Public Spaces, Marketplaces, and the Constitution

Shopping Malls and the First Amendment

Anthony Maniscalco

• Publisher: SUNY Press
• Year: 2015
• Print ISBN: 9781438458441, 9781438458434
• eBook ISBN: 9781438458458
• Topic: Politics & International Relations
• Subtopic: American Government
• Index: Politics & International Relations

In spite of their public attractions and millions of visitors, most shopping malls are now off-limits to free speech and expressive activity. The same may be said about many other public spaces and marketplaces in American cities and suburbs, leaving scholars and other observers to wonder where civic engagement is lawfully permitted in the United States. In Public Spaces, Marketplaces, and the Constitution, Anthony Maniscalco draws on key legal decisions, social theory, and urban history to demonstrate that public spaces have been split apart from First Amendment protections, while the expression of political ideas has been excluded from privately owned, publicly accessible malls. Today, the traditional indoor suburban shopping mall, that icon of modern American capitalism and culture, is being replaced by outdoor retail centers. Yet the law and courts have been slow to catch up. Maniscalco argues that scholars, students, and the public must confront these innovations in commercial design and consumer practices, as well as what they portend for contemporary metropolitan America and its civic spaces.

CHAPTER 1

Built Environments and the Public Sphere

Much has been written about public space, especially during the last two decades. Yet it remains an elusive idea. Efforts to articulate concepts of that space in a universal manner continue to provoke spirited responses from observers who do so differently. Defining the public sphere proves equally challenging, particularly from a democratic perspective. Yet it is plain that public spaces and spheres exist; they are spread across our topography and human geography, no matter where or by whom they are expressed in time. When I think of them, the following comes to mind: individual and collective participation in open political discourses. Though there are other ways to understand public spaces and spheres, the arguments here will reflect this communicative usage, which is traced to ancient Athens, found in the Middle Ages, and repeated in our modern vernacular. It is also manifested in Europe and the contemporary United States. And notwithstanding the many genealogies or protean qualities of publicity and space, expression remains central to politics and participation. Similarly, public spaces and spheres—whether we identify them as products of physical design, civic practice, or legal interpretation—are vital to the political experiences of people who inhabit them.

Recognizing public space and how it functions in law, design, and practice animates this examination, and this chapter specifically. Since exact meanings of public space are challenging to distinguish, I would like to start with some scholarly efforts to indicate the idea across multiple disciplines. Fortunately, these efforts have elements in common. There is also shared agreement about the political value of public space to an active public sphere outside the state. So to prepare for the statements of law to be discussed later, I will concentrate on design and practice in this chapter and the next, borrowing interpretations of public space found principally in the work of urbanists and architects, planners and geographers, and sociologists and environmental psychologists, among others.

I would also like to address a debate in political theory over the modern, liberal public sphere—in particular, whether a normative construct of that sphere can accommodate expanded civic inclusion and participation in democratic discourses. The disciplinary lines here are fuzzy, as the interpretations from the different fields mentioned above invariably overlap with political theory. Still, it is possible to differentiate them in at least one way, in my view. While the approaches from these fields tend to locate a wider array of sociocultural practices within physical places, political theory traditionally abstracts the legal and historical conditions through which collective actions manifest vis-à-vis the state, explicitly. For example, the criteria found in planning and its sister literatures typically emphasize the physical arrangement of public space. Political theory, more often than not, privileges the publicness of the public sphere.1 The distance is steadily closing, and a broader goal of this examination is to continue to enhance reciprocity between these different fields of research on laws, designs, and practices of publicity and public functionality.

Indicating Public Space on the Ground

Given the multiplicity of possible definitions and the term’s resistance to a single definition, I suggest that public space may best be indicated by the following signposts, frequently found within academic and professional expressions: (1) openness and accessibility to users; (2) support for community practice; (3) visibility and revelation; (4) diversity, tolerance, and accommodation; and (5) authenticity and unexpectedness. These five indications are hardly exhaustive. Many more might be added, for example, “the flaneur” Benjamin artfully extolled in the streets of Paris or other European coinages.2 In other words, public space might just as easily be indicated by leisurely strolls, people-watching, or private repose in places where people assemble. The signposts above seem equally useful when we explore overlapping constituents of a participative public sphere, however. I prefer to concentrate on them, therefore, while considering their effects on syntaxes of civic engagement in advance of what follows.

1. Openness and Accessibility to Users

For a space to be defined as appositely public, it must be open and accessible to users. In this sense, public space is measured by the extent of its invitation to users, and its inhabitability by them, that is, the conditions under which occupants can use it in most circumstances. Public spaces offer wide latitude to those who use them. There are numerous implications when we treat space this way, of course, and problems are easy to imagine. Even observers who defend this benchmark suggest that unlimited openness and accessibility may threaten other benchmarks, such as support for community practice. For example, Carr, Francis, Rivlin, and Stone define public spaces as

Open, publicly accessible places where people go for group or individual activities … functional and ritual activities.… While public spaces can take many forms and may assume various names … they all share common ingredients. Public space generally contains public amenities … that support [the above] activities. It can also be the setting for activities that threaten communities, such as … protest.3

Accordingly, openness and accessibility necessitate amenities capable of supporting the widest possible invitation. These amenities produce appearances of public functionality and rights of entry to any and all prospective consumers of shared space. As we will see in the next chapter, these conditions have at times inspired conflicts. Yet the periodic clashes stirred by openness and accessibility have themselves transformed the practicability of public spaces, and have likewise advanced civil, if unruly, negotiations within them.

2. Support for Community Practice

Next, public spaces anchor the uses to which individuals and groups put them. Public spaces furnish satisfactory conditions for individuals who seek to use them for repose, reflection, and deliberation. Yet they also serve assemblies of people, who are rooted in their communities, and who seek to act in some collective capacity. Advocates look to the Athenian agora described by Barker earlier, as well as modern spaces such as local parks, where neighbors gather for social or perhaps civic purposes. In this sense, “no individual is sovereign in this sphere, but each, on entering it, renounces the right to dictate the terms upon which he communes and conflicts with others.”4 When they elect to use it in their solitary capacity, individuals may be entitled to self-determination within public space. If they happen upon collective uses, though, then they yield their practices to the community. Public space thereby furnishes possibilities for autonomy, while articulating social sacrifice and inclusion through its dimensional designs and rules of use.5 It also blunts hierarchy among the people who use it. Public space is critical to pluralism, then. When we inhabit it, we create and also translate symbols that state who we are and where we stand vis-à-vis our community. Public space is a locus of mutual visibility.6

3. Visibility and Revelation

Public space gives its users the opportunity to articulate their values and beliefs. In this sense, embodied spaces are key sources of publicity itself, where identity and culture may be revealed to local audiences or others. According to Kohn, public space “create[s] a shared set of symbols and experiences that create solidarity between people who are separated by private interests … it is a shared world where individuals can identify with one another and see themselves through the eyes of others.”7 J. B. Jackson suggests that every public space be understood as a place of or for civic identification, regardless of its intended purpose:

It was, and in many places still is, a manifestation of the local social order, of the relationship between citizens and between citizens and the authority of the state … where the role of the individual in the community is made visible, where we reveal our identity as part of an ethnic or religious or political or consumer-oriented society, and it exists and functions to reinforce that identity.… Every traditional public space, whether religious or political or ethnic in character, displays a variety of symbols, inscriptions, images, monuments, not as works of art but to remind people of their civic privileges and duties.8

Jackson’s conception helps us see public spaces as the physical structures on which people configure natural or ascribed identity, and then negotiate relationships within—where they locate their identities within a wider ecology. Public space catalyzes the exposure of commonality, then, while presenting geographical opportunities for expressions of difference.9

Public space likewise conveys meaningful openings for collective self-examination and encounter. It involves others, and it perpetually occasions contact and the myriad intersubjective negotiations demanded within physical environments. While television, radio, and the Internet may valuably reinforce images of pluralism and integration, the idea here is that I identify who I am and how I fit in through the reflection of others when we are in physical proximity. Twitter and Facebook’s worldwide markets notwithstanding, flattened cyber-interaction is biased toward strategic promotion and capitalization, rather than personal self-reference.10 Its usefulness is stipulated here, yet an overreliance on the promises of a “virtual” public sphere neglects the fact that speakers select their own audiences and vice versa within mediated environments; that those environments are built almost exclusively on confirmation biases and may indeed have a diminishing impact on public space as one of contestation, too. Recent research suggests as much. So, too, do growing frustrations with “clicktivism” and “slactivism,” in which citizens appear to enact their politics by doing little more than retweeting their friends’ posts or hitting “like” from the privacy of their keyboards. In Parkinson’s interpretation of the virtual public sphere, the problem is not that we use social media, but that we confuse the medium with the message. That is, we come to believe that online representations of political phenomena are what matter, rather than seeing them for what they are: media through which real acts undertaken in physical space may be disseminated.11

Demonstrating the overlapping needs of public space and public sphere outside the state, Sennett contends that most intimate, and, therefore, pressing human interests must be addressed visibly. The alternative is a general lack of assembly, which fosters isolation and exclusion, what Durkheim described as anomie.12 In the public eye alone, Sennett writes—linking the needs above to social theory—can individual self-improvement and collective self-fashioning occur.13 Relying on this connection (and Habermas’s theory of the public sphere, which I will consider below), Warren develops the view that public space is the prime site of construction for what pragmatists such as Dewey called “organized intelligence”:

The public sphere (or, more accurately, spheres) is the space of public judgment that is supported by the associational structure of civil society.… [P]ublic spheres … provide the means for forming opinions and developing agendas.… States and markets organize themselves through the media of power and money, and for this reason limit the communicative logic that inhabits public spheres. In contrast, the institutionally “unbound” qualities of public [spaces] are essential for allowing the logics of public discourses to take their course … [T]heir very existence depends upon generating the distinctive resource of influence, or communicative power. For this reason public spheres should be able to carry information and enable judgments with more authenticity than those developed within the state.… The public sphere is, in this sense, the spatial representation of the … notion that social collectivities ought to be able to guide … with their well-considered … opinions.14

Public space is the nucleus of political association, storing self-knowledge and civic capacity. It is where public opinion is formed and made legible to the members of a political culture. At its most democratic, it is a medium for communicating rational perspectives. It may contain the relationships forged among members of civil society, and it may facilitate mutual transparency and trust in processes of participation, cornerstones of self-representation.

There may be an unintended consequence here, which at least bears acknowledgment. While Sennett and the others are saying that public space relies on visibility and revelation, these ingredients may also pose threats to freedom. There is sufficient historical evidence to recommend a cautious approach, therefore. The collective self-fashioning made possible within visible and revelatory public spaces may also open the door to the forms of peer surveillance that Michel Foucault traced in Discipline and Punish, part 1 of The History of Sexuality, and throughout much of his later work. In Foucault, the architecture and engineering of shared space are often conceived in Orwellian terms, particularly as Enlightenment values such as visibility and revelation yield a contemporary matrix of repressive relationships within the very public sphere that touted liberty.15 In this view, the paradoxes of modern public space and sphere are conveyed within their theories of liberation.

The irony is perhaps best exhibited in the political philosophy of Jean-Jacques Rousseau. Rousseau went to extraordinary lengths to build his ideas of democracy and justice atop a visible and revelatory landscape. Rousseau’s dream of democracy, best expressed in his “civil religion” construct (no less in his glorification of Geneva), attaches to the most public of spaces.16 In them, we find the transparency and trust critical to the creation of a democratic public sphere. But there are other uses for these abstract tools, and not a few totalitarian regimes in the 20th and 21st centuries have manipulated physical space, discerned dissent made visible inside, and then revealed their own sovereignty to the body politic forced to inhabit it. So, too, did post–Revolutionary War Americans, who at times violently imposed a new conformity on countrymen who displayed residual loyalty to the British crown. Draft rioters used open public spaces in New York to expose and intimidate abolitionist reformers, while visibly terrorizing African Americans during the height of the Civil War.17

Following Tocqueville in the 19th century, and Hannah Arendt in the 20th century, Sennett answers the concern above by submitting that visible and revelatory public space still promises a strong defense of freedom via mutual observations within. The transparency that indicates public space also harnesses the interpersonal responsibility behind checks and balances of power, while diminishing popular abuses. It is the interdependent ecology of public space that supports human agency and a spirit of cooperation. This agency and public-spiritedness transform users into guardians of their own moral code...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• Chapter 1: Built Environments and the Public Sphere
• Chapter 2: Public Space as Democratic Practice: A History
• Chapter 3: The Public Forum Doctrine versus Public Space
• Chapter 4: Closing the Commons in American Shopping Malls
• Chapter 5: Toward a Second Chance for the First Amendment in Third Spaces
• Notes
• References
• Table of Cases
• Index
• Back Cover