In the popular understanding, the free speech principle forbids government from “censoring” speech of which it disapproves. In the standard cases, the government attempts to impose penalties, whether civil or criminal, on political dissent, and on speech that it considers dangerous, libellous, or sexually explicit. The question is whether the government has a legitimate, and sufficiently weighty, basis for restricting the speech that it seeks to control.
But an important part of free speech law takes a quite different form. The US Supreme Court has also held that streets and parks must be kept open to the public for expressive activity.1 Hence governments are obliged to allow speech to occur freely on public streets and in public parks — even if many citizens would prefer to have peace and quiet, and even if it seems irritating to come across protesters and dissidents whom one would like to avoid. To be sure, the government is allowed to impose restrictions on the “time, place, and manner” of speech in public places. No one has a right to use fireworks and loudspeakers on the public streets at midnight to complain about the size of the defence budget. But time, place, and manner restrictions must be both reasonable and limited, and government is essentially obliged to allow speakers, whatever their views, to use public property to convey messages of their choosing.
A distinctive feature of this idea is that it creates a right of speakers’ access, both to places and to people. Another distinctive feature is that the public forum doctrine creates a right, not to avoid governmentally imposed penalties on speech, but to ensure government subsidies of speech. There is no question that taxpayers have to support the expressive activity that, under the public forum doctrine, must be permitted on the streets and parks. Indeed, the costs that taxpayers devote to maintaining open streets and parks, including cleaning up each day, can be quite high. Thus the public forum represents one place in which the right to free speech creates a right of speakers’ access to certain areas and also demands public subsidy of speakers.
Just Streets and Parks? Of Airports and the Internet
There is now good reason to expand the public forum well beyond streets and parks. In the modern era, other places occupy their traditional role. The mass media, including the Internet, have become far more important than streets and parks as arenas in which expressive activity occurs.
Nonetheless, the Supreme Court has been wary of expanding the public forum doctrine beyond streets and parks, perhaps on the theory that once the historical touchstone is abandoned, lines will be extremely hard to draw. Thus the court rejected the seemingly convincing argument that many other places should be seen as public forums too. In particular, it has been urged that airports, more than streets and parks, are crucial to reaching a heterogeneous public; airports are places where diverse people congregate and where it is important to have access if you want to speak to large numbers of people. The court rejected the argument, suggesting that the public forum idea should be understood by reference to historical practices; and airports certainly have not been treated as public forums from “ancient times.”
At the same time, the court has shown considerable uneasiness with a purely historical test. In the most vivid passage on the point, Justice Kennedy wrote: “Minds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media. The extent of public entitlement to participate in those means of communication may be changed as technologies change.”2 What Justice Kennedy is recognising here is the serious question of how to “translate” the public forum idea into the modern technological environment. And if the Supreme Court is unwilling to do any such translating, it remains entirely open for Congress and state governments to do exactly that.
Why Public Forums?
The Supreme Court has given little sense of why, exactly, it is important to ensure that the streets and parks are open to speakers. This is a question that must be answered if we are to know whether, and how, to extend the public forum doctrine to contemporary problems.
We can make some progress here by noticing that the public forum doctrine promotes three important functions. First, it ensures that speakers can have access to a wide array of people. If you want to claim that taxes are too high, or that police brutality against African-Americans is common, you can press this argument on many people who might otherwise fail to hear the message. Those who use the streets and parks are likely to learn something about the substance of the argument urged by speakers; they might also learn the nature and intensity of views held by their fellow citizens. Perhaps their views will be changed; perhaps they will become curious enough to investigate the question on their own. It does not much matter if this happens a little or a lot. What is important is that for some people, some of the time, speakers are authorised to press concerns that would otherwise go ignored.
On the speakers’ side, the public forum doctrine thus creates a right of general access to heterogeneous citizens. On the listeners’ side, the public forum creates not exactly a right, but an opportunity, if perhaps an unwelcome one: shared exposure to diverse speakers with diverse views and complaints. It is important to emphasise that the exposure is shared, in the sense that many people will be simultaneously so exposed, and also that it involves viewing people and claims that people might well have refused to seek out in the first instance. Indeed, the exposure might well be, much of the time, irritating or worse.
Second, the public forum doctrine allows speakers not only to have general access to heterogeneous people, but also to specific people, and specific institutions, with whom they have a complaint. Suppose, for example, that you believe that the state legislature has behaved irresponsibly with respect to crime or health care for children. The public forum ensures that you can make your views heard by legislators, simply by protesting in front of the state legislature itself.
The point applies to private as well as public institutions. If a clothing store is believed to have cheated customers, or to have acted in a racist manner, protesters are allowed a form of access to the store itself. This is not by virtue of a right to trespass on private property — there is no such right — but because a public street is highly likely to be close by, and a strategic protest will undoubtedly catch the attention of the store and its customers. Here speakers are permitted, by the public forum doctrine, to have access to particular audiences, and particular listeners have a duty, undoubtedly unwelcome in many cases, to hear complaints that are directed against them. In other words, listeners have sharply limited power of self-insulation.
Third, the public forum doctrine increases the likelihood that people generally will be exposed to a wide variety of people and views. When you go to work, or visit a park, it is possible that you will have a range of unexpected encounters, however fleeting or seemingly inconsequential. You cannot easily wall yourself off from contentions or conditions that you would not have sought out in advance, or that you would have chosen to avoid if you could. Here too the public forum doctrine tends to ensure a range of experiences that are widely shared — streets and parks are public property — and also a set of exposures to diverse circumstances. A central idea here must be that these exposures help promote understanding and perhaps in that sense freedom. And all of these points can be closely connected to democratic ideals, as we soon see.
Cass Sunstein is Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, University of Chicago. This article borrows from his forthcoming book Republic.com, to be published by Princeton University Press