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Abstract

Part I of this article examines how some commentators can plausibly argue that constitutional liberty and privacy protections do not protect the individual liberty and privacy that modern individuals have come to expect in many public spaces, particularly in urban environments. Constitutional liberalism, this section points out, makes this question a difficult one, because it is marked by scrupulous neutrality towards different visions of “the good life.” In other words, the constitutional order does not condemn those who choose a communitarian way of life and favor those who prefer individualism. Rather, it tolerates both of these (and other) preferences about one’s social and cultural environment, and leaves citizens free to opt for the life of their choice. Part II suggests that it is difficult to make sense of our modern jurisprudence of First Amendment rights, especially as they relate to anonymous communication and association on the Internet and elsewhere, unless one allows room in our constitutional law for a jurisprudence that “captures” and preserves social incarnations of liberty and privacy that were not yet in existence when theConstitution was drafted. Therefore, it is possible for for courts and others to find that freedom-enabling institutions that did not exist earlier in American history, and might cease to exist in the future, deserve certain constitutional protection while they are here. Part III explains that like the virtual liberation offered by the Internet, city life offered and continues to offer an invaluable refuge for substantial expressive activity and intellectual exploration that would be far more elusive without this type of urban existence. It provides individuals with an incredibly rich bazaar of ideas, and allows them to browse among these deas, substantially free from outside monitoring or control. While First Amendment law does not single out urban environments for protection, it protects such environments indirectly by preserving certain opportunities that are characteristic of modern urban life: opportunities for giving speeches to large crowds, for confronting strangers with ideas they may find unfamiliar or provocative, or for speaking or gathering information in the anonymity of the crowd.

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