Filtering out people from public space
Donald Trump’s election has brought the ‘filter bubble’ to the attention of a wider public: As a result of personalised search results and news-streams, Internet users get less and less exposed to conflicting viewpoints and are isolated intellectually in their own informational bubble. Authors such as Cass Sunstein and Eli Pariser warned of this phenomenon already some time ago, pointing to the dangers for democracy that the filtering out on the Internet of everything that we may not want to see entails (watch this talk by Pariser).
In my book Exclusion from Public Space: A Comparative Constitutional Analysis, I argue that a parallel development is occurring in the physical part of the public sphere. In recent years, states have increasingly started to adopt measures that are intended to protect users of public space from encounters they may find undesirable.
I examined the relevant practice in the United Kingdom, the United States and Switzerland and found that every year tens of thousands of teenagers, homeless, drug addicts, potential sex offenders, football hooligans, protesters and others are banned from parts of public space. In the United Kingdom, countless people are subject to anti-social behaviour orders (ASBOs) (now called Injunctions to Prevent Nuisance and Annoyance (IPNAs)) that prohibit them from accessing certain areas; a thirteen-year-old, for example, was banned from visiting the centre of his home town for two years. In the Swiss city of Zurich, in one year alone, 5’232 exclusion orders were imposed against drug addicts, alcoholics and others. In the vast majority of US cities, juveniles are prohibited from being in the streets at night. In all three states, protesters are routinely denied access to certain inner city areas. Hardly known twenty years ago, exclusion from public space has today become a standard tool of state intervention.
My book explores the implications that exclusion powers have for the constitutional essentials of liberal democracy. First, as they are typically not based on an explicit legal authority, exclusion measures raise concerns with regard to the rule of law. Second, banning people from public space simply to protect others’ feelings may amount to a disproportionate interference with a range of fundamental rights and is thus problematic from the perspective of liberty. Third, by specifically targeting particular groups of people, exclusion measures create a two-class scheme of access to public space and thus undermine the principle of equality. Fourth, in a democracy, all members of society must have the possibility to be visible in public space, so as to be represented in our images of the polity. When we meet beggars, homeless people or drug addicts in a public street, we cannot fail to acknowledge the existence of social problems such as poverty, homelessness or addiction. The consequence of exclusion measures, however, is that ever larger sections of the population are ‘filtered out’ from the most frequented parts of public space.
Space is a social product. Just as the existence and implementation of legal guarantees of liberty and equality turn a given space into a public space, the adoption of exclusion measures may deprive a given space of its truly public nature: rights produce public space, whereas limitations of rights reduce it. By changing the nature of public space – where and how we go through it, what and whom we see there – exclusion measures also change the character of a liberal democratic society. If the book manages to draw attention to the fundamental nature of the consequences of exclusion from public space, it will have achieved its main purpose.
Read Moeckli’s book: Exclusion from Public Space: A Comparative Constitutional Analysis.