Q&A: First Amendment Scholar Explores "Speech Out of Doors"

A Q&A with Professor Tim Zick, author of Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge University Press).

Zick has written on a wide variety of constitutional issues, with a special focus on issues of free speech and federalism. He began his career at Williams & Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the U.S. Supreme Court, and then moved to Foley Hoag in Boston. He clerked for Judge Levin H. Campbell of the First Circuit Court of Appeals and worked as a trial attorney in the Department of Justice's Federal Programs Branch, where he defended the constitutionality and legality of a variety of federal programs and statutes. Described as a rising superstar in constitutional law, he joined the W&M faculty in August 2008.

Q: Professor Zick, how did you become interested in writing about the First Amendment?

A: Freedom of speech has been a longstanding interest of mine.  I had actually written on the subject prior to entering academia.  But one particular work experience really confirmed my passion for the subject.  Just before I entered academia, I was working at the Department of Justice.  I was a member of the trial team that defended the Children's Internet Protection Act (CIPA), which required that public schools and libraries place limits on access to obscene and other sexually explicit materials on their Internet terminals.  The case ultimately went to the Supreme Court (see U.S. v. American Librarian Association 539 U.S. 194 (2003)), which rejected several First Amendment challenges to CIPA.  My work on the case involved, among other things, researching the availability of sexually explicit content online (with the permission of the Attorney General, of course) and interviewing librarians, who had challenged the law, across the country.  Some press accounts of the trial reported that I was waving a "smut binder" at librarians in court.  Aside from being a thoroughly enjoyable experience, the CIPA trial was an invaluable educational opportunity.  

Q:  Your book is titled Speech Out of Doors. What 's it about?

A:  The book examines a variety of traditional First Amendment activities -- proselytizing, begging, protesting, parading, picketing, etc. -- that occur in physical as opposed to "virtual" spaces and places.  The phrase "out of doors" in the title has a double meaning - literally, of course, in outdoor spaces and places and, as it was used in colonial times, outside what one might consider the mainstream political process.  As I explain in the book, one of the great ironies is just how mainstream "out of doors" activities like public protest have become.  In any event, I argue that even in a digital age in which many speakers and audiences have migrated to the virtual realm, traditional modes of public expression remain critical to our expressive culture.      

Q:  In the book, you argue that our "expressive topography" is eroding.  What do you mean by this?

A:  The expressive topography is a concept I use to describe the physical space that could potentially be used for First Amendment activity. The book examines public expressive activity through the conceptual and organizational lens of "place."  Anthropologists, geographers, philosophers, and other scholars have demonstrated how important place is to human connection and interaction, as well as to the state's control over certain behaviors.  Relying on work in several disciplines, I argue that place is critical to the exercise of expressive liberties.  In the book, I describe and analyze a system of places - an "expressive topography" -  in which a variety of speech activities and contests occur.  For example, beggars and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall.  Speech and spatiality intersect and interact in unique ways in each of the spatial types identified in the book.  For a variety of reasons, including the privatization of public space, legal restrictions on public speech and assembly, and increasingly repressive forms of public policing, our expressive topography has been steadily eroding.  This has affected nearly every corner of the expressive topography, from public parks to college and university campuses. 

Q: How did you first become interested in the intersection of speech and place?

A: Of the many limits placed on public expression, it was the increased zoning of speech that really sparked my interest in this project.  The "speech cage" erected at the 2004 Democratic National Convention in Boston was the most high-profile example.  A district court judge described it as an "internment camp" and "an affront to the First Amendment."  I found it difficult to believe that this repressive tactic was being used to regulate public expression in the United States.  It was even more remarkable that the courts, including the one just quoted, held that the speech cage satisfied First Amendment standards. 

The situation in Boston was, in part, a reaction to the events of September 11, 2001.  Since then, particularly during critical and often tense public democratic moments, public places have become heavily militarized and fortified.  Some officials have begun to treat even entirely peaceful acts of protest and dissent as potential terrorist threats.  This creeping equation of activism and terrorism has substantially affected public expression in this country, as in others.  A lot has been made of the apathy of the American people when it comes to public protest and contention.  And much has been said about the perceived lack of efficacy of this form of expressive activity.  But who wants to demonstrate in a pen or cage?  Who will risk arrest for simply being in a public place?

Q: You mentioned the "militarization" of public places at major political events like presidential nominating conventions. Have you seen any evidence of this phenomenon?

A:  I watched the 2008 Denver and St. Paul conventions with great interest. Militarization was evident at both conventions.  As in the past, there were restrictive expressive zones, displacements of parades and demonstrations, mass arrests, and an overwhelming police presence - thousands of boots on the ground, many in full riot gear. Both party conventions were treated as "special security events," which under federal law places the Secret Service in charge (working in conjunction with local and neighboring police departments brought in to fortify the convention centers).

There were, however, a few notable differences between the 2008 conventions and those in 2004, in terms of public policing.  The one that really caught my attention was the number of credentialed press members, there to cover the convention and the protests, swept up in the security dragnet.  Generally, police have been careful not to interfere with press functions at public events.  Many of the charges against press members were eventually dropped.  But their arrests affected the ability of the public to get information about what was happening on the ground during the conventions.

The second interesting difference was that the Republican National Convention Committee  purchased a $10,000,000 liability insurance policy in advance of their convention.  The policy covered all police officers working at the convention.  Some have questioned whether this sort of arrangement might embolden police to engage in more aggressive policing.  There is another related concern.  In the past, large damage awards against cities have served a limited public accountability function.  Taxpayers may be more likely to object to aggressive public policing when it results in large damage awards paid out of public funds.  That check no longer exists where the risk is shifted to a private party through an insurance policy.  In effect, the private insurance arrangement allows the government to disclaim responsibility for repressive official security plans.   

Q:  In your book you claim that public colleges and universities - once incubators for First Amendment activities - have become more restrictive and less vibrant First Amendment venues. What, in your view, has caused this deterioration?

A: Colleges and universities were once hotbeds of political activism and incubators for social movements.  Justice Douglas once warned [in Healy v. James, 408 U.S. 169 (1972)], that universities might become "useless appendages" to a society that has historically celebrated and embraced a spirit of rebellion.  Today campuses remain relatively undefined places in terms of the First Amendment.  Other than offering somewhat vague platitudes to the effect that campuses are "marketplaces of ideas," the Supreme Court has never tried to explicitly define these places in constitutional terms.  In large part, this approach provides flexibility to campus administrators to pursue their primary educational goals and missions.

Relying on that flexibility, however, administrators have woodenly imported the panoply of bureaucratic measures that apply to expression outside campus gates.  Thus, for example, outside the campus gates officials apply what social scientists call a "public order management system" for public expression that includes, among other things, permit requirements, speaker fees, zoning, and pre-event insurance and indemnity requirements.  Most of these restrictions, as well as others, now apply to speech and other expressive activities inside campus gates as well.  Together they form what I call in the book the "campus order management system."  This system generally includes most of the bureaucratic requirements applicable in public places.  Thus, campuses generally have detailed public speech and public forum policies, restricted "free speech areas," registration requirements, and other regulations.  But regulation of campus speech sometimes goes even beyond what you typically find outside campus gates.  Some policies include explicit prior restraints and outright content discrimination.  These and other restrictions are suppressing certain types of campus expression. 

Q: What should be done to reverse this trend in your opinion?

A: There are steps courts, administrators, and students could take.  Courts have tried to apply the "public forum doctrine" on campuses.  In essence, they have tried to categorize campus spaces as "traditional" or "designated" or "limited" public forums (a practice rightfully decried, for a host of reasons, when applied to ordinary public places).  The Supreme Court has never required that the "public forum doctrine" be applied on campuses.  In my view, given the history of campuses as special First Amendment venues courts should be engaging in a much more sensitive spatial inquiry with respect to places of higher learning.  The question is not whether the First Amendment applies with equal force inside as outside campus gates; it is whether the First Amendment ought to apply with even greater force there.  At the very least, if they are determined to apply the public forum doctrine courts should recognize that the "campus commons" serve the same First Amendment functions as our public parks and streets.  There ought to be substantial breathing space for expressive activities there. 

On the university side, my basic recommendation is that administrations revisit and substantially prune the campus order management systems they have recently devised.  Universities should also reconsider their relationship to the communities in which they reside, and specifically revisit policies that unduly restrict members of the community from using campus spaces for speech activity.  Finally, as for students, they bear the special burden of preserving campus places such that they do not become the "useless appendages" Justice Douglas warned they might.  They must continue to insist on the provision of ample and adequate space for public expression in places of higher learning.