INTRODUCTION :: It seems to be a common assumption that physical places like parks, sidewalks, and public squares, and “cyber-places” like the Web, constitute separate locations of communication. In reality, however, the intersection and collision of these two spaces is imminent. In some respects it has already occurred. Entire cities and counties are erecting wireless “clouds” that will bring the Internet to vast public spaces. Technologies of surveillance continue to proliferate. What one does and says in public places is increasingly subject to surveillance by means of a combination of hand-held devices and official surveillance tools like closed circuit television cameras (CCTV). There may soon be a continuous, running record of most public activities. People in public places are also carrying and wearing ever more sophisticated computing devices. Pervasive personal computing is mobilizing communication and affecting public interaction in ways we are only now beginning to appreciate. Among other things, it is blurring the line between private and public communication. Anyone who has ever been stuck in traffic behind a car in which a pornographic DVD is being displayed has glimpsed this phenomenon. Like it or not, the era of “drive-by pornography” is now upon us.
Technology is altering the fundamental character of public places. Increasingly, when we are in public, we occupy “networked” places. Some scholars have already noted the significant Fourth Amendment privacy concerns raised by the networking of public places. These concerns will be exacerbated as the technologies of communication and surveillance become more widespread and more sophisticated. The networking of public places will also give rise to a host of less- commented upon free speech issues. Place is a critical component of expressive activity. The transformation of material public places into networked ones will fundamentally change what it means to speak, petition, associate, and exercise press rights in public.
This Article provides a comprehensive assessment of the First Amendment issues related to the networking of public places. The changes brought about by the networking of public places will affect a number of First Amendment doctrines and principles. This Article considers six basic categories or clusters of speech issues raised by the networking of public places: property or public forum, public captivity, protection (from harmful speech), public protest, privacy (in terms of both identity and thought), and press.
Having cities and other governmental entities, rather than private interests, provide public wireless Internet connections raises questions about ownership, control, access, and neutrality. Are these public wireless networks just another public utility? Are they speech forums? Will governments, or their private partners, be able to filter public Web access? Is there a constitutional right to public connectivity and access in the same sense that there is a right to speak and assemble on the streets? Will governments, or their state-actor private partners, have unfettered access to information about public network users?
Public “captivity” will also become a larger concern. As the drive-by pornography example shows, the networking of public places will expose audiences to speech in public that has to this point been either entirely private or effectively segregated in material places. Sexually explicit content and ubiquitous advertising will be more prevalent in networked places. Citizens will carry this content with them into the networked public square. We will all potentially be more “captive” in networked public places-on buses, in subway cars, in parks and government buildings- to speech that we have generally been able to avoid in material public places. To what extent can or should the law protect listeners and viewers from this expression?
As the captivity problem indicates, exposure to harmful speech in networked public places will become increasingly difficult to regulate. The networking of public places will alter the form and character of public expression. It will, for example, permit speakers to use devices to virtually approach listeners and viewers. Network features will affect concepts such as imminence and risk, which have been critical to the application of First Amendment doctrines like fighting words, threats, and incitement to unlawful action. As public places become networked, we must consider what form of protection will be available to viewers and listeners when they encounter such things as mobile sexually explicit speech, virtual harassment, cyber-spamming, and other forms of harmful speech in public places.
The networking of public places will also substantially affect public protests and demonstrations. Networking features will facilitate assembly by providing platforms for social capital and the means for spontaneous action. But they will also facilitate official and unofficial surveillance, as public and private cameras are increasingly used to record events in the public square. On balance, will the networking of public places render self-governing activities like protesting and petitioning too costly for most citizens?
The devices we carry, outfitted with Global Positioning System (GPS) technologies, will facilitate surveillance and tracking. The networked environment will compel us to constantly authenticate ourselves. Vast public areas will be under constant surveillance. In light of these eventualities, will the ability to shield speaker or associative identity be fundamentally compromised? Looking even further into the future, will biometric technologies, including those that can literally read faces, expose even private thoughts? Will digital environments compel us to speak in public against our will?
Finally, in a networked environment, should every citizen with the capacity to record and publish be deemed a member of the press? Should the truthful “reporting” of public events by “citizen-journalists” be shielded by the First Amendment from tort and other forms of civil liability, even when that reporting impinges on significant public privacy concerns?
Serious First Amendment concerns will be raised as the networking of public places proceeds. First Amendment doctrines and principles will be challenged by this transformation, just as they have been challenged by technological revolutions in the past. But the stakes of spatial networking are actually much higher than these doctrinal concerns indicate. Ultimately, we are facing a fundamental makeover of public places. Although they serve many purposes, public places are a collective democratic and expressive concern. They facilitate identity and equality claims. They allow for a wide variety of democratic participation. They lend transparency to both expressive claims and regulation of public expression. While we are considering First Amendment concerns, we ought also to ask how networked public places will affect core speech values, like self-government and civic interaction, in the traditional public marketplace of ideas. What will all of this networking do to public places?
March 2015, Vol. 67, No. 2
Albert W. Alschuler, Limiting Political Contributions After McCutcheon, Citizens United, and SpeechNow
Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness
Jeffrey A. Lefstin, Inventive Application: A History
Onnig H. Dombalagian, Principles for Publicness
Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption
Alan Devlin, Antitrust Limits on Targeted Patent Aggregation