Abstract
Universities and the press have both played important roles in facilitating public discourse—and they are two of the institutions of public life that Paul Horwitz argues deserve special status in law as First Amendment institutions. So have churches, libraries, and associations.
In this book about the relationship between this “infrastructure of free expression” (p. 3) and modern First Amendment doctrine, Horwitz, the Gordon Rosen Professor at the School of Law at the University of Alabama, presents an argument in favor of an institutional approach to First Amendment analysis. This approach places greater importance on particular institutional norms and practices because of their stable and established history and their self-regulating practices.
This is not a radical argument, and Horwitz builds off work, in particular, from First Amendment scholars Frederick Schauer and Robert Post. Horwitz argues that the institutional approach is an alternative to the “acontextualilty” that has evolved in modern doctrine. But the book is a significant contribution in its own right to First Amendment scholarship because it provides nuances and details about the institutional approach by discussing interesting problems and questions about the evolution of law and the role of free speech and press in modern society.
The book is divided into three sections. Part one, comprising the first four chapters, introduces the complex landscape of modern First Amendment doctrine and the rationale for an institutional approach. This is a good primer for readers seeking a clear and comprehensive overview of First Amendment law generally. Part two comprises five chapters each devoted to a First Amendment institution: universities, the press, churches, libraries, and associations. The sixth chapter explains the “borderlands” of institutionalism by discussing the family, corporations, professional speech, and politics. Part three, called “Problems and Prospects,” critiques the institutional approach and addresses its implications beyond First Amendment law.
What makes some institutions “First Amendment” institutions? Horwitz points to three defining characteristics: they play a fundamental role in public discourse, are stabile and established, and have self-regulating features. Judges should be especially sensitive to the context of First Amendment claims that arise in connection with these institutions because of these factors, Horwitz proposes.
In practice, an institutional approach might mean that universities have greater leeway to determine if they recognize student clubs that advance or defy diversity and anti-discrimination efforts. An institutional approach would “provide journalists greater protection for journalism as an institutional process” (p. 155), and Horwitz discusses in depth a functional approach to broadly encompass much of the “new” media.
Horwitz’s discussion of the First Amendment rights of associations illustrates some of the tensions with an institutional approach. Associations, which judges have classified in varying forms as “intimate,” “expressive,” and “non-expressive,” have given rise to a number of First Amendment cases that balance privacy, equality, and liberty claims. Horwitz does an excellent job providing the evolution of associational-rights doctrines and presents varied arguments about the appropriateness of deference to group claims.
If the institutional approach has value as a new model of First Amendment analysis, Horwitz writes that reshaping “First Amendment doctrine around social and institutional categories can help make it more responsive to the real world of public discourse and less top-down in its approach to the regulation of public discourse” (p. 261). In his final chapter, he discusses how the approach is similar to and different from the existing models of categories and balancing.
In the classroom, this book would be engaging in graduate seminars about media law and the First Amendment. Its introductory chapters also provide a succinct summary of modern First Amendment frameworks, so it would be useful stand-alone reading for undergraduate media law classes. Scholars of academic freedom, freedom of the press, and First Amendment theory would also find the book provocative and engaging.