First Amendment Institutions.

• Author: Kozel, Randy J.
• Position: Book review

FIRST AMENDMENT INSTITUTIONS. By Paul Horwitz. Cambridge and London: Harvard University Press. 2013. Pp. xiii, 359. $49.95.

INTRODUCTION

This Review makes two claims. The first is that Paul Horwitz's (1) excellent book, First Amendment Institutions, depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument--and, to a large extent, the leading edge of contemporary institutionalist thinking--ought to be received, understood, and evaluated.

First Amendment institutionalism urges greater attention to the nature of institutions as producers of speech and domains for individual communication, reflection, and socialization (pp. 8-11). Its central premise is that by recognizing the unique roles and features of entities such as universities, newspapers, and churches, courts can develop a better and more coherent body of constitutional doctrine.

Professor Horwitz develops the institutionalist case for a revised constitutional jurisprudence. He also goes further, asserting that institutions are more than the sum of their parts. The thrust of his argument is that individual flourishing is best promoted by recognizing the distribution of autonomy among numerous institutions, both public and private. It is not enough for sovereign authority to be divided between the federal government, the states, and private citizens. The nonpolitical institutions that people use to develop their faculties, construct meaning, and exercise freedom must also be insulated from governmental intrusion. (2)

We might think of this theory in terms of structural institutionalism (3): a conception of the constitutional order in which various institutions outside the realm of political government "develop their own visions of what the First Amendment means" (p. 19). Within the scheme of structural institutionalism, the primary role of the First Amendment is to identify those entities in which autonomy resides. Professor Horwitz does not suggest that every conceivable organization, or even every important one, carries with it a zone of autonomy. Such an approach would diminish the sovereign authority of governments beyond recognition. But "First Amendment institutions"--universities, churches, media outlets, and other entities that comprise the "'infrastructure of free expression'" (4)--occupy a special place in society. These organizations "play a central role in the formation and dissemination of public discourse" (p. 82). By recognizing and respecting the autonomy of such institutions, the argument goes, courts can promote discourse, self-actualization, and a richer social environment. They can also confine the reach of government to its proper, and limited, sphere.

Professor Horwitz is not the first to suggest a structural dimension to the First Amendment. Nor is he the first to connect structural objectives with the enterprise of First Amendment institutionalism. (5) The value of First Amendment Institutions comes from developing this position systematically and in impressive depth. Through his analysis and juxtaposition of various institutions, Professor Horwitz advances the argument that "government is merely one strut" in the "broader infrastructure" of social existence (p. 83). In so doing, he provides a portrait of structural institutionalism as a constitutional ideal.

That, however, cannot be the endpoint of the institutionalist movement. If structural institutionalism is a legitimate constitutional theory, it must emanate from a discernible constitutional source. Notwithstanding his thoroughness in other respects, Professor Horwitz devotes relatively little attention to the question of constitutional foundations. Yet it is ultimately those foundations that will define structural institutionalism's scope and determine its validity as a vision of the constitutional order.

This Review begins in Part I by describing the "institutional turn" as a prescription for constitutional doctrine (p. 68). I focus on the argument's two discrete steps of increasing judicial responsiveness to factual context and acknowledging the considerable autonomy that institutions rightfully possess. In Part II, I contend that Professor Horwitz's defense of institutionalism is best understood as a wide-ranging theory of constitutional structure. The theory, which I call structural institutionalism, depicts an array of different institutions as engaged in a joint enterprise to limit the reach of official orthodoxy. As I explain, the markers of structural institutionalism present themselves in different ways within the various institutions that Professor Horwitz discusses. Finally, Part III integrates structural institutionalism with broader issues of constitutional interpretation by investigating the theory's constitutional foundations.

It warrants noting at the outset that this Review does not provide a normative assessment of First Amendment institutionalism. Instead, my project is to define the structural implications of the institutionalist position and to specify the role of constitutional theory in assessing the position's validity. These steps, I submit, are necessary predicates to evaluating structural institutionalism on the merits.

1. THE INSTITUTIONAL TWO-STEP

   Professor Horwitz's thesis can be divided into two parts. First, courts ought to take greater, and more explicit, account of institutional features in crafting constitutional doctrine. Second, courts ought to respond to institutional features in a particular way. Combining the claims yields what we might think of as the institutional two-step.

   1. From Acontextuality ...

      A popular trope of free speech jurisprudence is the "lonely pamphleteer" (6) who agitates for political reform in the face of a government bent on censoring disfavored ideas (p. 13). The First Amendment wraps itself around the speaker to protect her from, in John Hart Ely's words, "the self serving motives of those in power." (7) But the reality of modern discourse suggests the need for a richer ideal, one that accounts for the role of institutional actors. Much of the speech that comprises the "market" of ideas (8) emanates from institutions like newspapers, universities, and associations. Institutional actors must take their place alongside the lonely pamphleteer if we are to fully understand the dynamics and implications of free expression. Professor Horwitz states the point plainly: "[W]e should take seriously the simple fact that a good deal of the speech and conduct that makes up some of the most important aspects of the lived world of First Amendment activity takes place through institutions" (p. 8).

      Enriching the prevailing ideal of expressive activity is a common objective among First Amendment institutionalists. While institutionalist scholars vary in approach-and not all of them would press the case for institutional autonomy as Professor Horwitz does-they generally agree that courts have paid too little attention to the distinctive features of groups and organizations. One pioneer of the institutionalist movement is Frederick Schauer, who urges that First Amendment doctrine be recast to "recognize those informational, investigative, and communicative domains whose more-or-less distinctive properties warrant special First Amendment treatment." (9) Likewise, Richard Garnett defends an institutionalist view of religious organizations (10) and a comparable, though distinct, approach to associations. (11) Other kindred spirits include Joseph Blocher, who emphasizes the role of institutions in promoting a well-functioning marketplace of ideas, (12) and John Inazu, who challenges the doctrinal treatment of free assembly and group autonomy. (13) The thoughtful work of these (and other) scholars offers a host of significant insights, and one of the goals of First Amendment Institutions is to draw them together in pursuit of an integrated constitutional theory.

      Professor Horwitz also devotes substantial attention to defining the principal problems that institutionalism seeks to rectify. The first pitfall is "acontextuality," which refers to "carving up the world into legal concepts and categories" without adequate attention to factual context (p. 45). We act acontextually when, for example, we invoke the distinction between public and private action "to conclude that Harvard University is more like Wal-Mart than it is like the University of Michigan" (p. 17). We commit a similar mistake when we assume that speech protections should apply no differently to members of the press than they do to any other citizen (p. 151), and when we impose abstract labels like "limited public forum" without acknowledging how much factual complexity is being obscured (p. 236).

      The danger of acontextuality is that it can lead courts to disregard "morally relevant details" in resolving disputes (p. 57). Courts that focus obsessively on the public-private distinction might overlook the fact that even public universities are "self-regulating autonomous enterprises" that need discretion to hire and fire faculty if they are to serve their function of contributing to the creation of knowledge (pp. 113-14). Courts likewise might overlook the fact that members of the media play a vital role in newsgathering that justifies a "strong constitutional privilege" against the compelled disclosure of sources, even if no comparable privilege is available to nonjournalists (p. 156). And courts might overlook the fact that associations, as "places in which speech is formed and...