Right to the City

Normalizing Dissent in Public Spaces (Part 1)

Not only is this post long overdue (broken ribs are no joke!), but it is incomplete. It is actually a final research paper proposal for my class on Public Space and Urban Identity.

I thought I would go ahead and post the proposal in case any of you are interested in public space and public place law. Keep in mind that when I post the final product, much of the content may change. It will indeed expand, including the existing sections. So if you feel like some information is missing, hang tight!

Also, your feedback is welcome! Especially if you have ideas about how to answer some of the research questions below.

If any of you are in touch with a lawyer (or law student) who is familiar with public place law, time, place and manner restrictions, and/or the classification of public forums that would be extremely helpful as I embark on this journey! They can reach me via email at jordan.cosby@nyu.edu or through this site on the Contact page.

Thanks for your patience. As always, happy reading!

The above photo shows hundreds of people gathered to voice their dissent in Washington Square Park in January after President Trump ordered the construction of a wall along the U.S./Mexican border, and announced new deportation schemes targeting undocumented immigrants. (Photo credit: Christopher Lee for The New York Times

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Description

Hundreds of thousands of Americans have gathered in public spaces throughout the country in response to various social grievances over the course of U.S. history. The most recent upheaval has been regarding Trump’s executive orders on immigration. The executive orders and DHS memos explaining how the orders will be carried out are highly exploitative, which include: the travel ban to 6 Muslim countries; the U.S./Mexico wall; enhanced vetting processes for refugees; more than halving the number of refugees accepted into the U.S. per year; as well as massive deportation efforts of undocumented persons.

In the wake of recent protests, it is imperative to regularize dissent in public places and to eliminate laws that forbid or restrict expressive conduct in public spaces by way of privatization of public land. The categorization of public forums may also need to change in order to better preserve and protect the freedom of speech, urban life, and democracy. The research paper will explore these concepts, but will first explain the following: the importance of the democratic culture of debate and dissent in urban life; why public spaces are important to urban life and democracy; and how the privatization of government property has infringed upon First Amendment liberties under the property rights approach to public space.

The democratic culture of debate and dissent is important to urban life. Cities embody diversity, and are composed of a variety of sexual, religious, racial, gender, and socio-economic identity groups. Because of their diversity and density, cities are hubs of social innovation and knowledge exchange, thus they have a greater capacity to expose citizens to diversity of thought. Diversity of thought is integral to the urban experience and to urban life; it is a critical impetus for the democratic culture of debate between identity groups; and it produces an expressive culture in which people communicate dissent for inequality and injustice. According to Nan D. Hunter of Georgetown University Law Center, “Virtually all of the American civil rights movements since World War II have embodied the harmony between identity and dissent that exists in social practice” (2000, p. 2).

Public spaces are important to urban life and democracy, and serve as important platforms for exercising diversity of thought and First Amendment liberties. In “Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy,”  Nancy Fraser, the Professor of Political and Social Science and professor of philosophy at The New School in New York City, states that the public sphere is “indispensable to critical social theory and to democratic political practice” (1990, p. 57). There needs to be an adequate supply of material space in order for the public to exercise First Amendment liberties. However, the existence of public space – “expressive topography” – has diminished over the past several decades due to privatization and development (Zick, 2008).

The privatization of government property has infringed upon First Amendment liberties. In the third chapter of Brave New Neighborhoods, The Privatization of Public Space, Margaret Kohn (2004) points out that the laws governing public space can both enrich or inhibit a democratic culture of debate and dissent. For the case of Lee v. Krishna Consciousness in 1992, the public forum doctrine enabled the government to prohibit unwanted speech on its property because airports were not considered traditional public forums; therefore, the higher standards of constitutional scrutiny in place to protect First Amendment rights were not necessary (Kohn, 2004). The results of this case insist that not all public spaces are equal: political activity is protected in traditional public forums, whereas political activity is unprotected in other government-owned places.

We need a different approach to public space. Under the ‘property rights’ approach, public space has been reimagined as private space owned by the government. In “The Public Forum Doctrine,” Margaret Kohn (2004) states that due to this phenomenon, public space “can be regulated in whatever manner the responsible government agency sees fit” (p. 38). As Kohn points out, this same logic applies to the Lee v. Krishna Consciousness case, and this policy gives an enormous amount of discretion to administrative agencies in determining what, if any, political activities are compatible with other, ‘principal’ uses (Kohn, 2004).

Regularizing dissent as a principal behavior – or at least a normative behavior – in public spaces, increasing expressive topography, and eliminating the laws that forbid or restrict expressive conduct in public spaces will help ensure First Amendment rights are preserved and protected. A generous portion of the final paper will be dedicated to how these political fetes can be accomplished, which require further research in order to give full treatment to policy alternatives.  

Research questions for investigation

How can dissent in public spaces be regularized? What would be the normative or legal standards that need to change in order to regularize dissent in public spaces? Would regularizing dissent involve dismantling the hierarchy of ‘principal’ uses of public spaces, or placing First Amendment rights at the fore?

How can the expressive topography be increased and enhanced, especially given the various – and often opposing – interests of government and the public?

How can new approaches to public space be adopted that do not inhibit/forbid/restrict expressive conduct in public spaces (i.e. the ‘private property’ approach to public space)?  

Should the legal framework that categorizes public forums (the public forum doctrine) change to better preserve and protect the freedom of speech, urban life, and democracy? If so, what would an alternative look like? How would that alternative form of regulation be implemented? noun_766494-1

References

Fraser, N. (1990). Rethinking the Public Sphere: A Contribution to the Critique of Actually Existing Democracy. Social Text, 25(26), 56-80. link

Hunter, N. D. (2000). Expressive Identity: Recuperating Dissent for Equality. Georgetown University Law Center. Retrieved from http://scholarship.law.georgetown.edu/facpub/118   

Kohn, M. (2004). Brave New Neighborhoods. The privatization of public space. New York: Routledge, Chapter 3. Retrieved from link 

Zick, T. (2008). Speech Out of Doors: Preserving First Amendment Liberties in Public Places. Cambridge: Cambridge UP, 2008. Retrieved from link

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