By Mike Dorf
Back in February, the Northwestern University Law Review hosted a discussion with William & Mary Law Professor Tim Zick and me on the topic, "Free Speech and the Public Square After Occupy Wall Street." Because of recording glitches, the audio file was not posted but we were able to put together a transcript, which has now been posted here. We discuss a number of topics, especially the following question: To what extent, if any, does the First Amendment, entitle protesters access to private property over the objections of the owners of that private property? The answer, on which Professor Zick and I both agree, is: very little.
That's as a descriptive matter. Both of us would like to see more robust protection for speech, even on private property, at least when the speech is consistent with the purposes to which the private property has been put to use. In other words, we prefer the approach of some states, which interpret their state constitutional protections for free speech to permit at least some access to private property. In the Pruneyard case, the U.S. Supreme Court held that the federal Constitution's protection for property rights permits such expansive free speech rights, but the Court's state action doctrine does not require access to private property as a free speech matter.
Why should it? One part of the answer might be that giving free speech such a "horizontal" effect (i.e., making it apply against private actors and not just the government) would mitigate a seeming paradox of current free speech doctrine. The paradox is this: If the government designates some publicly-owned space as a park or a street or a sidewalk, then that public property will be treated as a "public forum" in which the public have a right to free speech, subject only to reasonable content-neutral time, place and manner restrictions; but if the government sells title to the property to a private landowner, the public's free speech right can be completely extinguished. A rule that says that for some free speech purposes it doesn't matter who owns the property--the government or private parties--would mean that the public maintain the same rights, regardless of the formal owners of the property.
To be sure, giving some horizontal effect to free speech rights does not eliminate all difficulties. Suppose the government takes what was once a public park and turns it into a government office building. Under the Court's doctrine, the public forum doctrine will no longer apply; instead, now the property will be deemed a non-public forum. Under the First Amendment, you have a right to hold a rally in a public park; you can't hold a rally in the office building that replaces the public park. And while the government needs only so many office buildings, we could imagine a government determined to stifle rallies selling public parks to private developers to replace them with private homes and office buildings, rather than private parks. Those private buildings would also be off limits.
Nonetheless, I think that people will demand some substantial public space. A government can privatize streets, sidewalks and parks, but it cannot completely eliminate them. I suspect that people under-value the expressive functions of open spaces--they want streets to drive on, sidewalks to walk on, and parks to play in, but once those spaces exist, the First Amendment opens them up to marches and rallies. And--I am suggesting--that should be true regardless of who owns the streets, sidewalks and parks.
There will still be hard cases, to be sure. Is Disneyland the sort of park in which the public should have a right to hold a rally? Even if such a rally would be inconsistent with the image and feel that the Disney Corporation is trying to foster (and which most patrons go to Disneyland to experience)? My tentative answer has two parts.
First, this problem is not limited to private spaces like Disneyland. Under the Court's public forum doctrine, there are hard cases about whether free speech is consistent with the use to which the government has put public property. The leading case involves a public airport and the result is quite messy.
Second, it seems to me that the answer to the question whether the First Amendment requires Disneyland or a government-owned version of Disneyland (such as a state fairgrounds) to be open to public protest should depend not only on the use to which the property has been put, but also on whether there are sufficient alternative public spaces for protest. Thus, I would not rely entirely on political forces to open up space for speech. If a community virtually eliminates public and private spaces suitable for protest activities, then I would want the First Amendment to be interpreted to open up the next-most-suitable sorts of spaces.
New York City is arguably a test case. Occupy Wall Street ended up in a technically private space in part because, at the time, Zuccotti Park had no curfew, whereas the city's public parks did. To the extent that the First Amendment should be interpreted to protect camping as a form of political protest (and I think that's a harder question than the Supreme Court allowed in the Clark case), perhaps the First Amendment should be interpreted either to provide an exception to the curfew in the government-owned parks or to grant a right to camp in the private ones.