The public square is for everyone

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Recent advances in communications technology have made it easier than ever for speakers to spread their messages and for listeners to find the content they are after. I emailed the final draft of this column to the NewBostonPost yesterday, and today it might be read by someone on the opposite side of the world on a smartphone.

Those same technological advances have, paradoxically, made it easier than ever to ignore unwelcome speech. The half dozen television channels of my youth have been multiplied a hundredfold, and television itself is increasingly irrelevant in light of internet media. There is a dedicated content provider for every point of view. The Right watches Fox News, the Left has CNN or MSNBC. Even within the broader political labels, the media is extraordinarily differentiated: Depending upon one’s precise views, a liberal reader might focus her attention on the New Yorker (limousine liberals), the Nation (quasi-socialists), or Mother Jones (blame-America-firsters).

One side listens to the other’s voices, if at all, only long enough to find material to mock. (Donald Trump has my liberal friends in a Facebook tizzy.) It’s no wonder we seem to be ever more polarized as a country; too often, we don’t really know what the other side is thinking.

There is one “media market,” however, that is not so easily segmented: the public square. Driving down streets or walking down sidewalks, one cannot avoid opposing views merely by pressing a button or clicking a mouse.

Messages from politicians and political activists are displayed on billboards, on bumper stickers, and on handheld signs.

An example: During my morning walk from South Station, I regularly walk past a man holding signs urging the U.S. military out of this, that, or another country. Nearly every day for a few years, he has exposed thousands of people to a message they otherwise might never see.

Within shouting distance of that speaker I also sometimes see two Jehovah’s Witnesses manning a table with literature about their faith, and one or two homeless people with signs asking for spare change. Their speech isn’t political, but it is a reminder of issues with political overtones: the importance of religion in our society, and the sometimes brutal impacts of economic dislocation, mental illness, and substance abuse.

The First Amendment to the U.S. Constitution clearly protects all speech in the public square. Sometimes, however, governments cannot resist passing laws intended to curb speech by unpopular speakers.

Over the last three years, I worked with the ACLU to challenge a series of municipal ordinances making it a crime to ask passersby for charity in public – in other words, to panhandle. The cities and towns passing these laws, such as Worcester and Lowell, denied that they intended to discriminate against speech by the homeless. The breadth of peaceful, non-dangerous conduct these cities’ laws banned, however, plainly demonstrated that they were targeting speech, not any public safety issue.

Remarkably, some federal judges saw nothing wrong with laws singling out and criminalizing solicitation for charity on public sidewalks. One judge ruled that a government can ban speech that is “especially unwanted or bothersome.” Another – a former U.S. Supreme Court Justice, sitting in the lower courts during retirement – reasoned that a government can ban speech if it causes “discomfort” to listeners.

Fortunately, this position ultimately was rejected, and in the past six months we have succeeded in striking each of these laws down. When we did, messages of congratulations from my (invariably more liberal than me) friends often included some version of “great to see you working for a liberal cause!”

Although of course appreciated, I found these notes amusing. The ability of “bothersome” speakers to deliver messages that cause “discomfort” in public places is just as much an issue for the Right as the Left. If anything, the Left seems more intolerant of free speech these days: witness the proliferation of university speech codes (and calls for “safe spaces”), as well as restrictions on abortion clinic protesters or campaign financing to fund advertising. But the same legal principles that protect the right of a homeless person to ask for change also protect a pro-life counselor’s right to speak outside an abortion clinic.

We need not agree with a speaker to respect his right to speak his piece. That is the crucial point of the First Amendment, which people across the entire political spectrum must remember.

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm. Read more columns by Kevin P. Martin here.