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Publié par
Date de parution
15 octobre 2015
Nombre de lectures
0
EAN13
9781438458458
Langue
English
Publié par
Date de parution
15 octobre 2015
Nombre de lectures
0
EAN13
9781438458458
Langue
English
Public Spaces, Marketplaces, and the Constitution
SUNY series in American Constitutionalism
Robert J. Spitzer, editor
Public Spaces, Marketplaces, and the Constitution
Shopping Malls and the First Amendment
Anthony Maniscalco
Published by State University of New York Press, Albany
© 2015 State University of New York
All rights reserved
Printed in the United States of America
No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.
For information, contact State University of New York Press, Albany, NY
www.sunypress.edu
Production, Ryan Morris
Marketing, Fran Keneston
Library of Congress Cataloging-in-Publication Data
Maniscalco, Anthony, 1966 – author.
Public spaces, marketplaces, and the constitution : shopping malls and the first amendment / Anthony Maniscalco.
pages cm. — (SUNY series in American constitutionalism)
Includes bibliographical references and index.
ISBN 978-1-4384-5843-4 (hardcover : alk. paper)
ISBN 978-1-4384-5845-8 (e-book)
1. Freedom of expression—United States. 2. Shopping centers—Law and legislation—United States. I. Title.
KF4770.M36 2015
342.7308’53—dc23
2014045874
10 9 8 7 6 5 4 3 2 1
To Ed Rogowsky, who loved to plan public space.
To Marshall Berman, who loved to practice it …
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
ACKNOWLEDGMENTS
These brief acknowledgements will leave out many people who have shared ideas with me along the way. Really thoughtful individuals were willing to engage and lend me ideas based on their stellar work about public space and participation. Don Mitchell gave me insight into the implications of this subject matter. Frances Fox Piven and Jack Jacobs offered helpful suggestions at various stages. Setha Low helped me sort through the publishing process. Tom Halper deserves special thanks for keeping me accountable throughout my legal analysis, and for devoting substantial amounts of time to reviewing and commenting on the style and on the contests described in this book.
Equally special thanks are due to Dr. Michael Rinella at SUNY Press. Michael provided useful feedback and great editorial suggestions, even before he took this book on as part of his final acquisitions work. Not far from the offices of SUNY Press, Stephen Downs demonstrated tremendous courage in sticking to his principled defense of free expression, not to mention lots of generosity and sincerity in sharing his thoughts with me ten years after his ordeal in an Albany shopping mall. I cannot say enough about the inspiration offered by the late Marshall Berman. My only regret is that Marshall is not here to read the published product. I am grateful that his influence continues to be felt by those who knew and loved him.
Finally, to hundreds of students with whom I have worked over many years, my thanks. Their example—their unstoppable efforts to practice public space and sustain independent public spheres—has in many ways animated this project and led to its completion … if completion is the appropriate word in view of the challenges traced in this book.
Introduction
While discourses on public space have almost always teemed with allusions to cities, the state has been harder to find in many accounts of how publics and spaces are joined. In a similar way, traditional narratives about the public sphere have sometimes failed to shed light on the state’s ability to configure access to space. Scholarship on shared space and state regulation has surely grown since the start of the 21st century, following the World Trade Center attacks and post-9/11 security apparatuses in New York and other major cities. Occupy Wall Street and Tea Party protests appear to have raised the watermark in the second decade of the new century. Yet uncertainty about the durability of the former and speedy conversion of the latter into an electoral movement require us to consider alternative examples of public space and its political uses, absent popular demonstrations like the ones that piqued our curiosities a few short years ago. Going forward, moreover, we would do well to embark on new discourses about the state’s power to control rights of access to the contemporary public sphere.
We should likewise expand our inquiries into state interventions and the privatization of public space. Recent conflicts in the heart of Istanbul, Turkey, precipitated in part by the planned demolition of that city’s oldest public park, Taksim Square—slated for replacement by a shopping mall—are likely to stir more inquiry into these processes, internationally. 1 At the same time, urban activists in the United States remain dedicated to using and preserving traditional public spaces against so many private conventions that delimit the exercise of their personal freedoms. Local battles over community gardens come to mind, as do business improvement districts and public-private conservancies that restructure the rules of use in streets and parks, respectively.
Given these phenomena, discourses about space ought to look at property and how it may be reimagined publicly with the aid of the state. Commercialization of public space remains an important theme, one that will resurface throughout this study. But perhaps it is time to rethink privately owned marketplaces as centers of publicity and civic capacity, multifunctional spaces embodied commercially and politically by people who use them for diverse ends. The idea may seem farfetched these days. But in fact there is a long history of popular engagement inside marketplaces. It is a history of emplacement for expressive practices, in which the spaces where people bought and sold things were the same ones they used to openly participate in conceiving their public sphere. 2
As Barker has shown, for example, Athenian publics of the fifth century BC designed the first democratic space celebrated in the Western tradition. It was a marketplace: the agora. The agora was an amalgam of commercial and political association, where discourse on current affairs and ideas took place alongside people’s trading activities. After it replaced the Acropolis as the center of public life—that is, after civic participation replaced passive witness of religious rites as the quintessence of citizenship—Athens “attained to full self-consciousness” and became a model of “highly developed political life,” as critics of democracy were forced to concede. 3 And one of the defining characteristics of the Athenian agora was its support for publicness among citizens who met, marketed, and debated there:
In the market-place … the city had its brain centres; and when men met in the assembly for deliberation, they met to settle matters which had been discussed before, and on which an opinion had already been formed … The city was not only a unit of government: it was also a club. It was not only politically self-governed: it had also (what made its self-government possible) a large freedom of social discussion … the open life of the market square.… In the frequent contact of such a life, men of all classes met and talked with one another; and the democratic ideals of equality and of freedom of speech found their natural root. Knots of talkers and circles for discussion formed themselves from day to day; and in public talk and open discussion, the business of the community would be a natural staple. Men would come to know one another intimately, and in the common discussion of the market-square … would learn one another’s worth. Such a society is the background and basis of the theory of the Greek philosophers. 4
One of those philosophers, Aristotle, recognized a need for strong ecological overlaps between the polis and its public spaces. In this sense, it is important that his discussion of the agora appears in Politics , his treatise on statecraft and political organization. Aristotle understood that common space was political at its core. He shared this view with the Athenians of his generation, along with a distrust of city planners such as Hippodamus, who developed a prototype for authoritarian political space meant to channel spectatorship among its users. Hippodamus seemed to want to control urban space, really. His vision of the Greek city therefore offered only modest accommodations for publicity (in the sense of public usage or “publicness”) or diversity inside it. 5
Yet Aristotle also challenged multifunctional arrangements in the marketplace. That challenge seemed quite integral to his broader political philosophy, in fact. Suspicious of pure democracy, Aristotle proposed that politics and commerce be separated on the Athenian agora. He thought polity would be better served by splitting the “traders’” agora from the “freemen’s’” agora, separating the market-place of goods from the marketplace of ideas. 6 Aristotle champi