Public Spaces, Marketplaces, and the Constitution: Shopping Malls and the First Amendment

320 Pages·2015·2.22 MB·English

by  Anthony Maniscalco

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 with-
out 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 permis-
sion 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 . . .
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CONTENTS
Acknowledgments ix
Introduction 1
CHAPTER 1:
Built Environments and the Public Sphere 13
CHAPTER 2:
Public Space as Democratic Practice: A History 37
CHAPTER 3:
The Public Forum Doctrine versus Public Space 83
CHAPTER 4:
Closing the Commons in American Shopping Malls 121
CHAPTER 5:
Toward a Second Chance for the First Amendment 179
in Third Spaces
Notes 225
References 263
Table of Cases 281
Index 283
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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 anal-
ysis, 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 demon-
strated 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.
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