A SOCIOSPATIAL ANALYSIS OF STUDENT GROUPS ON UNIVERSITY CAMPUSES: TOWARD CAPACIOUS CAMPUS PLURALISM ROOTED IN
MEANINGFUL ASSOCIATION
John-Paul Petrash
A dissertation submitted to the faculty at the University of North Carolina at Chapel Hill in partial fulfillment of the requirements for the degree of Doctor of Philosophy
in the Department of Political Science.
Chapel Hill 2019
ABSTRACT
JOHN-PAUL PETRASH: A Sociospatial Analysis of Student Groups on University Campuses: Toward Capacious Campus Pluralism Rooted in Meaningful Association
(Under the direction of Jeff Spinner-Halev)
ACKNOWLEDGEMENTS
Many people have offered guidance, support, and encouragement during my sojourn in graduate school. First, I would like to thank the members of my dissertation committee. Jeff Spinner-Halev has been a patient and responsive advisor. I appreciate his willingness to read and comment on numerous chapter drafts. Michael Lienesch offered careful, thorough, line-by-line comments at multiple stages of the dissertation process and took the time to meet with me on several occasions. Susan Bickford provided insightful feedback during the prospectus and dissertation stages. Luke Bretherton showed uncommon kindness in sitting down with me to talk through ideas during the embryonic stage of this dissertation. His teaching and scholarship also resurrected my interest in political theory during a pivotal period in graduate school. John Inazu offered helpful comments during the prospectus stage. His work on the freedom of assembly stirred my initial interest in the subject. I am also grateful to Tabatha Abu El-Haj and Ashutosh Bhagwat for their valuable advice.
excellent care has meant a great deal and has buoyed me over the past six years. Alexi
Robichaux has been a close and supportive friend since our early years in Irving. He somehow managed to stay in touch despite the intense pressure associated with running a blossoming startup. Robert Phillips, Isaiah Ramirez, Carlos Gutierrez, Steven Apell, Justin Lim, Johnmark Coy, Daniel Hage, Andreas Robichaux, Peter Tsai, Austin Hu, John Han, Emika Aroh, and Noah Simmons have been faithful friends who have ministered to me many times in many ways. Serge Severenchuk and Devin Christensen have been excellent conversation partners and supportive colleagues. Clyde Ray went out of his way to mentor me during my early years in graduate school. I would also like to thank Amy Moulthrop, Pearl Young, Kyle Bingham, Hunter Corb, Bob and Barbara Chermeley, Nathan Chermeley, John and Miki Liu, Peter and Christine Wang, Jacob and Sharon Young, Steven Hsu, Tony Espinosa, Joel Oladele, Paul Onica, and John and Arla Campbell. Their support has been much appreciated.
Many people offered insightful comments as I was drafting my dissertation. Mitchell Kennard read numerous drafts, gave valuable suggestions, and helped me through the travails of revision. Noah Simmons showed an active interest in my dissertation, read plenty of drafts, and spent many caffeinated hours talking through ideas with me. He also cheered me on during the final and most difficult stretch of graduate school. I would also like to thank Devin Christensen, Daniel Hage, Tim Hutchison, Kyle Bingham, my brother-in-law Colin, my sister Hope, my brother, Lukas, my mother and father, Kay and Jack, and my wife, Priscilla, for taking the time to read and comment on my work.
for taking so many trips to North Carolina and caring for John-Elliott, Luke, and Noah (and Priscilla and myself) in innumerable ways. Dad, thank you for your faith and prayer, your loving and encouraging words, and all your help. Hope, thank you for your empathy, love, and support even in the midst of your own suffering and loss. Thank you for spending countless hours listening to me lament my deficiencies as an academic writer and for being one of my biggest fans. Lukas, thank you for being such an amazing big brother and close friend. Thank you for all your visits and, of course, your gracious care for your nephews. (John-Elliott should be ready to be your business partner in a few years.) Gracie, thank you for your love and support. I am looking forward to spending more time with sweet little Maya.
I have also been blessed with outstanding in-laws and extended family members. I would like to thank James and Pat Fite for their gracious support, as well as Phillip and Lisa Fite, Colin McCarthy, and Carlos Gonzalez. I would also like to thank the Fite and Caudill families for their prayer and encouragement. I owe a special debt of gratitude to Geoff and Laurie Crissman, who have opened their hearts to us during these six years and cared for us in such a warm, tender, and touching way. They refreshed me many times with their hospitality, generosity, and love for John-Elliott, Luke, and Noah. I will always treasure our times together.
My wife and I also owe a special debt of gratitude to Allison and Meghan Thompson, who have provided wonderful care for our boys and have become such an important part of our family. I know I could not have written my dissertation without their sustained and gracious help.
closest friend. Thank you for going through all the trials and tribulations of graduate school with me without once doubting the path ordained for us. You sustained and supplied me countless times with your simple faith and cheerful countenance. Thank you for spending so much time listening to me talk about my dissertation and bearing with all my lamentations and self-doubts. And, thank you for encouraging me to “just get my words out.” I think they finally came out.
TABLE OF CONTENTS
1. WHY MATERIAL SPACE MATTERS FOR MEANINGFUL ASSOCIATION:
MOTIVATING A SOCIOSPATIAL PERSPECTIVE ... 1
Introduction ... 1
Narrowing the Scope to Material Social Spaces ... 6
America’s Shifting Topography and the Erosion of Public Spaces for Associations ... 11
Spatial Regulations and Their Adverse Effects on Associations ... 16
Tactical Uses of Spatial Regulations: Controlling Associations through Spatial Maneuvers ... 26
Conclusion ... 32
2. STUDENT GROUPS ON CAMPUS: A CASE FOR MEANINGFUL ASSOCIATION AND CAPACIOUS PLURALISM ... 35
Introduction ... 35
Two Components of Meaningful Association for Student Groups ... 46
How RSO Programs Disrupt Meaningful Association... 52
How RSO Programs Rely Upon a Problematic Premise and Diminish Campus Diversity ... 66
Remediation: Envisaging Capacious Campus Pluralism ... 72
Conclusion ... 77
3. A CRITIQUE OF HOW COURTS ASSESS UNIVERSITY INTRUSIONS ON MEANINGFUL ASSOCIATION ... 81
Introduction ... 81
Background: Public Forum Doctrine and Its Critics ... 83
Recent Uses of Public Forum Doctrine to Assess University Intrusions on Student Groups ... 87
Four Problems with Recent Public Forum Analysis ... 95
4. LEARNING TO LIVE TOGETHER AS NEIGHBORS WITHIN A PLURALISTIC
CAMPUS SETTING ... 114
Introduction ... 114
Ruminations on the Basis and Practice of Campus Neighborliness ... 116
A Reoriented Standard for Evaluating Student Groups ... 132
Conclusion ... 135
5. CONCLUDING REMARKS ... 137
Concluding Prescriptions and Acknowledgments ... 139
Final Considerations ... 146
APPENDIX: AN ANALYSIS OF HARVARD'S RECENT SANCTIONS POLICY ... 154
CHAPTER ONE
WHY MATERIAL SPACE MATTERS FOR MEANINGFUL ASSOCIATION: MOTIVATING A SOCIOSPATIAL PERSPECTIVE
Introduction
Voluntary associations have long been an important object of discourse among political theorists and legal scholars. They have been typified and differentiated in myriad ways.1 Their importance—personally, socially, and politically—has been traced out and haggled over in the context of competing political visions.2 The shape, weight, and limits of their associational freedom have also been thoroughly probed, often in the context of U.S. constitutional law.3 But
1In the context of First Amendment law, legal scholars commonly distinguish between intimate and expressive associations, as well as commercial and non-commercial associations. For a lucid discussion and typology of voluntary associations, see Mark E. Warren, Democracy and Association (Princeton: Princeton University Press, 2001). For discussions of different types of associations, see, e.g., Amy Gutmann, ed., Freedom of Association
(Princeton: Princeton University Press, 1998). On the hybrid, many-sided character of associations and the risks of general classifications of associations, see Nancy L. Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America (Princeton: Princeton University Press, 1998).
2Among others, George Kateb, Nancy Rosenblum, and Jacob Levy stress that freedom of association is integral to personal freedom. See George Kateb, “The Value of Association,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998); Rosenblum, Membership and Morals: The Personal Uses of
Pluralism in America; Jacob Levy, Rationalism, Pluralism, and Freedom (Oxford: Oxford University Press, 2015). Robert Vischer argues that associations play a vital role in the pursuit of identity, expression, purpose, and meaning. See Robert K. Vischer, “The Good, the Bad and the Ugly: Rethinking the Value of Associations,” Notre Dame Law Review 79, no. 3 (2004). John Inazu, Tabatha Abu El-Haj, and Ashutosh Bhagwat emphasize the crucial role that voluntary associations can play in democratic self-governance. See John D. Inazu, Liberty’s Refuge: The Forgotten
Freedom of Assembly (New Haven: Yale University Press, 2012); John D. Inazu, Confident Pluralism: Surviving and Thriving through Deep Difference (Chicago: The University of Chicago Press, 2016); Tabatha Abu El-Haj, “The Neglected Right of Assembly,” UCLA Law Review 56, no. 3 (2009); Tabatha Abu El-Haj, “Changing the People: Legal Regulation and American Democracy,” NYU Law Review 86, no. 1 (2011); Tabatha Abu El-Haj, “Friends, Associates, and Associations: Theoretically and Empirically Grounding the Freedom of Association,”
Arizona Law Review 56, no. 1 (2014); Ashutosh Bhagwat, “Associations and Forums: Situating CLS v. Martinez,”
Hastings Constitutional Law Quarterly 38, no. 3 (2011); Ashutosh Bhagwat, “The Democratic First Amendment,”
Northwestern University Law Review 110, no. 5 (2016).
political theorists and legal scholars alike have generally neglected the spatial dimensions of voluntary association and have treated space as an assumed, inert background only tangentially related to associational concerns, if at all.4
This oversight begs remedy given that sociality and spatiality are tightly interwoven. The social practices of voluntary associations must unfold somewhere, in some kind of social space, and how this space is constructed and regulated can have serious repercussions for voluntary associations. In practice, members of viable voluntary associations engage in a range of activities integral to and expressive of their shared lives, values, and purposes: they gather, assemble, organize, debate, worship, solicit, recruit, protest, and petition, among other things. Some of these activities are limited to members, while others are open to or directed toward
non-members. Nevertheless, all of these activities play out somewhere—in some spatial medium and context—and therefore have a necessary spatial component.
Some voluntary associations confine their activities to property that they own. But many associations do not, either out of necessity or choice. Consequently, they seek to extend their activities into social spaces that they cannot claim as their own. These spaces might include coffee shops, plazas, sidewalks, shopping malls, university campuses, and community centers. Many associations have compelling reasons for gathering and acting in these spaces. They may do so to engage with members of the public, recruit new members, boost their public presence, exercise their First Amendment rights, and act upon their collective purposes. They may also do
Right to Discriminate? How the Case of Boys Scouts of America v. James Dale Warped the Law of Free Association
(New Haven: Yale University Press, 2009).
so simply because they have nowhere else to meet. Among other things, social spaces like university campuses can enable associational activities and enhance their efficacy.
Salient problems come to light once we adopt a sociospatial vantage point and map associations and their activities onto a dynamic, regulated, and contested topography.5 In America at least, some spaces most amenable to public associational activities have been erased due to factors like privatization and commercialization. This physical erosion of public space means that groups have fewer places where they can freely gather and effectively engage with the public. But the erosion of public space is only part of the problem. The regulation of space presents additional problems. Even ostensibly public places in America are increasingly
managed through complex spatial regulations ranging from access policies to free-speech zones. Among other things, these regulations can enervate expressive group activities like assembly and protest through geographic confinement; displace certain groups simply because they are the wrong type; and pressure groups to compromise their internal values, purposes, and membership criteria. Moreover, state and private actors sometimes use spatial regulations as tactics to unfairly target certain groups.
Consider a few current trends in America:
• In many states, groups are prohibited from engaging in expressive activities like
assembly within privately owned public places such as shopping malls and plazas.6 These prohibitions limit groups from effectively reaching the public.
5Throughout this dissertation, I use the term “sociospatial” to emphasize the relationship between the associational activities of voluntary associations and the spaces in which these activities occur. While a more precise term might be “associational-spatial,” I use the term “sociospatial” because I find it less awkward.
6“Assembly on Private Property | First Amendment Center,” accessed July 5, 2017,
• Local governments increasingly rely on zoning schemes like security zones to zone out expressive (group) activities in public areas during social and political events. For instance, Cleveland’s 3.3 square mile secure zone—drawn up in anticipation of the 2016 Republican National Convention—threatened to stymie the peaceful activities of dozens of civic and political groups.7
• Both public and private universities continue to construct campus “free speech zones,” which confine and dampen expressive group activities, in spite of the negative publicity that these zones often elicit.8 The University of Cincinnati, for instance, confined expressive activities on its campus to a single Free Speech Area that comprised roughly .01% of its campus.
• Dozens of universities have recently rolled out “all-comers” policies, which require recognized student groups to open membership and leadership to all students regardless of status or belief. Non-recognized groups are denied access to campus spaces and resources, among other things. At universities like Vanderbilt University, the enactment of all-comers policies has pushed numerous student groups off campus and subsequently marginalized them from campus life.
7Citizens for Trump v. City of Cleveland, No. 16-CV-1465 (N.D. Ohio June 21, 2016).
Spatial matters like these implicate what I term “meaningful association” for a diverse array of voluntary associations in the United States.9 This is because meaningful association presupposes at least two things. First, it presupposes amenable environmental conditions such as accessible spaces and venues where associations can gather and engage with the public. Second, it presupposes significant freedom for associations to control their respective purposes, values, and membership/leadership requirements.10 The first facet speaks to the external conditions for associations; the second facet speaks to the internal integrity, coherence, and composition of associations. Absent either of these facets, meaningful association is enfeebled. The topographic changes and spatial regulations I problematize in this chapter implicate both of these facets.
The main purpose of this chapter is to explore the dynamic interweaving of things associational and spatial in order to motivate a sociospatial perspective. In the first section I clarify that my focus is on material social spaces, and I discuss two common ways to represent and differentiate them. In the second section I point to an unsettling problem in America: the physical erosion of public spaces open to voluntary associations and their activities. In the third section I explain how spatial regulations like zoning schemes and access policies can impede meaningful association. In the fourth and final section I express concerns about tactical uses of spatial regulations aimed at disciplining certain groups. I paint in broad strokes throughout this chapter in order to sketch out basic concerns and lay the theoretical groundwork for future
9The discussion of meaningful association in this chapter is introductory. In subsequent chapters I present a fuller conception of meaningful association that is specific to student groups at places of higher education.
10On why voluntary associations need internal control over their membership and leadership, see Nancy L. Rosenblum, “Compelled Association: Public Standing, Self-Respect, and the Dynamics of Exclusion,” in Freedom of Association, ed. Amy Gutmann (Princeton: Princeton University Press, 1998), 75–108; Rosenblum, Membership and Morals: The Personal Uses of Pluralism in America; Steffen N. Johnson, “Expressive Association and
Organizational Autonomy,” Minnesota Law Review 85, no. 6 (2001); Inazu, Liberty’s Refuge: The Forgotten
chapters, which will explore tensions between student groups and universities on university campuses in the U.S.
Narrowing the Scope to Material Social Spaces
In this section I clarify that my treatment of space is limited mainly to material, concrete social spaces that can function as important sites for associations who choose to move beyond their private property.11 This treatment narrows the focus to places like shopping malls, university campuses, and coffee shops that provide a “natural habitat” for groups looking for somewhere to gather or engage with the world beyond themselves.12 These spaces typically give place to the bustle and hum of social interaction among members of the public and serve as informal gathering places. They also make a wide range of associational activities both possible and effective. Although non-material spaces such as online forums can also function as outlets for associations and their activities, I focus on material social spaces in the interest of a more bounded analytical frame. Myriad groups still gather and act in material spaces despite the availability of non-material ones.
11Scholars from numerous disciplines have offered differing conceptions of “space” and place” (as well as how space and place are related) from divergent perspectives. See, e.g., John Agnew, Place and Politics: The Geographical Mediation of State and Society (Boston: Allen & Unwin, 1987); Edward W. Soja, Postmodern Geographies: The Reassertion of Space in Critical Social Theory (London: Verso, 1989); Ray Oldenburg, The Great Good Place: Cafés, Coffee Shops, Community Centers, Beauty Parlors, General Stores, Bars, Hangouts, and How They Get You through the Day, 1st ed. (New York: Paragon House, 1989); Henri Lefebvre, The Production of Space
(Oxford: Blackwell, 1991); Edward Casey, The Fate of Place (Berkeley: University of California Press, 1998). Following scholars such as Margaret Kohn, Don Mitchell, John Parkinson, and Timothy Zick, I focus on concrete space rather than abstract or linear space. I sometimes use “space” and “place” interchangeably, although in chapters four and five I distinguish the two concepts in light of Thomas Gieryn’s observation that, “Place is space filled up with people, practices, objects, and representations.” Thomas F. Gieryn, “A Space for Place in Sociology,” Annual Review of Sociology 26, no. 1 (2000): 465. See also John Parkinson, “How Is Space Public? Implications for Spatial Policy and Democracy,” Environment and Planning C: Government and Policy 31, no. 4 (2013): 684 (“‘Space’ denotes the physical setting and ‘place’ denotes the fuller social construct.”). It should be noted that even scholars such as Zick who stress the importance of place (as distinct from space) sometimes use the terms “place” and “space” interchangeably.
While I limit my focus to material social spaces, deciding how to represent, or describe, these spaces is not simple. In one sense these spaces are not imagined or theoretical; they are concretely located somewhere in space and time, just like the social activities they invite and enable. In another sense, they are part of a built environment constructed by diverse
architectural, historical, social, and political forces. The constructed nature of the built environment inspires differing conceptions of material social spaces.
Scholars have offered diverse conceptions of material social spaces as well as multiple ways to differentiate these spaces. Ray Oldenburg has famously described informal gathering places such as coffee shops and post offices as “third places” between work and home.13 Michael Walzer has distinguished between “open-minded” spaces, such as university campuses, and “single-minded” spaces, such as residential areas.14 Certain social spaces have also been
described as “expressive,” “loose,” “safe,” “democratic,” “insurgent,” and “institutional.”15 Such descriptors not only elucidate the physical characteristics of a particular social space but also the
13Ray Oldenburg, The Great Good Place.
14Michael Walzer distinguishes between two kinds of public space: “The first is single-minded space, designed by planners or entrepreneurs who have only one thing in mind, and used by similarly single-minded citizens. Entering space of this sort we are characteristically in a hurry. The second is open-minded space, designed for a variety of uses, including unforeseen and unforeseeable uses, and used by citizens who do different things and are prepared to tolerate, even take an interest in, things they don't do.” Michael Walzer, “Pleasures and Costs of Urbanity,” Dissent Magazine, Fall 1986, 470.
15On expressive space, see especially Timothy Zick, “Speech and Spatial Tactics,” Texas Law Review 84, no. 3 (2006); Timothy Zick, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge: Cambridge University Press, 2009). Zick emphasizes the expressiveness of place (as part of the expressive topography) and treats place as the foundation of expressive rights. On loose space, see Karen Franck and Quentin Stevens, eds., Loose Space (New York, NY: Routledge). Loose Place explores how people appropriate urban public space for their own purposes. For a history of “safe space,” see Malcolm Harris, “What’s a ‘Safe Space’? A Look at the Phrase’s 50-Year History,” Fusion, accessed July 5, 2017, http://fusion.kinja.com/what-s-a-safe-space-a-look-at-the-phrases-50-year-hi-1793852786. Among other things, “safe space” may refer to a physical space or to a particular community. On democratic space, see, e.g., Marcel Henaff, Public Space and Democracy (Minneapolis: University of Minnesota Press, 2001); John Parkinson, Democracy and Public Space: The Physical Sites of
activities that “make” this space. Spatial representations can be descriptive, prescriptive, or both. For instance, we might identify a public plaza as a democratic space because it is a site for democratic activity and/or because we think it ought to function as such a site.
Consider two common ways to typify material social spaces. The first way draws out the public or private dimensions of social spaces and distinguishes them on a public/private
gradient.16 This turns out to be a complex endeavor. As concepts, “public” and “private” both carry multiple senses, including ownership, accessibility, and function. A place such as a shopping mall or coffee shop might be privately owned but publicly accessible. Another place might be publicly owned and funded but not easily accessible to the public; some public
university campuses come to mind in this regard. In contrast, some privately owned universities might construct open and accessible grounds and facilities—and thus invite public sphere activities—notwithstanding their private status. They may therefore be robustly public in terms of accessibility and function despite being private in terms of ownership. Military bases are publicly owned but obviously closed to the public. Moreover, some of the most vital and vibrant places for public activities and interactions might be privately owned places like local pubs or coffee shops. Margaret Kohn rightly challenges our intuitive understandings of public and private space, noting that, “Most of the places that we share with strangers are neither public nor
private but exist in a gray area between the two.”17 Many material social spaces are complexly public and private, and we do well to consider the different ways in which this is the case.
A second way to typify material social spaces draws on specifically legal mappings of space. Legal representations of social spaces “owned” by government bodies (as trustees of the public) have been guided by public forum doctrine at least since the 1939 Supreme Court case,
Hague v. CIO. The history of public forum doctrine is complex, and legal critiques of the doctrine are abundant.18 But the spatial designations integral to the doctrine in its current form are simple in that they only include a few categories. Courts designate a wide array of
government property as “forums” and then sort this property into the following forum categories: traditional public forums, designated public forums, limited public forums, and nonpublic
forums.19 Traditional public forums include sidewalks and public parks. Designated public forums include public property opened specifically for public expression; they may include municipal theaters or meeting rooms at public universities and libraries. Limited public forums include spaces open only to certain types of speech or speakers; they may include public university campuses or public meeting rooms. Nonpublic forums include airport terminals and
17Margaret Kohn, Brave New Neighborhoods: The Privatization of Public Space (New York: Routledge, 2004), 9. Timothy Zick also warns against the categorical application of a public-private distinction to places like shopping centers. See Zick, Speech Out of Doors, 163.
18For accessible histories of public forum doctrine, see Robert C. Post, “Between Governance and Management: The History and Theory of the Public Forum,” UCLA Law Review 34, no. 5 (1987); Calvin Massey, “Public Fora, Neutral Governments, and the Prism of Property,” Hastings Law Journal 50, no. 2 (1999); Margaret Kohn, Brave New Neighborhoods: The Privatization of Public Space (New York: Routledge, 2004); John D. Inazu, “The First Amendment’s Public Forum,” William and Mary Law Review 56, no. 4 (2015). For criticisms of public forum doctrine, see Richard B. Saphire, “Reconsidering the Public Forum Doctrine,” University of Cincinnati Law Review
59, no. 3 (1991); Michael Paulsen, “A Funny Thing Happened on the Way to the Limited Public Forum:
Unconstitutional Conditions on Equal Access for Religious Speakers and Groups,” UC Davis Law Review 29, no. 3 (1996); Zick, “Speech and Spatial Tactics”; Lyrissa Lidsky, “Public Forum 2.0,” Boston University Law Review 91, no. 6 (2011); Inazu, Confident Pluralism.
the internal mailing systems of public schools. Some government-owned spaces such as military bases are not treated as forums at all.
Importantly, legally-drawn spatial representations are both unsettled and contested; this is unsurprising given their far-reaching ramifications. When a government actor intrudes upon public liberties (e.g., speech, assembly) on public property, the type of forum in question determines the standard of scrutiny the judiciary uses to assess the intrusion. Traditional and designated public forums merit more stringent scrutiny; limited and nonpublic forums merit weaker scrutiny.20 Whether a particular government intrusion upon speech or assembly is constitutional thus hinges upon where this intrusion occurs. In this light, how the judiciary chooses to designate the space (i.e., location, site, medium) in question matters a great deal.
I have discussed two common ways to represent material social spaces for three reasons. First, on a practical level, how these spaces are represented can have significant repercussions for associations seeking to act within these spaces. For instance, the decision to designate a public space as a limited public forum, as opposed to a traditional public forum, can do much to
dampen group activities like assembly and even displace certain groups altogether. Second, on a conceptual level, how we choose to represent material social spaces will color how we assess associational issues within these spaces. Some spatial representations reflect reductive, one-dimensional understandings of social spaces and blind us to associational issues altogether. Legal representations of public spaces simply as “speech forums,” for instance, can trap us in a speech-centered mindset, hinder us from seeing spaces as multi-dimensional, and stymie clear-eyed
engagement with associational issues within these spaces that are distinct from speech issues.21 Third, in terms of analytical scope, it is important to clarify that my interest extends beyond publicly owned spaces; it includes privately owned spaces as well.
America’s Shifting Topography and the Erosion of Public Spaces for Associations
In the previous section I clarified that my focus is on material social spaces and discussed two common ways by which these spaces can be represented and differentiated. In this section I turn to an ongoing problem in America: the topographic erosion of physical public spaces where associations can freely gather and effectively engage with the public. This erosion presents particular challenges for associations geared toward public-regarding activities like assembly and solicitation.
Numerous scholars have traced and lamented the disappearance of public space in America. James Kunstler has narrated the geographic decline of America’s man-made
landscape.22 Michael Sorkin has tracked the privatization of “public” spaces such as shopping malls and sports complexes and the corresponding decline of public squares and sidewalks as places for vital public interaction.23 More pointedly, Timothy Zick and Margaret Kohn have probed the significance of the decline of public spaces for the exercise of public liberties such as free speech and protest. Zick argues that the physical erosion of public space “has severely diminished our expressive topography — the public space in which First Amendment liberties
21I develop this concern in chapter three. On some important but neglected distinctions between association and speech, see Bhagwat, “Associations and Forums”; Inazu, Confident Pluralism, 34–35.
22James Kunstler, Geography of Nowhere: The Rise and Decline of America’s Man-Made Landscape (New York: Simon and Schuster, 1994).
may be exercised.”24 With America’s shifting expressive topography in view, Zick points to an unsettling trend: public spaces where public liberties merit robust constitutional protection are shrinking, whereas those spaces where such liberties merit limited or no protection are
expanding. The topographic erosion of public places means that there are fewer sites where free speech and other public liberties can be exercised “out of doors.”25 Margaret Kohn has shown how the privatization of space, including the rapid rise of shopping malls and gated communities, has dampened free speech and other public liberties by physically swallowing up public spaces for such liberties.26
Part of the story of the decline of public space involves the rise of commercial space.27 Privately owned commercial spaces like shopping malls and business districts now constitute a significant part of the American topography. America’s 48,000-plus shopping centers span upwards of six billion square feet of retail space.28 These spaces increasingly function as “new” town squares in the sense that they attract members of the public; and yet, though they are open to the public, they are not usually open to public liberties. Indeed, owners of these public spaces have little incentive to encourage the exercise of public liberties, and they often prohibit and prosecute such exercise with the law firmly on their side.29
24Zick, Speech Out of Doors, 5.
25Zick, Speech Out of Doors.
26Kohn, Brave New Neighborhoods: The Privatization of Public Space, 80. Kohn and Zick discuss the erosion of public space in much more detail than I do. Their focus is on what this erosion means for public liberties (namely free speech), whereas my focus is on what this erosion means for voluntary associations.
27For a discussion of how private property owners use geographic strategies to move public life inside, see Don Mitchell, “The Liberalization of Free Speech: Or, How Protest in Public Space Is Silenced,” in Spaces of
Contention: Spatialities and Social Movements, ed. Walter Nicholls, Byron Miller, and Nicholas Blomley (Surrey, BC: Ashgate, 2013).
28Zick, Speech Out of Doors, 147.
This finding might strike us as unsurprising: shopping malls and business districts are commercial spaces geared toward consumption and profit, not toward a vibrant public sphere open to public liberties. But the topographic spread of privately owned public spaces presents challenges for groups seeking to engage with the public. In a basic sense, groups might struggle to find sufficient places in which to gather and engage with members of the public. Groups committed to public engagement might have trouble reaching a public audience due to the lack of public spaces amenable to such engagement. Political and civic associations invested in public advocacy and recruitment might face similar challenges.
These challenges are not hypothetical or imagined. Consider an example that illustrates a more widespread issue. When the Michigan Citizens Lobby (MCL) sought to gather enough signatures to qualify an initiative petition, members of the MCL went to nearby Woodland Mall in Kentwood, MI, because they knew they could find members of the public there.30 But
Woodland Mall maintained a written trespass policy prohibiting any activity in the shopping center “not directly related to the enhancement of commercial retail sales…including soliciting, petitioning, securing signatures, speech making, distributing handbills, and similar activity.”31 In spite of warnings from mall management, members of the MCL set up tables at Woodland Mall and began to solicit signatures for their petition. Woodland filed a complaint against the MCL in court, and the trial judge issued an injunction prohibiting the MCL from engaging in expressive activity anywhere on Woodland Mall property. Upon review by Michigan’s supreme court, the court ruled against the Michigan Citizens Lobby. The court noted the MCL’s “factual assertion that the development of private shopping centers has adversely affected the ability of individuals to exercise the rights of free speech, assembly, and petition, because these shopping centers have
30Woodland v. Citizens Lobby, 423 Mich.
replaced the traditional public retail districts.”32 But the court dismissed this assertion due to insufficient evidence and the purported availability of alternative forums—such as radio and television—for expressive activity.
Over the past few decades many state courts have tried similar cases involving expressive activities on privately owned property and handed down similar rulings in favor of the property owners.33 In most states, the owners of privately owned public spaces such as malls and plazas can ban expressive liberties on their property outright. Groups have no right to assemble, solicit, recruit, or advocate in these spaces.
It is important not to downplay the challenges that the commercialization of space
presents for some groups. For many groups, gaining meaningful access to privately owned public spaces—and thereby reaching the public—is vital to their purposes and long-term viability. A public advocacy group such as the MCL that cannot effectively reach the public may find its purposes thwarted and its viability threatened. The fact that groups like the MCL are willing to spend significant time and resources battling for accessible public spaces should alert us to just how much these spaces matter. Moreover, past and present legal battles over the accessibility of public spaces do not tell the full story of the harm some groups suffer as a result of eroding public space. This is because groups do not have an explicit, constitutionally-protected “right of access” to space for their group activities, although the First Amendment and public forum doctrine can indirectly protect groups by enabling them to express their viewpoints in certain public forums.
32Woodland v. Citizens Lobby, 423 Mich. at n. 47.
The commercialization of space is not the only problem, however. A related problem is that even publicly owned spaces designated as public forums are literally disappearing.34 Sometimes local governments simply sell off public spaces such as city plazas and thus
eviscerate quintessential public forums. In Salt Lake City, for instance, the city government sold an entire city block of Main Street to the LDS Church.35 Historically, that public space on Main Street had served as a prominent site for protest and demonstration—so much so that it was known as “Soapbox Corner.” But after the sale, the LDS Church banned assembly,
demonstration, and other public activities on their property. Several organizations, including the First Unitarian Church of Salt Lake City and the Utah National Organization of Women,
challenged the sale, arguing that the plaza area was still public property open to public liberties such as speech. In the end, their legal challenges failed, and the net result was that the public lost what had long been a vital public space.
The abridgment of public spaces reminds us that space is dynamic. It also alerts us to the fact that material public spaces where groups can freely gather and effectively engage with the public might be more limited than we realize. America’s changing landscape bodes ill especially for groups like the Michigan Citizens Lobby whose modus operandi hinges on public
engagement through the effective exercise of public liberties. These groups have fewer places to go if they want to reach the public, and those places that remain are not always amenable to their activities. Faced with these challenges, some groups might find alternative and creative ways to
34On how and why public forums are disappearing, see Jamin B. Raskin and Clark L. LeBlanc, “Disfavored Speech About Favored Rights: Hill v. Colorado, the Vanishing Public Forum and the Need for an Objective Speech
Discrimination Test,” American University Law Review 51, no. 2 (2001); Kevin Francis O’Neill, “Privatizing Public Forums to Eliminate Dissent,” First Amendment Law Review 5 (2007).
reach the public. But this does not erase their interest in gaining meaningful access to key public places.
Spatial Regulations and Their Adverse Effects on Associations
In the previous section I stressed that the physical erosion of public spaces in America presents challenges for certain groups. The emphasis there was on physical changes to America’s topography. In this section I focus on the regulatory dimension of this erosion.36 The problem for groups is not just that accessible places are disappearing in the face of commercialization and privatization. It is also that even ostensibly public places are governed by spatial regulations that restrict what types of activities unfold within them, where these activities occur,andwho has access to these places. These spatial regulations sometimes disrupt meaningful association in serious ways.37
I focus on two kinds of spatial regulations. The first kind—zoning schemes—impedes associations by geographically confining or zoning out their expressive activities and thus
dampening their impact. Zoning schemes present challenges mostly for groups seeking to engage the public through expressive activities like assembly and speech. The second kind—access policies—disrupts meaningful association in a more direct manner. Access policies explicitly bar certain types of groups from gaining access to a place or implicitly pressure groups into choosing between the external or internal conditions of meaningful association. Access policies harm
36Of course, the physical and regulatory facets of America’s topography are interwoven. For instance, the physical erosion of public space is problematic in part because expressive liberties currently merit weak legal protection within privately owned spaces.
those groups who are simply the wrong type or who want to maintain control over their internal integrity. Zoning schemes and access policies often work in tandem at places like public
universities in order to regulate both the external (i.e., public) and internal (i.e., private) practices of groups.
Zoning Schemes: Zoning Out or Confining Expressive (Group) Activities
Guided by what David Allen calls the “Planning Framework,” governments in the U.S. increasingly construct artificial zones within or around public places (e.g., parks) in order to contain citizens and their activities. Public officials have ample latitude not only in drawing up the boundaries of these zones but also in regulating what goes on within them.38 Zoning partitions physical space in order to limit expressive activities to their “appropriate” zone; it settles the question of where these activities are permissible. As a form of sociospatial control, zoning is both pervasive and powerful. Artificial secure zones—often complete with “hard,” “soft,” and “designated demonstration” zones—regularly govern the spatial environment around public events like political conventions, in part by zoning out expressive activities.39 Free speech zones confine expressive activities at places like public universities to designated spaces that represent only a small fraction of the overall geographic area.
Regulatory zoning affects groups in multiple ways. In general, zoning constrains and confines those groups who rely on expressive activities to engage the public. This is because zoning shrinks the geographic space where these activities are permissible. Groups have less space for their activities. But shrinking space is only part of the problem. Groups may not be able
38David S. Allen, “Spatial Frameworks and the Management of Dissent: From Parks to Free Speech Zones,” Communication Law and Policy 16, no. 4 (2011): 414.
39Scholarly critiques of secure zones and demonstration zones are common. See, e.g., see Mary M. Cheh,
to effectively express their message, reach their intended audience, or engage with the public. This is because spatial zones separate them from the public or close off public areas where expressive activities would be most effective. In some cases, zoning stipulations can render collective activities like parading and assembly impossible and thus thwart the purposes of groups who rely on these activities.
A recent example illustrates how zoning can hurt certain groups. As host of the 2016 Republican National Convention, the city of Cleveland created a 3.3 square mile “Event Zone” in anticipation of the convention. The expansive Event Zone spanned areas well beyond the convention center site; it included neighborhoods, public parks, a college campus, and grocery stores. The city issued permit regulations governing speech, parade, and assembly activities within the Event Zone. The zone included at least seven public parks where groups could
typically meet, rally, and assemble via the city’s public site system. As part of its zoning scheme, however, the city shut down the permit system for all but two of the parks during the convention; permits for the remaining two parks were limited to art installations.
The ACLU sued the city of Cleveland on behalf of Citizens for Trump, Organize Ohio, and Northeast Ohio Coalition for the Homeless, alleging that Cleveland’s permit regulations unduly restricted members of the public from exercising their expressive rights during the convention—in part by limiting First Amendment activities to only a few defined locations.40 Pointing to the harms imposed by Cleveland’s regulations, the ACLU argued that Cleveland’s regulations effectively shut down “any planned assembly for any group of any size.”41 The
40See “Demand for Jury Trial,” Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 14, 2016).
ACLU took issue with both the excessive size of Cleveland’s Event Zone and the stringent regulations placed on expressive activities within this zone.
Cleveland’s Event Zone permit stipulations presented severe challenges for a number of organizations, including Organize Ohio and Citizens for Trump. As a nonprofit community organizing catalyst aimed at progressive change, Organize Ohio planned a large parade and rally during the convention. It submitted a parade permit application months before the convention, but the city of Cleveland never acted on the application. A few months before the convention, the city issued a new set of parade stipulations. These stipulations forced Organize Ohio to choose either a parade or a rally, but not both. The city designated one parade route, allocated only fifty minutes per parade, and set a narrow time window for the parades. In response, Organize Ohio complained:
The City’s designated parade route will not allow us to convey our message… We also have a desire to march through a central part of Cleveland—with people, traffic, commercial areas, and houses—to most effectively spread our message. These are all things the City’s official parade route lacks.42
Cleveland’s comprehensive zoning scheme thus flustered Organize Ohio’s ability to convey its message—and further its community organizing goals—not only through administrative delay but through geographic confinement. Organize Ohio’s intended parade would be confined to a designated, ineffective route. As a result, its message would be muted, the symbolism of its parade negated, and its intended audience held out of reach.
Citizens for Trump faced similar challenges. The organization planned a parade and rally during the RNC convention, as well as a series of speeches at a public park in Cleveland’s Event Zone. Despite submitting the necessary application months before the convention, Cleveland
never granted or denied the permit application. When Cleveland rolled out its revised permit application, applicants could choose only one type of activity: parade, speech, or park use. In response, Citizens for Trump alleged that Cleveland’s delayed response to its application, and its stringent restrictions on parades and park use, threatened to reduce the effectiveness of its
activities and inflicted significant costs. Among other things, Citizens for Trump averred the following:
The location of the City’s designated parade route location is not conducive to what we had originally planned, as the route does not afford a good view of the convention site (and vice versa) and thus does not allow our message to reach those who most need to hear it—the very delegates who had at one point threatened to disregard our votes in support of Mr. Trump. Also, the timing of the parade slots do not match when the delegates will necessarily be at the convention. The parades end before the delegates arrive each day.43
Similar to Organize Ohio, Citizens for Trump faced limits not only on its expressive activities but also on where these activities (e.g., parades) could be conducted. Given that where activities like parades occur determines their effectiveness, both Organize Ohio and Citizens for Trump were right to worry that Cleveland’s spatial restrictions threatened to dampen the impact of their planned activities.
The ACLU’s lawsuit against Cleveland received a favorable hearing. A federal judge found the size of Cleveland’s “secure zone” to be “unduly large” and therefore unconstitutional; the judge also took issue with the fact that Cleveland had not created sufficient alternatives to its designated parade route.44 After the ensuing mediation between the city of Cleveland and the ACLU, Cleveland agreed to reduce the size of the secure zone, alter the parade route to increase visibility, and extend the time available to apply for parade permits. Not all city administrators
43“Declaration of Timothy Selaty” at 5, Citizens for Trump v. City of Cleveland, No. 1:16-cv-01465-JG (N.D. Ohio Eastern Div. Jun. 14, 2016).
have been as willing to revise their zoning schemes, however, and cities continue to rely on elaborate zoning schemes—including “no protest” and “designated demonstration” zones—in order to contain expressive activities during public events.
Over the past few decades, universities have also employed zoning schemes to regulate expressive activities on their campuses. Numerous universities have constructed artificial “free speech zones” for expressive activities. Free speech zones regulate expressive activities—and, by extension, those groups who typically engage in them—not by banning these activities outright but by confining them to designated, limited areas on campus. These zones often constitute only a small fraction of the campus area; in some cases, they are roughly the size of a classroom. One implication of free speech zones is that the vast campus areas beyond them are not open to expressive activities. They are “no free speech” zones.45 Free speech zones are thus symptomatic of the contraction of campus space open to expressive activities.
As with secure zones used by cities, university-imposed zoning schemes can harm those groups who rely on collective speech, assembly, and protest activities to reach members of the public. A 2012 legal case involving Young Americans for Liberty (YAL) at the University of Cincinnati (UC) illustrates this harm.46 Despite its status as a public institution, the University of Cincinnati designated only one space on campus as its Free Speech Area. The area measured roughly 4,537 square feet (comprising about .01% of the campus). UC mandated that all
demonstrations, pickets, and rallies were to be held in this area and were to be registered ten days in advance. Students who failed to comply with this policy would be charged with trespassing. Furthermore, the university asserted that it had the right to regulate all expressive activity on
45Zick remarks that “whenever a free speech zone is created, the unaffected space becomes a de facto ‘speech-free’ zone.” See Zick, “Speech and Spatial Tactics,” 605.
campus because all campus areas, including its designated Free Speech Area, were limited public forums rather than traditional or designated public forums.
When members of Young Americans for Liberty began to walk around campus to gather signatures for a ballot initiative, UC officials warned the students that they could only gather signatures within the designated Free Speech Area. They would be arrested if their signature-gathering activity went beyond the allotted space. After complying with this directive, the students managed to interact with only six of their peers and gather one signature in one day due to limited foot traffic around the Free Speech Area. YAL subsequently filed suit against the University of Cincinnati on the grounds that their freedom of speech and assembly had been violated. The district judge found UC’s policies problematic on multiple counts and filed a permanent injunction enjoining the policies. UC’s zoning scheme—in concert with its permit requirements—chilled expressive activities on campus, severely confined the geographic scope of these activities, and functioned as an unlawful prior restraint.47
In spite of this ruling against university-imposed free speech zones, dozens of universities continue to use zoning schemes.48 Zick notes a consistent pattern when it comes to university speech zones: university administrators “first turn to tactical zoning only to later reverse their policies in the face of litigation and public pressure.”49 For groups hoping to reach the broader campus community through expressive activities, speech zones do more than confine these activities to small, artificial spaces. They also reduce the impact of these activities and thus fluster the purposes of groups who rely on these activities to carry out their purposes. The YAL
47University of Cincinnati Chapter of Young Americans for Liberty v. Williams.
48FIRE, “‘Free Speech Zones,’ Then and Now,” FIRE (blog), December 27, 2016, https://www.thefire.org/free-speech-zones-then-and-now/.
incident illustrates this effect. In addition, speech zones chill expressive activities on campus. This is because students and non-students alike are less apt to engage in these activities on campus given the risks of doing so (e.g., being arrested).
The examples I have discussed are not anomalies. As a geographic means of partitioning and regulating public places, zoning schemes are extensive in both type and reach. In fact, Zick remarks that spatial restrictions like zoning have become the norm in America and have been institutionalized. Some type of zone often governs the space in or around airports, sports arenas, churches and other places of worship, and abortion clinics.50 Spatial zoning may be
well-intended; it may be aimed at protecting legitimate interests like public order and safety. But it presents challenges for groups geared toward public engagement. The geographic constraint effected through zoning schemes determines where these groups may act, which in turn affects the reach and impact of their (expressive) collective action.
Access Policies: Excluding or Marginalizing Groups Based on Type or Internal Characteristics
Zoning regulations harm groups primarily by confining their expressive activities and thereby dampening the reach and impact of these activities. But, on their face, zoning regulations do not discriminate between or against groups based on their type or internal characteristics. Access policies, however, operate according to a different logic. They exclude or marginalize some groups from a particular place based on their associational type or internal characteristics (e.g., viewpoints, membership criteria). As exclusionary mechanisms, access policies more squarely implicate the question of which groups have access to a social space and on what conditions.
Some access policies explicitly bar certain types of groups from places such as public libraries, community centers, and university campuses.51 In the campus context, some
universities prohibit certain types of student groups from using their campuses. For instance, Harvard University prohibits single-gender “final clubs” from using its campus even though these associations are composed mainly of Harvard students.52 Such explicit, type-based barriers to campus access may hinder banned groups from enjoying meaningful association and may even threaten their existence. However, these access policies warrant only brief mention here because they are quite straightforward, and the exclusion they effectuate is readily apparent.
In contrast, conditional access policies regulate campus access in a more complex manner, and the exclusion they effectuate is less transparent.53 These policies are often administered through registered (i.e., recognized) student organization (RSO) programs.54 In general, universities grant substantive campus access only to recognized student groups whose internal characteristics align with university norms. Campus access thus hinges upon university recognition, which is contingent upon compliance with university policies (e.g.,
nondiscrimination requirements). Consequently, non-recognized student groups whose values,
51See, e.g., Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (U.S. 1993). The case involved a church that was prevented from using public school property after-hours to screen a film because New York law stipulated that the school premises were not be used for religious purposes. See also Concerned Women for America Education & Legal Defense, Foundation, Inc. v. Lafayette County, 883 F.2d 32 (5th Cir. 1989); Good News Club v. Milford Cent. Sch., 533 U.S. 98 (U.S. 2001); Bronx Household of Faith v. Bd. of Educ., 750 F.3d 184 (2d Cir. 2014).
52“Organizations defined as non-Harvard or as unrecognized single-gender social organizations are not permitted to conduct any activity at Harvard even though their activities involve Harvard undergraduates.” See “Policy
Regarding Undergraduate Student Organizations,” Harvard College Handbook for Students, accessed February 1, 2019, https://handbook.fas.harvard.edu/book/policy-regarding-undergraduate-organizations.
53The critique of registered student organization policies in this subsection is intentionally brief. It is a preview of a more extensive critique offered in chapter two.
purposes, viewpoints, or membership criteria are deemed incongruent with university
requirements are often marginalized from campus and campus life. They typically struggle to recruit new members because they have been shut out of club fairs and cut off from campus recruiting tools. They also incur significant expenses because they must rent rooms on campus and pay other fees if they want to maintain some degree of campus presence.55
In recent years, the conditions attached to recognition have become more intrusive as some universities—including Vanderbilt University and the twenty-three campuses within the California State University system—have attached an “all-comers” requirement to recognition. This requirement stipulates that recognized student groups must accept all students for
membership and leadership positions regardless of status or belief. Student groups who refuse to comply with the all-comers requirement face de-recognition. As a result, they lose affordable access to campus facilities, campus grounds, club fairs, communicative venues, and student email lists, and they often find themselves on the margins of campus life.
A few examples should help to illustrate the pattern of marginalization triggered by the denial of university recognition. In its earlier history, Georgetown University refused to
recognize two student groups, Gay People of Georgetown and Gay Rights Coalition, because the groups’ purposes purportedly collided with Georgetown’s Catholic values.56 The groups were subsequently denied equal campus access and marginalized from campus life. In an ongoing dispute, Fordham University has repeatedly refused to recognize a local chapter of Students for Justice in Palestine (SJP) because of the group’s allegedly “narrow” political viewpoint. SJP’s
55Michael Paulson, “Colleges and Evangelicals Collide on Bias Policy,” The New York Times, June 9, 2014, sec. U.S., https://www.nytimes.com/2014/06/10/us/colleges-and-evangelicals-collide-on-bias-policy.html; Religion News Service, “InterVarsity, College Christian Group, ‘De-Recognized’ At California State University Campuses,”
Huffington Post, September 9, 2014, sec. Religion, http://www.huffingtonpost.com/2014/09/09/intervarsity-sanctioned-california-state-university_n_5791906.html.
campus presence has been inhibited as a result.57 At Vanderbilt University, at least ten de-recognized student groups have had to move their activities off-campus since Vanderbilt rolled out its all-comers policy.58 Many of these groups had been part of the Vanderbilt community for years but now face exclusion from the campus community. At universities within the California State University system, long-established student groups like InterVarsity Fellowship have faced similar challenges after failing to comply with the CSU system’s all-comers policy.
In their current form, RSO policies can present student groups with an unfair choice between two essential facets of meaningful campus association: access to appropriate campus spaces for their respective group activities or sufficient control over their respective values, purposes, and membership criteria. Neither choice is satisfactory; both choices enfeeble meaningful association. Given that the next chapter includes a much fuller critique of RSO policies and their negative effects on student groups, this brief critique should suffice for now. The basic point is that RSO policies affect both facets of meaningful association and impose significant burdens on a diverse array of student groups.
Tactical Uses of Spatial Regulations: Controlling Associations through Spatial Maneuvers
In the previous two sections I observed that material social spaces are dynamic and regulated in order to stress that physical and regulatory changes to these spaces can adversely affect voluntary associations in significant, though variable, ways. The takeaway thus far has
57See “Fordham University: Prospective Students for Justice in Palestine Chapter Rejected Over Political Beliefs,” FIRE, https://www.thefire.org/cases/fordham-university-prospective-students-for-justice-in-palestine-chapter-rejected-over-political-beliefs/. See also Jesse Singal, “Fordham University Shows Why Liberals Should Fight for Campus Free Speech,” Daily Intelligencer, http://nymag.com/daily/intelligencer/2017/04/fordham-shows-why-liberals-should-fight-for-free-speech.html.
58Annalisa Musarra, “Vanderbilt Faith Groups Follow Catholics off Campus,” OnFaith, April 10, 2012,
https://www.onfaith.co/onfaith/2012/04/10/vanderbilt-faith-groups-follow-catholics-off-campus/21543; “Essay on Impact of Vanderbilt Policies on Catholic Students,” Inside Higher Ed, accessed July 5, 2017,
been that, from an associational perspective, physical and regulatory changes to social spaces matter a great deal. In this section I point to another reason we should take space seriously: spatial regulations can be employed tactically in order to single out and control certain groups. In the hands of the state, for instance, spatial regulations can function as tools for suppressing dissident groups and restricting the activities of groups that rival state supremacy. We should therefore pay attention to how and why spatial regulations are being employed in particular instances rather than simply taking these regulations at face value.
Scholars from a variety of disciplines have shown how public and private actors can manipulate spatial regulations to control basic freedoms. Tying the geography of law to power and social life, Nicholas Blomley describes statist regulations of space as “spatial politics” seen, for example, in legal restrictions on the mobility of pickets.59 Setha Low and Denise Lawrence-Zuniga explain how spatial tactics represent “the use of space as a strategy and/or technique of power and social control.”60 Joseph Herrold and David Allen both show how the state relies on methods of spatial control (e.g., speech zones) in order to manage dissenting speech and expressive activities.61 Don Mitchell stresses that the “liberal” approach to silencing speech is increasingly exercised through geography rather than censorship. He writes: “The trick for free speech regulation, therefore, becomes one of spatial regulation. Regulation of location, or place, becomes the surrogate for the regulation of content.”62 Speech regulation can be carried out through spatial tactics aimed at eliminating the space for speech.
59Nicholas Blomley, Law, Space, and the Geographies of Power (New York: Guilford Press, 1994), xii.
60Denise Lawrence-Zúñiga and Setha M. Low, “Locating Culture,” in The Anthropology of Space and Place: Locating Culture, ed. Denise Lawrence-Zúñiga and Setha M. Low (Malden, MA: Blackwell Publishers, 2003), 30.
61Joseph D. Herrold, “Capturing the Dialogue: Free Speech Zones and the Caging of First Amendment Rights,” Drake Law Review 54 (2005); Allen, “Spatial Frameworks and the Management of Dissent.”
Tactical uses of spatial regulations extend beyond controlling free speech, protest, and other expressive activities to controlling the groups who often engage in these activities. Consider a story recounted by Don Mitchell involving picketing union workers at Denver International Airport:
Faced with a contract they were not happy with in late September, 2000, about 85 workers on the automated baggage handling system at Denver International Airport (DIA) voted to go on strike against Phelps Program Management, the subcontractor that operated the baggage machinery on the United Concourse… Meanwhile, United got the City of Denver to agree to restrict picketing to a rarely-used, empty parking lot some three miles from the terminal and threatened any non-striking worker with disciplinary action if they failed to show up to work as scheduled. The reason this location was chosen was bluntly stated by the airport’s spokesman: ‘We issued a permit for the union to picket in the Mount Elbert parking lot. United’s workers won’t have to cross the picket line when they get to work.’ In other words, because picketing might have been effective at a more central location, it was banished, an action that threw the unions at the airport into disarray.63
In this example, United (in collusion with the DIA) resorted to spatial maneuvers to ensure that the union workers’ picket would be ineffective. The workers could still picket, but not where they wanted. The spatial restrictions on where the union workers could picket were strategically calculated to annul the impact of the picket and ultimately thwart the workers union from gaining support for their grievances. In this case, the conflict between United and the workers union played out geographically, with United gaining the upper hand through deliberate spatial maneuvering.
In the campus context, universities sometimes use spatial tactics to target, suppress, and/or marginalize unpopular or nonconforming student groups. In some cases, universities employ spatial tactics in ways that are more apparent. A few decades ago, universities including Virginia Commonwealth University and Texas A&M University routinely denied recognition to
gay student groups and student groups advocating gay rights and thereby marginalized them from campus and campus life. 64 They kept such groups at the margins—geographically and socially—not by banning them outright but by refusing to recognize them and making their campuses inaccessible to non-recognized groups. Universities thus used spatial maneuvers to manage their campus cultures and thwart the spread of purportedly deviant groups and ideas.
In other instances, however, universities employ spatial tactics in ways that are less apparent. Specifically, universities sometimes enforce their RSO policies selectively (rather than as-written) in order to target and marginalize some noncompliant student groups while letting other noncompliant groups slide. In 2003-2004, for instance, Louisiana State University (LSU) denied recognition to the Muslim Student Association because the student group refused to align its constitution with LSU’s nondiscrimination policy. The Muslim Student Association lost the ability to reserve and use campus facilities, raise funds, sponsor speakers, and distribute literature on campus.65 LSU initially claimed that all student groups were being asked to comply with the policy, but the administration then shifted its position by claiming that the policy applied to most, but not all, student groups. Several Christian student groups, among others, were not asked to comply with the policy.66 LSU failed to explain why it applied its RSO policies selectively. In recent years, universities including San Diego State University, UC Hastings College of the Law, and the University of Iowa appear to have enforced their RSO policies in a similarly selective
64See Gay Alliance of Students v. Matthews, 544 F.2d 162; Gay Student Services v. Texas A&M University, 737 F.2d 1317.
65“Louisiana State University: Threat to Muslim Group’s Freedom of Association,” FIRE (blog), accessed August 13, 2018, https://www.thefire.org/cases/louisiana-state-university-threat-to-muslim-groups-freedom-of-association-3/.
