Having thus drawn the terms of the conflict, the author goes on to enlarge upon the essential role of public space in a democratic society, particularly as expressed in the public-forum doctrine. Chapter two grounds the importance of public forums in legal-historical, philosophic and constitutional terms.
- Thus the idea that streets and parks must be open to public access and expression was reaffirmed by a 1939 Supreme Court decision that invoked their ancient status as spaces for "assembly, communicating thought between citizens, and discussing public questions" (23). The result is not merely a negative, an injunction on the government not to suppress public speech; rather, since it is the government that bears the expenses related to the maintenance, cleanup and security of these public spaces, the public forum doctrine in effect institutes a system of subsidies for the freedom of public expression.
- Secondly, public forums are essential to a deliberative philosophy that a democratic system depends on because they enable speakers to reach heterogeneous groups of citizens or to target their message to specific listeners to whom their grievances are addressed; additionally, a public forum increases "the likelihood that people generally will be exposed to a wide variety of people and views" (27).
- Lastly, the spirit of reasoned deliberation public forums promote is in keeping with the intention of the framers of the American constitution, who, Sunstein notes, were equally wary of tyrannical monarchy and of direct democracy that would translate unmediated public sentiment, resentment, or prejudice into law.
1. By reference to Socrates's daimonion (Apology, 31d) that, the philosopher claimed, warned him not to act in a certain way, I am calling "daimonical" the arguments Sunstein gives against allowing the private realm to take over the attributes of the public space.
