Political violence, order, and the legal construction of public space: Power and the public forum doctrine

This paper presents a historical geography of the legal construction of public space. I argue that to understand the nature of the laws and court decisions that govern political activity in public space, it is necessary to examine that law not in isolation, but in relation to the social struggles over and in public space that forced legal decision making. I begin by examining a recent Supreme Court decision concerning the rights of anti-abortion protestors and show how that decision was built on a long history of controlling dissent—particularly the dissent of unionizing and striking workers—rather than on a history of protecting the right to assembly and speech in public space. The legal structure of public space derives first from imputing “violence” to those who dissent, and then seeking ways to control that dissent in the name of protecting property rights. I argue, therefore, that it has only been by actively challenging—on the streets and in the courts-legal definitions of appropriate behavior in public space that marginalized groups have been able to claim the space to fight for their vision of rights and a just society. The bulk of the paper is given over to an examination of the dialectic of “violence” and control that has guided key decisions in public space law. At the end of the paper, I return to the abortion decision and, by situating it both within the history I have told and within evolving theories of law and geography, assess its implications for the use of public space to protest other issues.