Speech and Spatial Tactics

As the Supreme Court has observed on many occasions, "First Amendment freedoms need breathing space to survive."1 This is so in the quite literal sense that the exercise of expressive rights requires adequate physical space. Given its primacy, it is remarkable how little attention has been given to the concept of "place" in First Amendment doctrine and theory. Place has always occupied the background rather than the foreground in free speech jurisprudence. It has been treated as a locale for events, a marker for expressive rules and procedures, an inert container of speakers and speech, a thing, a res. Free speech jurisprudence treats place categorically, defining expressive rights in terms of the character of the property or forum involved. It is far more concerned with questions of "what" speech is being regulated and "why" than with questions of "where" speech occurs or how speech and spatiality are connected. It is a serious mistake to view place as merely an inert container or a backdrop for expressive scenes. Place can be a powerful weapon of social and political control. Today speech, including core political speech, is being disciplined, controlled, and even suppressed through a variety of spatial techniques. Consider the following recent examples: * the free speech cage, an architecture of mesh fabric, coiled razor wire, chain-link fences, and jersey barriers, constructed to contain protesters at the 2004 Democratic National Convention;2 * the "steel cocoon" that emerged within the District of Columbia prior to the 2005 presidential inauguration,3 and the confinement of protesters to spaces behind bleachers and fenced-in areas more than 100 feet from the inauguration parade route;4 * the 25 block "restricted zone" that prohibited all protests near the 1999 World Trade Organization meetings in Seattle;5 * the 1/2 block "frozen zone" or "bubble" used to shield New York City Mayor Michael Bloomberg from union members protesting at the 2004 Republican National Convention;6 * the use of metal barricades, or "pens," to confine and control those protesting the Iraq War;7 * statutory and injunctive "free speech" and "speech-free" zones erected around abortion clinics and various other public accommodations;8 * campus "free speech zones" that confine First Amendment activity to narrowly circumscribed places;9 and * recent laws in several states establishing protest zones for antiwar speech near funerals.10 Under current First Amendment doctrine, restrictions on the place where expression may occur are routinely upheld.11 The First Amendment nominally requires that these sorts of restrictions, like content-neutral restrictions on the time and manner of expression, satisfy an "intermediate" level of scrutiny.12 But in truth this standard is little more than a weak strain of rationality review.13 Courts generally tend to view spatial restrictions as unrelated to expressive content. They are treated as inarguably rational means of serving governmental interests such as maintaining order and security.14 And, indeed, some such regulations are necessary to preserve a minimal degree of order. Parade routes, for instance, must sometimes be altered to account for such realities as traffic and pedestrian flow. The First Amendment is not a license to speak wherever one pleases. But this basic principle does not afford the state plenary authority to suppress speech on matters of political and social import by significantly displacing or confining it. Purportedly neutral restrictions on place can and do cancel expressive and associative rights. One need look no further than the aforementioned Boston speech cage for affirmation of this.15 This Article does not dispute that the state must sometimes control the place of expression. Space, after all, is a limited resource. My right to speak in a certain place often will impact others' enjoyment of that place. …