The First Amendment, the Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate Gregory P
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Working Paper Series Villanova University Charles Widger School of Law Year 2004 The First Amendment, The Public-Private Distinction, and Nongovernmental Suppression of Wartime Political Debate Gregory P. Magarian Villanova University School of Law, [email protected] This paper is posted at Villanova University Charles Widger School of Law Digital Repository. http://digitalcommons.law.villanova.edu/wps/art6 THE FIRST AMENDMENT, THE PUBLIC -PRIVA TE DISTINCTION, AND NONGOVERNMENTAL SUPPRESSION OF WARTIME POLITICAL DEBATE 1 BY GREGORY P. MAGARIAN DRAFT 5-12-04 TABLE OF CONTENTS INTRODUCTION ......................................................................................... 1 I. CONFRONTING NONGOVERNMENTAL CENSORSHIP OF POLITICAL DEBATE IN WARTIME .................. 5 A. The Value and Vulnerability of Wartime Political Debate ........................................................................... 5 1. The Historical Vulnerability of Wartime Political Debate to Nongovernmental Suppression ....................................................................... 5 2. The Public Rights Theory of Expressive Freedom and the Necessity of Robust Political Debate for Democratic Self -Government........................ 11 B. Nongovernmental Censorship of Political Speech During the “War on Terrorism” ............................................... 18 1. Misinformation and Suppression of Information by News Media ............................................ 19 2. Exclusions of Political Speakers from Privately Owned Public Spaces. ..................................... 24 3. Reprisals Against Political Expression ........................... 28 II. FROM PRIVATE SPHERE TO PERSONAL INTEGRITY ............... 31 A. The Public -Private Distinction in Action................................... 33 1. The State Action Doctrine ............................................... 33 2. Normative Defenses ......................................................... 36 B. Three Stages of Criticizing the Public -Private Distinction .................................................................................. 42 1. Denial: The Ontolo gical Critique .................................. 42 2. Anger: Ideological Critiques .......................................... 46 3. Acceptance: Rehabilitating the Public -Private Distinction ....................................................................... 52 C. Developing a Useful Role for the Public -Private Distinction in Constitutional Adjudication................................ 54 III. APPLYING THE PU BLIC RIGHTS FIRST AMENDMENT TO NONGOVERNAMENTAL CENSORSHIP OF 1 Associate Professor, Villanova University School of Law. Thanks to Michelle Anderson, Mike Carroll, Steve Chanenson, Marisa Cianciarulo, Anuj Desai, and wor kshop participants at Boston College Law School and Pace University School of Law for helpful co mments on earlier drafts. 2 WARTIME POLITICAL DEBATE .................................................... 60 A. The Role of Personal Integrity in Applying the Public Rights First Amendment ................................................. 60 B. Enjoining Nongovernmental Suppression of Wartime Political Debate ......................................................................... 66 1. Exclusions of Political Speakers from Privately Owned Public Spaces ...................................................... 66 2. Reprisals Against Political Expression ........................... 72 3. Misinformation and Suppression of Information by News Media ............................................ 75 C. Why the Court? .......................................................................... 81 CONCLUSION ......................................................................................... 87 INTRODUCTION On a Monday evening in March 2003, as the nation wrestled with the painful questions whether and on what terms to go to war against Iraq, a 60 year -old man named Stephen Downs walked into a t -shirt shop in the busy Crossgates shopping mall near Albany, New York. He bought a custom made shirt with “Peace on Earth” written across the front and “Give Peace a Chance” across the back. He paid for the shirt, put it on, and walked to the mall’s food court to eat dinner. Two people n oticed the sh irt and complimented Downs, but no one else seemed to pay much attention. Shortly after he sat down to eat, a sec urity guard approached, told Downs that he was causing a di sturbance, and ordered him to remove the shirt or leave the mall. Downs politely r efused. Mall security then called local police, who repeated the command that Downs remove the shirt or leave the mall. When Downs again refused, the police arrested him for trespass. 2 Except for the restrained language of Downs’ shirt, his ant iwar pr ote st replicated Paul Cohen’s famous 1968 stroll through the Los Angeles County Courthouse with the legend “Fuck the Draft” embl azoned on his jacket. Both men sought to express opposition to a divisive, high -stakes military action. Both made their protests by wearing their messages in prominent hubs of community life. Cohen’s arrest for disturbing the peace led to perhaps the Supreme Court’s most eloquent affirm ation of the value and sanctity of political protest under the First Amen dment. 3 No competent at torney, however, would have cited the First Amendment in defense of Downs’ nearly identical action. A lthough both Cohen and Downs made their protests in public gathering places, Downs chose a site owned by a private entity. From the standpoint of constit utional doctrine, the aw esome force of the First Amendment di ssipates before any assault from a nongovernmental censor. The terrorist attacks of September 11, 2001 and ensuing events have compelled the federal government to evaluate n umerous complex policy questions. Not in at least the past three decades has the United States had to make such momentous decisions about whether and to what extent to use military force in pursuit of the national interest. These policy qua ndaries have spurred rich and intens e political debate among the American people. Our discourse, however, has not gone uni mpeded. The gover nment itself has at times discouraged public debate, most 2 See Nicole F. Barr, T-shirt Redux, Charge To Be Dropped: Food Court Frenzy Pr otests Arrests, THE ENTERPRISE (Albany County, N.Y.), March 6, 2003, p. 1, 18. When the Downs arrest generated nationwide publicity, mall officials quietly dropped the charges, even as the mall became a magnet for antiwar protesters and civil libertarians. See id. ; Melissa Hale Spencer, Supporters’ Eat -in: Downs Tastes Victory, THE ENTERPRISE, March 13, 2003, p. 1. The mall, however, continued to maintain that its private status allowed it to bar expressive activity. See Molly Belmont, Free Speech! Bill Would Lift Mall Gag, THE ENTERPRISE, April 3, 2003, p . 1, 21. 3 See Cohen v. California, 403 U.S. 15 (1971). 2 notoriously through Attorney General Ashcroft’s declaration that criticism of the Bush Admini strations antite rrorist policies “gives ammunition to Ame rica’s enemies, and pause to America’s friends” 4 and Presidential Press Secretary Ari Fleischer’s citing negative reactions to a statement critical of the U.S. military as “reminders to all Americans that they need to watch what they say, watch what they do.” 5 Such government pressure against political debate should trouble us, but it can hardly surprise us. Our expectation that the government will try to suppress speech is manifest in our deeply ing rained understanding of the First Amendment’s gua rantee of expressive freedom. On that understanding, the Fra mers of the Constitution designed the First Amen dment to shield individuals’ decisions whether to speak and what to say against governmental censo rship and punishment. The surprising fe ature of impediments to expression during the present n ational crisis is that suppression of important political debate has r esulted far less often from official action than from nongover nmental b ehavior. Stephen Do wns’ arrest in the Crossgates Mall was just one manifestation of a wave of censorship of p olitical debate that has included not only denials to protesters of access to property but also suppression of information by the news m edia and institutional retalia tion against dissenters. During the Iraq war, for example, the major media refused to show wrenc hing images of Iraqi casualties and American prisoners of war. 6 N ational stock exchanges barred some business reporters from their trading floor as punishment for their networks’ war r eporting. 7 These and numerous similar nongo vernmental actions have dramatically impeded public discourse since the Septe mber 11 attacks. Political debate in times of war and national emergency lies at the core of First Amendment concern, because such crises make debate both especially vulnerable and especially valuable. Wartime debate is esp ecially vulnerable to suppression because of war’s most positive by - product – its unification of the nation behind a common purpose. With or without actual government censorship, broad support for government po licy encourages the silencing of wartime dissidents. Wartime debate is especially valuable because of war’s most awful consequences. Wars kill people, topple governments, and scar surv ivors and the ecosy stems they 4 Neil A. Lewis, A Nation Challenged: The Senate Hearing; Ashcroft Defends Antite rror Plan; Says Criticism May Aid U.S. Foes, N. Y. T IMES , Dec. 7, 2001, p. A1. To leave no doubt