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First Amendment Institutions

First Amendment Institutions

Paul Horwitz
Copyright Date: 2013
Published by: Harvard University Press
Pages: 336
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  • Book Info
    First Amendment Institutions
    Book Description:

    Addressing a host of hot-button issues, Horwitz argues that rigidly doctrinal interpretation renders First Amendment law inept in the face of messy, real-world situations. Courts should let institutions with a stake in these freedoms do more work to enforce them. Self-regulation and public criticism should be the key restraints, not judicial fiat.

    eISBN: 978-0-674-06737-0
    Subjects: Law, Political Science, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-x)
  3. Acknowledgments
    (pp. xi-xiv)
  4. Introduction
    (pp. 1-24)

    Your day begins like any other: in the company of others.

    You and your spouse wake to the sound of the radio. As you prepare breakfast and get the children ready for school, NPR plays in the background. The headlines this morning start with yesterday’s ruling by the Supreme Court, holding that civil rights laws cannot generally interfere with a church’s decision on whom to hire or fire to perform key “ministerial” duties such as providing religious instruction to children in a church school.¹ Curious for more information, you turn surreptitiously to your iPhone (which is not allowed at the...

  5. Part One: From Acontextuality to Institutionalism

    • 1 The Conventional First Amendment
      (pp. 27-41)

      Before we can take the institutional turn, we must understand where the First Amendment is today: its leading values, theories, and judicial doctrines. Not all of those issues and debates will directly impact our discussion of First Amendment institutions. But they provide a useful background for those who are unfamiliar with the First Amendment’s immense literature and jurisprudence, and help us to see what current approaches get right and what they miss. In looking at them, we will see a common thread: they routinely emphasize the individual and deemphasize the institutional.

      Discussions of the First Amendment often begin with the...

    • 2 The Lures and Snares of Acontextuality
      (pp. 42-67)

      As we saw in Chapter 1, Justice Oliver Wendell Holmes, Jr., is a pivotal figure in the development of First Amendment doctrine, and more broadly of American legal thought. Holmes often expressed himself in aperçus, so it is unsurprising that he means different things to different people. That’s a lucky stroke for us, because Holmes provides both the central text against First Amendment institutionalism and the central text for it. More than that, he opens a window onto two very different ways of thinking about the relationship between law and the world.

      The first text appears in Holmes’s Celebrated 1897...

    • 3 Taking the Institutional Turn
      (pp. 68-79)

      There is an alternative to the standard way of carving up the world that lawyers and judges use. It is a way we might reconceive the concepts and categories we use in viewing the world through the First Amendment lens—or, to put it differently, a way we might begin to see the world as it is and adjust the First Amendment to fit its framework. This is the institutional turn.

      Lawyers and judges will always carve up the world according to various concepts and categories. How could they not? Law is meant to order human activity, and making sense...

    • 4 Institutions and Institutionalism
      (pp. 80-104)

      The case of Jacobellis v. Ohio¹ offers one of the most famous cop-outs in the history of Supreme Court decision-making. Nico Jacobellis, the manager of a movie theater in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene French art film. The Court reversed his conviction on First Amendment grounds.

      Jacobellis was decided during an era in which the justices were forced to decide in case after case whether a particular film, magazine, or other speech material was obscene and therefore constitutionally proscribable, with each justice using a different standard.² Although some of us may...

  6. Part Two: First Amendment Institutions in Practice

    • 5 Where Ideas Begin: Universities and Schools
      (pp. 107-143)

      On the list of obvious candidates for treatment as First Amendment institutions, universities are perhaps the most well-established. We have long associated their flourishing with the health of the American body politic. George Washington called education essential to “the security of a free constitution.”¹ Brown v. Board of Education, the most famous Supreme Court decision of the last century, observed that public education has become “perhaps the most important function of state and local governments.”² Educational institutions are fixtures in our social landscape. That is certainly true of universities, whose distinct nature has been a millennium in the making. It...

    • 6 Where Information Is Gathered: The Press, Old and New
      (pp. 144-173)

      In 1974 Justice Potter Stewart, of “I know it when I see it” fame, gave a lecture at Yale Law School on “the role of the organized press—of the daily newspapers and other established media—in the system of government created by our Constitution.”¹ That speech can be seen as a story about a path the law has not taken officially, but has taken more informally. It is also a story about paths Stewart could not then have imagined.

      In First Amendment cases, Stewart said, the Supreme Court usually focused on “isolated individuals”—such as “the soapbox orator” and...

    • 7 Where Souls Are Saved: Churches
      (pp. 174-193)

      The First Amendment has long recognized what Ira Lupu and Robert Tuttle call “the distinctive place of religious entities in our constitutional order.”¹ The Supreme Court has celebrated the power of religious organizations “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.”² Despite the law’s tendency to view religion as an individual matter, it has recognized the enduring importance of “the autonomy of religious organizations.”³ Given the prominent role that religious groups have played throughout our history, the long-established recognition of the “essential distinction between civil and religious functions,”⁴...

    • 8 Where Ideas Reside: Libraries
      (pp. 194-210)

      Most of the First Amendment institutions we have examined so far contribute actively and vocally to public discourse. Libraries, the subject of this chapter, are somewhat different. They are places where views are shaped and changed, not expressed. The atmosphere of the library is not “the tumult of the public square” but the silence of the monastery.¹

      When it comes to libraries, the courts outdo themselves in their propensity to rhapsodize.² Libraries are “hallowed place[s],” locations “dedicated to quiet, to knowledge, and to beauty.”³ They “pursue the worthy missions of facilitating learning and cultural enrichment.”⁴ The courts agree that libraries...

    • 9 Where People and Ideas Meet: Associations
      (pp. 211-238)

      Americans are prodigious joiners. There are hundreds of thousands of associations in the United States. Some 79 percent of Americans belong to one or more of them.¹ Although it has become common to lament the declining participation in civic and other associations,² they are far from an endangered species. Their importance should not be ignored.

      Neither should their complexity. Researchers have distinguished between primary, secondary, and tertiary associations, depending on the nature of the personal contacts involved.³ Courts and legal scholars have distinguished between “intimate,” “expressive,” and “non-expressive” associations,⁴ and commercial and noncommercial associations.⁵

      In recent years freedom of association...

    • 10 The Borderlands of Institutionalism
      (pp. 239-258)

      Having examined some of the most obvious First Amendment institutions, we arrive at the borderlands of First Amendment institutionalism: the more uncharted territories of the institutional turn. These territories are not uncharted because they are unfamiliar; they are all well-known institutions. They are borderline cases for two other reasons. First, they raise questions about the definition of First Amendment institutions and the scope of their autonomy. Second, they have not been entirely comfortably situated within the law of the First Amendment. Each of them has posed vexing questions for the courts, which have been caught between the desire for acontextual...

  7. Part Three: Problems and Prospects

    • 11 Critiques of First Amendment Institutionalism
      (pp. 261-279)

      The institutional turn is important, but it is not everything. As I have observed elsewhere in this book, it is not meant to be the sole guide for First Amendment doctrine. It is a supplement, not a substitution. The soapbox speaker, as we have seen, does not constitute the whole of public discourse.¹ Still, the soapbox speaker does exist, and she represents a multitude of individual speakers for whom existing doctrine continues to serve a valuable purpose. Current doctrine is weakest where its broad rules do not adequately account for the importance of particular institutions and their self-regulatory practices to...

    • 12 Institutionalism Beyond The First Amendment?
      (pp. 280-292)

      My concluding chapter is about connections. Through most of the book, my focus has been close to the ground. In Part One, I presented some problems with current First Amendment doctrine and argued that the institutional turn represents a potentially feasible solution. Both the problems and the solution are closely related and practically oriented. The First Amendment and the values it serves involve much more than a contest between a single individual speaker and a single sovereign state. As the pragmatist philosopher John Dewey observed, “[p]eople are creatures of social context.”¹ One crucial piece of this context is that the...

  8. Notes
    (pp. 293-360)
  9. Index
    (pp. 361-368)