Selections from J.M. Balkin, Some Realism about Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375
Copyright 1998 by Jack M. Balkin. All Rights Reserved.
. . . .
One of the legacies of the success of New Deal liberals in
establishing the preferred position of the first amendment is the
present-day distinction between content regulation and time, place,
and manner regulation. The former was subjected to the highest level
of scrutiny, while the latter was subject only to the requirement of
reasonableness, provided always that the regulation was content
neutral. The content/form distinction in speech was not the only
possible solution to the problems of first amendment law. However, in
light of the progressive purpose of protecting political dissent and
unpopular types of speech, the distinction made a good deal of sense.
By conceding the state's power to balance interests in social order
against speech rights where only time, place, and manner regulation
was concerned, left-libertarians made more plausible a rigid
prohibition against government censorship of content.
The distinction between time, place, and manner regulation and content regulation bears a striking resemblance to the process/substance distinction that figures so prominently in 20th century American law. It also mirrors, at the level of first amendment doctrine, the agnosticism about the public interest that is so characteristic of democratic pluralism. Since no one can know in advance what is in the public interest (at least before the legislature votes), people must be free to speak their minds on any subject and advocate any position, no matter how ridiculous or wicked it may appear to others. Regulation of speech henceforth must be confined to issues of procedure -- that is, where and when one may speak -- to ensure that debate on the great issues of the day takes place in an orderly manner. Indeed, one even might go so far as to say that the distinction between form and content regulation mimics at a lower level an even grander distinction in liberal political theory -- the priority of the Right over individual ideas of the Good. The state is not permitted to elevate any particular theory of the Good over any other, but it is entitled to demarcate the basic structure of rights within which private parties pursue (or, as here, advocate) their own visions of the Good.
Nevertheless, formal guarantees of liberty and neutrality, whatever their original progressive meaning, can serve quite different functions as time passes. If history has demonstrated that a formal guarantee of contractual liberty -- with no inquiry into questions of bargaining power and the adequacy of consideration -- proved ultimately unsatisfactory (because unjust) and even incoherent (because not truly substantively neutral), repeating the same moves in the area of expressive liberty is unlikely to fare any better. And indeed, what was true for economic liberty has turned out to be no less true for speech several generations later. In the process, the progressive vision of democratic pluralism increasingly has come to serve nonprogressive purposes.
One might begin the analysis of the problems of formal equality in democratic pluralism by pointing out that the ideal of eliminating content based regulation was never realized in practice. This is true even if one views the McCarthy Era cases as deviations from "true" first amendment doctrine. The illusion of content neutrality could only be achieved by viewing certain types of speech as not "speech" -- for example, obscenity, commercial speech, and "fighting words."(45) The very act of carving out these classes was akin to content regulation. Moreover, despite the constitutionalization of defamation and privacy law begun with New York Times Co. v. Sullivan,(46) many common law rules of libel and slander, which were quite directly concerned with content, remained intact. Indeed, even with respect to public figures, inquiry into content by juries was considered completely appropriate once actual malice had been proven, and the falsity of the communication was not only relevant but was essential to the plaintiff's case. And this is to say nothing of the well-known examples of fraud, perjury, and professional malpractice, which have never been considered "speech" for purposes of the first amendment.
Thus, the division of the doctrinal world into regulations of form (with relaxed scrutiny) and those of content (with heightened scrutiny) required a necessary ideological blindness. To the credit of left-libertarians, it was a blindness with which they were never fully comfortable. Justice Douglas was obviously bothered by what he viewed as the artificial exclusion of obscenity,(47) just as later judges and scholars came to be dissatisfied with the exclusion of commercial speech or an expansive definition of fighting words.(48) For this reason, many of the battles that left-libertarians fought (and won) were battles that sought to break down these categories, and give increased protection to "symbolic" speech, pornography, defamation, or commercial speech.
Even if one forgot for the moment that the firm rule of "no content-based regulation" had been purchased at the cost of clearly content-based distinctions, there was a still more troublesome problem that arose as soon as cases involving time, place, and manner regulation became a regular portion of the dockets of the federal courts. Although the form/content distinction allowed "dangerous" speech to be protected, this guarantee of liberty promised only a formal liberty of speech and only a formal equality of opportunity for its exercise. Yet as is often the case, guarantees of formal liberty and formal equality generally favor those groups in society that are already the most powerful. Guarantees of formal liberty and formal equality generally do not guarantee, and indeed may sometimes even thwart, substantive liberty and substantive equality.
This has proved to be the case in first amendment law. Even as the formal liberty of speech -- freedom from content-based censorship -- was enshrined in Brandenburg v. Ohio, the federal courts found themselves faced with increasing difficulties concerning the question of substantive liberty. At its inception, this problem was conceptualized as the issue of access to government property or, still more technically, the question of what constituted a "public forum." And this question, seen as the paradigmatic issue in time, place, and manner regulation, has led to less and less protection of speech.
The public forum cases of the past twenty years have produced exactly what one would expect from a guarantee of formal equality in conditions of substantive economic inequality. They have demonstrated that a low level of scrutiny in cases involving time, place, and manner regulation will produce not only less speech overall, but less speech from the least powerful groups in society.(49) As Justice Marshall pointed out in Clark v. Committee for Creative Non-Violence, most regulators, although not opposed to free speech as an abstract principle, nevertheless like a quiet life.(50) For this reason, they have no incentives to increase access any more than is constitutionally required. And if the Constitution requires less and less, then access will diminish accordingly. The result is that the groups who most need inexpensive or free access (usually the groups most on the outs) are the ones who end up bearing the brunt of content-neutral regulations.(51) The notion that protection of formal equality of economic liberty can lead to unacceptable degrees of substantive inequality has been understood for many years; it should hardly be surprising, then, that a similar analysis applies to the liberty of expression.(52)
As I have noted above, the problem of access traditionally has been
viewed in terms of access to government property; this has become the
paradigmatic situation in which the problem arises. Nevertheless,
another group of cases that have reached the federal courts have been
conceptualized as involving the question whether a speaker should
have access to what was nominally private property.(53)
Interestingly, the pro-access strategy has been to assimilate these
cases into the public forum cases. The goal has been to show that
there was "state action" after all -- that the private
property in question was effectively equivalent to the sort of
government property that was in turn thought to constitute a public forum.
I believe that this general approach to the issue of access needs to be rethought. I do not mean to suggest that it is not useful in some cases, or that considerable good has not come from it. The public forum/state action debate correctly captures an important idea that the legal realists bequeathed to us in the area of economic liberty -- that the distinction between public and private law, and between public and private abridgements of liberty, is both tenuous and socially constructed, and that it can be made to disappear in certain contexts when pressed sufficiently. Nevertheless, I believe that the strategy of showing that private forums are really analogous to public forums is unhelpful in many cases because it simply reasserts the distinction between public and private abridgement of rights in a different way.
The public forum/state action debate assumes that the right of access in the ordinary case is something that one has to government property, and that, absent a showing of "government-like" behavior, private parties do not need to give access to speech to other private parties. The assumption that the public forum and state action cases shared was that one had to show state interference (or its equivalent) with speech in order to demonstrate a restraint on liberty. What this approach neglects is that private restraints on liberty may have been the most serious obstacles to the exercise of free speech rights all along, even in cases that appear at first glance to involve only governmental restraints on liberty. Thus, the problem with the argument that private actors are really state actors is not that it fails to note the similarity of public and private, but that the form of analogical reasoning goes in the wrong direction.
To understand this point, let us go back to the seminal case on public forum law, Hague v. CIO.(54) Hague, like many other public forum cases, involved a group of protesters (here the CIO and the ACLU) who wished to protest particular conditions they disagreed with and sought to gain members and public support through organizing public meetings and distributing literature.(55) Groups such as these have a message to deliver, but where are they to deliver it? If they owned real property, the answer would be simple. They could use their own property as the site of their demonstrations: They could march around their own houses and distribute literature in their own front yards.(56)
However, what is crucial to situations in which protesters seek access to a public forum is that most of the protesters in such situations do not, in fact, own much property. Moreover, one of the most effective places for them to get their message across might be on the largest or most centrally located plots of land in the city, where, we may assume, they own no property at all.(57)
Of course, the possibility exists that the strikers could purchase the right to form a picket line on the land of a centrally located landowner, or one whose property was across the street from a particular employer or government official whose practices they wished to protest. That is to say, they could go into the market and buy rights to the use of another's property for purposes of expression. However, the central problem in this case is, once again, that the strikers might not have a great deal of property (real or otherwise), and their budget constraints might well prevent this solution to the problem of access.(58)
If there were no guarantee of public forums like streets and parks, and we left the strikers to the vicissitudes of the marketplace, I suspect many would think that their free speech rights had been denied, even though they were formally guaranteed the right to speak. To be sure, a Lochner-era formalist might argue that if one lacks sufficient economic power to purchase a place to protest, this fact alone does not constitute a direct infringement of liberty by the state. Yet just as a legal realist might argue that economic liberty is more than the right to sign contracts of adhesion, we understand that expressive liberty is not simply the right to make noises in the air directed to no one in particular. Nor, we might add, is the freedom of the press simply the right to place particular marks on pieces of paper, which are then never seen or read again. Effective communication, or rather its substantive possibility, is an unavoidable component of the liberty of speech, just as effective bargaining, or its substantive possibility, is an essential component of economic liberty. How effective an exercise of liberty must be guaranteed, of course, is a difficult problem. It is a problem that cannot be solved in the abstract. The legal realists were quite aware of this fact about economic liberty, a recognition that was intimately related to their distrust of conceptualism and formalism. For them, whether one had real liberty of contract was always a matter of degree.
From the foregoing discussion, you can see that the reason why public forums are essential to liberty of expression is that otherwise one's right to speak would depend upon one's ability to purchase property rights from private parties. If one had little property, then one would have no liberty in fact, even if a formal right to speak were guaranteed. Thus what appears to be a question of the individual's rights against the government actually is related to the private power of property owners -- a power that in turn results from legal protections afforded to the economic system through the rules of private property and criminal trespass.
The existence of access thus depends upon the state in two senses -- first, as the controller of its own property, and second, as the creator and sustainer of property rights that allow private parties to deny access unless they receive compensation. When Justice Black defended the government's right to deny access in Adderley v. Florida on grounds that "[t]he government, no less than a private owner of property, has the right to preserve the property under its control for the use to which it is lawfully dedicated,"(59) he said more than he knew. One can analogize the government's "rights" to those of the property owner only because the state has already decided that the owner's property rights trump any contrary interest of third parties in free expression.(60)
Once we understand that the problem of access is a problem of both private and public power, several alternative solutions present themselves. First, the government could provide a voucher system to subsidize expressive activity. People could use their vouchers to purchase access to private property for communicative purposes. Second, the government could tax all private landowners (and by analogy, other owners of communication-producing properties), unless they agreed to make their property a forum available for expression at certain times. Third, the government could simply alter existing property rights to create an easement that would require private landowners (and other owners of communicative property) to allow protests without compensation.
The fourth alternative is what Justice Roberts actually did in Hague v. CIO. He created "a kind of First Amendment easement" against the government for the use of streets and parks.(61) One might think that this is better than the other solutions, especially a tax or a system of easements on private property. When the government grants access to a public forum, the argument goes, it is not thereby diminishing the property rights of individuals. Moreover, the public forum solution, unlike the voucher system, does not appear to turn the first amendment into a "positive" liberty -- a right to wealth or government subsidy akin to welfare rights or education. It preserves the idea that civil rights are essentially negative rights -- the right to have government not do something to you.
Nevertheless, this analysis is flawed. Even when a public forum is created, the government is still engaging in a form of redistribution. It is transferring the power of the state to certain citizens who want to use the forum for expressive activity and away from other citizens who want the streets and parks kept clear of demonstrations and protests. Grants of access limit some private interests as much as they empower others. There is no better example of this than Schneider v. State, in which the Supreme Court held that the interest in free speech was so great that a municipal ban on leafletting violated the Constitution.(62) The effect, as Professor Tribe points out, was that the state was forced to subsidize such expressive activity by absorbing the costs of extra litter prevention.(63) Interestingly, Professor Tribe conceptualizes the problem of governmental access as a governmental subsidy for speech. His analysis is quite correct, and we could take it one step further by noting that the governmental subsidy is also a transfer of power away from private individuals as well -- for now there are higher taxes, and now one's cheerful walks through the park will be disturbed by handbills thrust in one's face and lying beneath one's feet.
One might insist nevertheless that there is an important difference
between the creation of first amendment easements in government
property and redistribution from private individuals. If the
government grants an easement against a particular piece of private
property, then the burden of redistribution falls on a specific
individual or a relative handful of individuals. In contrast, the
redistribution involved in the creation and maintenance of a public
forum is spread in theory over a larger group of individuals, all of
whom (for example) use the streets and parks. But this argument does
not prove that government does not or should not redistribute for the
purpose of guaranteeing expressive liberty. It merely demonstrates
that it is in some cases better and fairer to spread the
redistributive burden over as large a group as possible. Assigning
general tax revenues for a voucher system or creating a uniform
system of easements on everyone's property would satisfy this demand
for generality equally well.
The point of this exercise in reconceptualization is simply to note that modern first amendment doctrine has seen the issue of access primarily in terms of access to public property and only in the exceptional case as an issue of access to private property. Moreover, even these exceptional cases must be explained in terms of their similarities to public forums. I suggest that it might be more fruitful in some cases to think of it the other way around. Perhaps we should reconceptualize access to public forums as a special case of access to private forums, in which the government transfers power from one group of private citizens to another by means of control of governmental property, just as it does so through the use of property and trespass laws. What is the advantage of this reconceptualization? The more orthodox view of access tends to discomfit people who think of the first amendment as a negative right -- a right to be free from governmental interference. Requests for access look too much like what in one sense they are -- requests for affirmative assistance from the government. On the other hand, if one sees the problem of access as essentially a division of power between speech rights of individuals and property rights of other individuals, then the issue of affirmative versus negative rights vanishes, just as it does in the case of defamation. No one thinks of New York Times Co. v. Sullivan as establishing an affirmative right to exploit the reputational "property" of public officials. Rather, it is seen as a balancing of competing private interests in speech and reputation.
Viewed in this way, we should stop trying to show that cases such as Hudgens v. NLRB(64) or CBS v. Democratic National Committee(65) raise the same issues as the public forum cases. For that way of thinking simply reinforces the exclusively public nature of first amendment law by trying to assimilate all of our problems of speech regulation to that model. Rather, we should try exploring why the public forum cases raise the same issues as Hudgens and CBS v. Democratic National Committee -- that public expansion or contraction of rights is really an issue of relations of power between private individuals.(66) I thus believe that a legal realist approach to the first amendment involves collapsing the distinction between public and private power in specific contexts, but I suggest we do so in the opposite direction. When we do so we can begin to reinterpret first amendment law in terms not of governmental control, but rather in terms of private power and subordination.(67)
45. And indeed, this is what the Supreme Court did in effect in Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) (describing libel, obscenity, and fighting words as "no essential part of any exposition of ideas"). Putting aside the particular categories actually carved out, I suspect that the basic strategy of Chaplinsky -- defining away particular types of speech -- was intellectually necessary to the success of democratic pluralism. A theory of formal equality of all speech -- including these categories -- otherwise could never have gotten off the ground.
47. See, e.g., Paris Adult Theatre v. Slaton, 413 U.S. 49, 70 (1973) (Douglas, J., dissenting); Miller v. California, 413 U.S. 15, 37 (1973) (Douglas, J., dissenting); A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 383 U.S. 413, 424 (1966) (Douglas, J., concurring in the judgment).
48. See, e.g., Redish, The Value of Free Speech, 130 U. PA. L. REV. 591 (1982) (justifying expanded protection for obscenity, fighting words, and commercial speech under theory that first amendment protects "individual self-realization").
49. See infra note 51 and accompanying text.
50. 468 U.S. 288 (1984) (Marshall, J., dissenting).
51. Id. at 313-16. For further discussion of the problem, see Baker, Unreasoned Reasonableness: Mandatory Parade Permits and Time, Place, and Manner Regulations, 78 NW. U.L. REV. 937 (1983); Farber & Nowak, The Misleading Nature of Public Forum Analysis: Content and Context in First Amendment Adjudication, 70 VA. L. REV. 1219 (1984); Goldberger, Judicial Scrutiny in Public Forum Cases: Misplaced Trust in the Judgment of Public Officials, 32 BUFFALO L. REV. 175 (1983); Neisser, Charging for Free Speech: User Fees and Insurance in the Marketplace of Ideas, 74 GEO. L.J. 257 (1985); Post, Between Governance and Management: The History and Theory of the Public Forum, 34 UCLA L. REV. 1713 (1987); Redish, The Content Distinction in First Amendment Law, 34 STAN. L. REV. 113 (1981); Stone, Content-Neutral Restrictions, 54 U. CHI. L. REV. 46 (1987). Note that the traditional reasons given against licensing schemes in the area of content regulation are also perfectly good arguments against content-neutral, regulatory schemes. Licensing schemes make it easier for regulators to deny access; they lack formality and procedural safeguards; they shift the burden of access to the person seeking a license; regulators have institutional incentives to avoid controversy and social disruption; and regulators also have institutional incentives to find reasons to regulate in order to justify their existence. See Emerson, The Doctrine of Prior Restraint, LAW & CONTEMP. PROBS., Autumn 1955, at 648, 656-60. The fact that courts do not take these arguments as seriously in content-neutral schemes of regulation is simply another consequence of the distinction between form and substance in modern first amendment law.
52. Of course, there is a further connection between the strategy of content neutrality and the resulting substantive inequality that public forum doctrine has generated. In speech, no less than in contract, guarantees of substantive equality require one to treat particular persons differently because of their preexisting status and power. Yet often one of the best ways to identify the stronger or weaker parties is in terms of who they are and what they stand for. This sits uneasily with the requirement of content neutrality.
53. E.g., Marsh v. Alabama, 326 U.S. 501 (1946) (access to streets of company town for distribution of handbills could not constitutionally be denied); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968) (peaceful labor picketing of business enterprise located within shopping center constitutionally protected); Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) (upholding privately owned shopping center's ban on distribution of handbills when handbilling was unrelated to shopping center's operations); Hudgens v. NLRB, 424 U.S. 507 (1976) (overruling Logan Valley); PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980) (holding that state constitutional right to enter shopping centers for speech and petitioning did not violate free speech or just compensation rights of shopping center owner). See generally Schauer, Hudgens v. NLRB and the Problem of State Action in First Amendment Adjudication, 61 MINN. L. REV. 433 (1977).
54. 307 U.S. 496 (1939) (plurality opinion).
55. The actual facts of Hague v. CIO are considerably more complicated. They involve the efforts of the Mayor of Jersey City, Frank Hague, to break up the CIO's organizing efforts by means of an ordinance that prohibited all public meetings in public places without a permit. In essence, Mayor Hague's strategy was to make it impossible for the CIO to engage in expressive activities anywhere within the city limits. See Hague v. CIO, 101 F.2d 774, 778-80 (3d Cir. 1939), modified, 307 U.S. 496 (1939). The district court's opinion, Hague v. CIO, 25 F. Supp. 127 (D.N.J. 1938), makes interesting reading if only for its unusual practice of juxtaposing literally pages and pages of short quotations on the subjects of democracy and the rights of free speech.
56. Assuming, of course, that such use of their own property did not create a nuisance. But this is simply another way of stating the point that one's freedom of expression is limited by private rights created and enforced by the state.
57. Again, the situation in Hague itself was more complex. In Hague, the CIO and the ACLU planned open air meetings and demonstrations in several different places in Jersey City. Many of the organizers came from outside of the state of New Jersey and the city of Jersey City. Fear of outside labor agitators descending upon Jersey City was precisely why Mayor Hague was so determined to use bullying tactics to keep them away. For example, protesters were routinely rounded up by police and deposited outside the city limits. Moreover, in Hague, the Jersey City police even tried to prevent gatherings on private property owned by the CIO by arresting persons found at the CIO headquarters, searching the premises and confiscating circulars and handbills. See 101 F.2d at 778. Finally, I should note that today labor picketing is treated quite differently from other forms of protest, and the actual fact situation in Hague v. CIO itself might be conceptualized differently under present-day doctrines of federal labor law. In my discussion of first amendment issues, therefore, I assume that the nature of the protest does not place it under the more stringent rules regarding labor picketing. For example, imagine that the strikers in our Hague-like hypothetical are protesting in support of the general principles of free speech and political association.
58. There are further problems, of course. The owner of the choicest parcels might be unwilling to bargain at all, perhaps for ideological reasons. It is also possible that there would be problems of monopoly. A landowner might realize that no other landowner had anywhere near as effective a location in which to protest, and seek to extract monopoly profits. Even if there were more than one landowner, or more than one location in which effective picketing could take place, the landowners in the most desirable locations would probably charge more, all things being equal, and thus the strikers might not be able to afford a protest at a level of effectivenes that would make the picketing worthwhile. These possibilities, however, simply reinforce my fundamental point: The effective exercise of speech rights in this case depends upon economic power to purchase property rights. The effectiveness of the protest varies according to the property rights of others because these rights determine the price of access. If market imperfections or high transaction costs make such exchanges even more difficult, this simply enhances the nature of the difficulty and the importance of already owning property suitable for expressive purposes.
59. 385 U.S. 39, 47 (1966) (holding that the state could deny access to entrance of jail and jail driveway for demonstration by students protesting arrest and incarceration of fellow students).
60. As the Supreme Court explicitly held in Lloyd Corp. v. Tanner, 407 U.S. 551, 567-68 (1972).
61. The phrase is Professor Kalven's. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP. CT. REV. 1, 13; Stone, Fora Americana: Speech in Public Places, 1974 SUP. CT. REV. 233, 238. The analogy between first amendment access and traditional property easements, however, already appears in Judge Clark's district court opinion in Hague in which the court speaks of "an easement of assemblage [in] . . . parks." Hague v. CIO, 25 F. Supp. 127, 145 (D.N.J. 1938), modified, 307 U.S. 496 (1939); see also id. at 146, 151.
63. L. TRIBE, AMERICAN CONSTITUTIONAL LAW 964, 998 (2d. ed. 1988).
64. 424 U.S. 507 (1976) (upholding right of private shopping mall owner to exclude labor picketers).
65. 412 U.S. 94 (1973) (first amendment does not require broadcast licensees to sell advertising time to all private groups for expressive purposes).
66. A good example of the interrelation between the scope of public access and the balance of private power is Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). In Perry, a school district permitted an incumbent teacher's union to use the employees' interschool mailboxes while denying access to a rival union. The Court held that the denial of access did not violate the Constitution because the mailbox system was not a public forum. However, the school board's access policy was actually the result of a collective bargaining agreement with the incumbent union when it defeated the rival union in a representation election. The access policy in the collective bargaining agreement was obviously designed to help perpetuate the incumbent union's status by making it more difficult for the rival union to communicate quickly and easily with all of the teachers. The Court's decision, phrased in terms only of the private citizen's right of access to public property, nevertheless clearly had ramifications for the relative economic and political power of two private parties, namely, the unions.
67. For this reason, I believe that Professor MacKinnon's work on pornography (although it is not specifically about issues of access to communicative technology) is of great importance to other areas of first amendment law. For MacKinnon has emphasized over and over again that rights to speak involve relations of power between private individuals. Cf. C. MACKINNON, supra note 7, at 155-56 (separation of public and private conceptions of right in first amendment law supports and facilitates domination of women by men and permits men to silence women).
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