Wednesday, February 8, 2012

Property & the First Amendment

This week, Concurring Opinions hosted a online symposium on the relationship between the First Amendment and property.  Specifically, the symposium has explored Marvin Ammori’s article, First Amendment Architecture, and the important concerns that he raises about doctrine and normative theory concerning speech spaces.

Here’s the abstract for Marvin’s article:

The right to free speech is meaningless without some place to exercise it. But constitutional scholarship generally overlooks the role of judicial doctrines in ensuring the availability of spaces for speech. Indeed, when scholarship addresses doctrines that are explicitly concerned with speech spaces such as public forums and media or Internet forums, it generally marginalizes these doctrines as “exceptions” to standard First Amendment analysis. By overlooking or marginalizing these decisions, scholarship has failed to explicate the logic underlying important doctrinal areas and what these areas reveal about the First Amendment’s normative underpinnings.

This Article adopts a different interpretive approach. It identifies and interprets the Court’s role in ensuring, requiring, or permitting government to make spaces available for speech. Across a range of physical and virtual spaces, the Article identifies five persistent judicial principles evident in precedent and practice that require or permit government to ensure spaces to further particular, substantive speech-goals.

Further, rather than quarantining these speech-principles as exceptions to the standard analysis, this Article explores the significance of these principles for “core” speech doctrine and theory. The resulting analysis poses fundamental challenges to conventional wisdom about the First Amendment and the normative principles generally believed evident in doctrine. Consequently, the Article provides timely guidance for legislators and judges, particularly for shaping access to the technology-enabled virtual spaces increasingly central to Americans’ discourse.

Symposium Introduction here.

Commentators posts:

1.  Brett Frischmann: Thoughts on Ammori’s Free Speech Architecture and the Golan decision

2.  Timothy ZIck: Speech and Spatiality

3. Marvin Ammori: First Amendment “Exceptions” and What the First Amendment Means (#2)

4.  Marvin Ammori: Baseline Spaces for Speech

5.  Brett Frischman: One more principle: Nondiscrimination

6.  Marvi Ammori: Legislated Spaces

7.  Marvin Ammori: Access for Diverse & Antagonistic Sources

8.  Timothy Zick: Architectural Trusteeship

9.  Gregory Magaria: Redistinguishing “Ought” from “Is,” or Why I Like the World Less Than Marvin Does

Steve Clowney

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