Reviewed by Ruthann Robson, Professor of Law and University Distinguished Professor, City University of New York (CUNY) School of Law.
Law Professor Paul Horwitz thinks First Amendment doctrine and theory is a mess. It’s a sentiment that almost everyone familiar with the subject shares, especially as it relates to “free speech.” Look at any law school casebook: the tables of contents vary as do the cases under similar headings. For litigators, arguments about which doctrine should apply – rather than how doctrine should apply – often predominate. For courts, selecting applicable precedent is vexing.
To highlight just one example of this pervasive problem, Christian Legal Society v. Martinez (CLS), decided by the United States Supreme Court in 2010, involved the refusal of University of California Hastings College of Law to recognize the student chapter of the Christian group because the group discriminated on the basis of sexual orientation, violating the school’s nondiscrimination policies. As Horwitz writes, the Court’s opinion was “an exercise in slotting” (p.235). Was the conflict properly resolved under the “public forum doctrine” or “freedom of association”? The Court’s majority chose a “limited public forum” analysis, rendering what Horwitz describes as a “dryly technical decision.” For Horwitz the opinion illustrates the “broader lesson” of how “ill-suited” present doctrine is to the resolution of controversies such as CLS. Most scholars who have analyzed CLS and most judges who have attempted to apply CLS would not disagree.
Horwitz’s goal, however, is to replace this predicament with “the institutional approach.” Building on the work of other scholars, Horwitz provides the most sustained, nuanced, and well-reasoned argument for an “institutional turn” in First Amendment jurisprudence. Horwitz argues that institutions “form a central part of the infrastructure of public discourse” (p.3) and should be recognized as such. He suggests that the doctrinal categories of the law should be redrawn to reflect the centrality of certain institutions to public discourse. Thus, the fact that the
Horwitz contrasts the institutional turn with what he terms “acontextuality.” On this view, institutionalists are realists in [*203] contrast to the formalists who strictly apply doctrine without considering context. In Horwitz’s Habermasian phrasing, institutionalists reject the law world in favor of the “life-world.” But this acontextual critique is not as well-founded as Horwitz’s thesis that First Amendment doctrine is incoherent. Indeed, one might argue that First Amendment doctrine often suffers from being overcontextualized; Horwitz’ provides an example of such when he considers “media-specificity” in free press cases, including the notorious expression in Metromedia, Inc. v. City of San Diego (1981) that the Supreme Court is dealing “with the law of billboards” (p.39). Moreover, Horwitz promotes Justice Antonin Scalia to the position of the “foremost advocate on the Supreme Court of an acontextual approach to constitutional law” (p.61), a label that many would dispute. Scalia could just as easily be accused as being driven by an overly contextual approach: racial and sexual minorities always lose and corporations always win, no matter the First Amendment doctrine to be applied. Thus, the problem may not be institutionalism as opposed to acontextualism, but valuing of different contexts and life-worlds.
At the heart of Horwitz’s endeavor is his definition and elaboration of specific institutions central to the First Amendment. Without using the term “civil society,” he evokes it: First Amendment institutions are not “just any place in which social life occurs,” he argues (emphasis in original). Instead:
They are those institutions that are foundational to our lives as social beings, as citizens and participants in our collective culture. They are the sites that equip us for social life and through which social life takes on much of its meaning. And here, to paraphrase Orwell, some institutions are more equal than others. (p.84).Horwitz’s definitional test for the “more equal” institutions focuses on two particular features: they are “relatively stable and established” and they are “self-regulating” (p.15). Given these qualities, institutions are entitled to a “bounded, but genuine, form of legal autonomy.” Importantly, these institutions are entitled to judicial deference.
By this point in the book, readers are anxious to know which institutions deserve this exceptional status. Horwitz does a terrific job of making his arguments concrete in five separate chapters, with a sixth chapter on “border” institutions, allowing readers to fully engage with his ideas and with their consequences. Yet it is probably in these chapters that readers are most likely to find particular points of disagreement.
Horwitz begins with universities as being the most well-established of the candidates for First Amendment institutions, arguing in part that the underdeveloped notion of “academic freedom” should be returned to its “institutional roots.” But because the roots of elementary and secondary schools are “too shallow,” as well as because these schools are not “self-regulating” and “professionalized,” these institutions have a lesser status. Given the plethora of First Amendment cases that concern teachers, students, and others in schools, one wonders whether the “institutional turn” in First [*204] Amendment doctrine would be of any use to such controversies. Perhaps schools would remain subject to the current confused doctrine, which would become decidedly second-tier. This result would further strengthen the division between universities (which only a portion of the population attend) and other schools and leaves the First Amendment institutions theory open to charges of elitism.
While Horwitz’s advancement of the press and libraries as First Amendment institutions is probably among his least controversial, his elevation of churches in the chapter entitled “Where Souls are Saved,” is bound to rankle some. His notion that religious entities constitute a “sovereign realm” departs from his earlier descriptions of First Amendment institutions; a difference in tone he readily admits but ascribes to the fact that religious entities “predate the modern state.” Some might argue that this is the very reason why religious entities should not be accorded special First Amendment status, since they are profoundly not devoted to the type of robust democratic exchange that many believe underlies and justifies the First Amendment.
Less privileged than churches, but still worthy of being First Amendment institutions, are “associations,” because, as Horwitz announces, “Americans as prodigious joiners” (p.211). Again readers might pause, especially given that one of the most prominent examples is Boy Scouts of America. Horwitz also considers “borderland” First Amendment institutions, such as family, corporation, profession, and electoral politics. In all of these, many readers will find room to disagree with particular aspects of the prestige Horwitz accords to these institutions.
The strength of Horwitz’s book is that he invites and engages such disagreements. Throughout the book, and most pointedly in the chapter “Critiques of Institutionalism,” Horwitz raises counterarguments and expresses his own reservations. For example, he addresses those who exhibit a distrust of institutions, including the church “capable of profound abuses.” It would have been better if Horwitz’s conclusion had seemed less dismissive –“their fears are overstated” (p.269) – especially given the unusually high concentration of citations from women in the discussion of church-distrusters relative to the rest of the book.
Horwitz clearly states that his attempt is to open a conversation about First Amendment institutionalism. He has admirably achieved his goal, providing a book that is worth reading, considering, and debating.
Christian Legal Society v. Martinez, 561 U.S. ___ (2010).
Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981).
Copyright 2013 by the Author, Ruthann Robson.