| This thesis explores the tension between practicable space and property rights. That tension has frequently animated legal contests over political expression in privately owned, publicly accessible marketplaces in the United States. Do American marketplaces function as marketplaces of ideas? Should they? In order to examine those questions, I survey the Supreme Court's considerations of expressive activity on public and commercial property, in particular, shopping centers. I begin by developing indications of public space, as well as noting the challenges for civic inclusion within the modern political sphere. Next, I survey historical practices of public space within (Western) marketplaces. Those practices reveal myriad negotiations over the multi-functionality of urban place, as well as dialectical interplay between publics and embodied spaces, which appear to impact civic capacity. In an era of suburbanization, space, spatial practices, and legal interpretations transform significantly, due in large part to the segregation of private places and purposes from genuine public uses. I combine social and political theory with case studies of judicial decision-making, in order to historicize the contest over practices and exclusions of space. I trace the development of the High Court's public forum doctrine, focusing specifically on typologies used to regulate expression on public property. Then I detail the Court's rulings on free speech and assembly inside shopping centers. After examining the way in which Supreme Court precedents have been construed in two states, New York and New Jersey, I argue for revisited First Amendment protections of expressive space inside privately owned shopping centers. The goal of this study will be to look beyond a zero-sum game between space and property, towards a more inclusive view of commerce and public functionality. |
