Space, Place and Speech: The Expressive Topography

Abstract

Place is currently under-theorized in First Amendment jurisprudence. When it has been independently considered at all, place has been conceptualized as nothing more than an inert backdrop for expressive scenes. For more than sixty years, place has been treated as property, a public resource, like air or water, that the government controls. There are many and sustained critiques of the constitutional doctrine of place. But there has been no effort to fundamentally and systematically reconsider place itself. Building upon a forthcoming TEXAS LAW REVIEW article, entitled Speech and Spatial Tactics, this Article fashions a new perspective on place. Drawing upon the work of scholars of place in human geography, anthropology, sociology, and philosophy, the Article sets forth a conception of place that it calls Expressive Place. In contrast to current treatments of place as secondary, inert, given, and binary, Expressive Place is primary to expression, dynamic, constructed, and variable. The Article utilizes the concept of Expressive Place to re-plot the expressive topography, the sum of public space potentially available for expressive activity. The revised topography consists of at least six spatial types that substantially affect First Amendment rights - Embodied, Contested, Inscribed, Tactical, Cyber, and Non-places. The Article offers several prescriptive suggestions in light of this ambitious re-conceptualization of place. A new method by which courts can read place is proposed, as are several specific alterations of the manner in which courts review spatial regulations under the time, place, and manner doctrine.