by Timothy Zick. Cambridge: Cambridge University Press, 2008. 362pp. Hardback. $90.00/£45.00. ISBN: 9780521517300. Paper. $29.99/ £15.99. ISBN: 9780521731966. eBook format. $24.00. ISBN: 9780511460272.
Reviewed by Jerome O’Callaghan, Associate Dean, Arts and Sciences, State University of New York at Cortland. Email: jerome.ocallaghan [at] cortland.edu.
Try to imagine the reasons why Martin L. King’s famous “I have a dream” speech of August, 1963 holds such a revered place in American cultural and political history. No doubt one reason is the inspired oratory; another is the text; another is the author. Beyond all that is the size of the crowd, the immediate context of other civil rights protests, and, last but not least, is the location: Washington, D.C.’s National Mall. There are few, if any, more fitting sites for a civil rights event of that magnitude. Would the speech have been the same if delivered outside Union Station in Los Angeles, or at Pike Place Market in Seattle? As Timothy Zick suggests in his new volume, SPEECH OUT OF DOORS, the very meaning of a public speech derives in good part from its location.
Zick argues that the First Amendment free speech guarantee was created in the context of public debate in public spaces. Dr. King’s speech is a direct beneficiary of that free speech commitment. The idea of individuals combining to make their voices heard in parks, on streets, outside government offices, is surely central to the goals of the first amendment, the Bill of Rights, and indeed, the Constitution.
Speech needs protection, and so does a place for speech in public. Zick has undertaken to highlight the importance of location/place/space in the realm of free speech. This may seem quixotic in today’s endlessly networked world; almost anyone, or any fool for that matter, can post a blog, comment on the New York Times web site, or create a web page. We are all broadcasters now; free speech has never been so free; a huge audience is just a click away, and so on. Yet imagine if the world wide web had been available in 1963; Dr. King might have posted his speech to a web site and not bothered with the hassle, the heat of Washington, D.C. – no muss, no fuss. The web generates its own islands of understanding, but it cannot deliver meaning the way that Dr. King delivered meaning on August 28th, 1963. Public meetings and public protests, whether large or small, play an important and inimitable part in the machinery of democracy. In Zick’s terms, physical space trumps virtual space in “proximity, symbolism, emotion and solidarity” (p.4). Take that, Twitter.
In recent years, public space for expressive purposes has decreased in quality and quantity, and Zick provides a thorough review of the various challenges to free speech in public places. The “messy vitality” (p. 201) of public space is in the process of being homogenized – this is the core of Zick’s [*734] concern, and he enlists not just legal observers, but also sociologists, urban planners and architects to support his point. SPEECH OUT OF DOORS relies on an analytical framework where public space is treated as an “expressive topography” subdivided into four categories: Embodied Places, Contested Places, Non Places, and Inscribed Places; one chapter is devoted to each. In addition, he covers Militarized Places, Networked Places and the peculiar situation of college campuses.
“Embodied place” – this is the personal space that matters in face-to-face encounters. It is the space in which leafleters, beggars, pollsters and proselytizers do their business. Contested places are specific sites that amplify the message by virtue of the space itself, or the audience – the classic examples are court houses, state houses, and segregated facilities. “Non Places” – these are places widely used by the public but expressive activity is generally forbidden, typically malls and airports. Inscribed places are “sacred venues” for public democracy; (e.g. National Mall); places having an “outsize influence on public life” (p.187). They are closely controlled via time, place and manner regulations.
For all the ways to slice and dice the space out there, the core of Zick’s concern lies in the array of powerful forces lined up against free speech in public spaces. There is the privatization of public property, the expansion of malls and gated communities, the development of buffer zones, the invention of prison-like free speech ghettoes (supposedly serving as dedicated expressive spaces), the public’s desire for undisturbed convenient shopping, campus administrations containing free speech in public as much as possible, the expanding bureaucracy behind permit requirements, the Supreme Court’s public forum approach (aka instant ossification of public spaces), and the Supreme Court’s routine support for time, place and manner regulations.
Zick has assembled an impressive catalog of erosion of this pivotal democratic right. His examples are impressive and persuasive. Gatherings of world leaders, presidential campaigns and party-political national conventions – these are the events that commonly become “militarized places.” The extent of regulation/control of protest is overwhelming, or at least that is the goal. Militarized places invariably involve lots of concrete, metal fences and barbed wire; that is how officially-designated “demonstration zones” take on the character of a prison exercise yard. This, we are told, is where free speech belongs. Courts have allowed “security” to become a carte blanche for government to avoid contact with protesters. Curfews are helpful too – think of the court-approved 25 block curfew zone established by the Mayor of Seattle after protestors got too close to a World Trade Organization meeting in a downtown conference center.
Once upon a time the Supreme Court was willing to say that some private property was, by virtue of its use, endowed with public purpose, and from that First Amendment obligations followed. The case was MARSH v. ALABAMA, decided in 1946. Thirty years later the Supreme Court voided that approach, and now private property, no matter what its use, no matter how [*735] vast, is exempt from any First Amendment regulation (HUDGENS v. NLRB). This is the rise of the “non-place” in Zick’s scheme, particularly the malls and airports that would normally attract leafleters, pollsters, petition-gatherers, proselytizers and beggars.
Things are not much better on college campuses; universities have followed the trend of regulation of public free speech into certain defined, and often pointless, spaces. This does not sit well with the special place universities hold in relation to the marketplace of ideas. It is reassuring, though Zick does not emphasize the point, that many universities have failed in their attempts to defend free-speech zoning in court.
One of the ironies of the timing of this review is that in the month of August 2009 many news stories were devoted to town hall meetings across the country disrupted by opponents of a new health care reform proposal. Whatever one makes of the politics involved, it is clear that free speech in public spaces can still be “vitally messy” despite the best intentions of those organizing public events. This might relieve some of Zick’s pessimism. In this context, Zick might have discussed the evolution of “flash-mobs” and their potential for undermining the entire regulatory apparatus that has emerged under the time-place-manner doctrine. I would also like to have read his reaction to the KELO eminent-domain case, or more accurately, the backlash to the KELO decision. Likewise his take on the famous neo-Nazi march in Skokie (documented in David Hamlin’s THE NAZI / SKOKIE CONFLICT) would be interesting to read; it would fit perfectly with his brief in this text.
While Zick’s analysis went a long way to persuade me that the encroachment on free speech in public spaces is real and increasing, there are some caveats to consider. He lost me in the chapter on networked places, a chapter with a focus on surveillance (those CCTV cameras proliferating in urban areas) and “sous veillance” (on the street amateur recording of public disturbances, police behavior, e.g., the Rodney King video). He argues that pervasive surveillance has a First Amendment chilling effect, which suggests that the First Amendment guarantees a right to anonymous use of public space. The courts will not go that far, nor would I. If it is legitimate to record my family standing outside a landmark building (as tourists all over the world are wont to do), it seems equally legitimate to record police behavior or misbehavior in that place. Would government officials, including police, have fewer rights to record in that space? The interesting question in my view is not the question of a right of anonymous use, but the question of access to government records. To the extent that government maintains so many record-keeping devices (e.g., there are 4,400 CCTV cameras below 14th Street in Manhattan, not all in private hands), what obligation does Government have to make the recordings available to the public?
One other weak point in Zick’s analysis is his tendency to end chapters with bland and vague exhortations. The net effect is to say: if we all step back and remember the values of the First Amendment, we can do better. Who would disagree? “Courts must ensure adequate breathing space for spatial contestation” (p.132). “A mandatory course for [campus] administration on [*736] the First Amendment might be a sound idea” (p.287). “Protesters must be increasingly media – savvy” (p. 256). “Courts cannot preserve the expressive topography by themselves. Those responsible for the condition of our public physical infrastructure – public planners, zoning officials, architects – must also be aware that their shaping and altering of public places often affects an expressive topography” (p.328). Given his thorough analysis of the relentless encroachment on public space by a variety of forces of modernity, these responses, though logical, were strangely unconvincing.
In the details of Zick’s argument there are some issues to dispute, but in the big picture it is hard to find fault. This is a well-written text, making an important argument about a vital constitutional guarantee. Zick is surely correct when he argues that in American history people take to the streets to stake a claim not just to legitimacy, but to the right to participate in government. Scores of cases featuring Jehovah’s Witnesses and Civil Rights marchers teach that lesson. There is an important legacy there – one that should be guarded with greater care than we see today. SPEECH OUT OF DOORS makes the simple claim that we have squandered a great resource, and it is now time to reverse course.
Hamlin, David. 1980. THE NAZI / SKOKIE CONFLICT: A CIVIL LIBERTIES BATTLE. Cambridge: Beacon Press.
HUDGENS v. NATIONAL LABOR RELATIONS BOARD 424 U.S. 507 (1976).
KELO v. NEW LONDON 545 U.S. 469 (2005).
MARSH v. ALABAMA, 326 U.S. 501 (1946).
© Copyright 2009 by the author, Jerome O’Callaghan.