First Amendment Institutions
California Lawyer

First Amendment Institutions

September 2013

First Amendment Institutions
by Paul Horwitz
Harvard University Press,
384 pages, $49.95, hardcover

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It was with a heavy dose of skepticism and a fair amount of reluctance that I cracked open Paul Horwitz's shot across the bow of First Amendment jurisprudence. As one who both practices and teaches in this area, I am always wary of books and articles that propose a solution to a perceived "incoherence" and/or "crisis" in First Amendment law. I don't find First Amendment law particularly "incoherent; nor as far as I know do my fellow practitioners.

Despite my initial reluctance, I ultimately found Horwitz's comprehensive analysis convincing and indeed somewhat modest in its proposals. First Amendment Institutions does not argue for a wholesale restructuring of legal doctrine. Horwitz, a law professor at the University of Alabama seeks only to start a conversation around the question of whether courts should grant certain "First Amendment institutions," (his category) substantial deference and autonomy. The seeds of such an approach are already present in the law; he argues that they should be cultivated further. And while the structural change he proposes might be small, the results would be significant and far-reaching.

So what are these "First Amendment institutions"? Horwitz defines them as entities that form a central part of public discourse, are well established and stable, and, perhaps most importantly, self-regulating by way of internal, professional norms and standards. According to the author, the paradigm "First Amendment institutions" are schools (particularly universities), the press, churches, libraries, and voluntary associations. To Horwitz, these are "places in which some of the most vital First Amendment activities occur"; indeed, their "contributions to public discourse play a fundamental role in our system of free speech."

The self-regulating quality of Horwitz's First Amendment institutions is key because the institutional autonomy he proposes means that the rules of public discourse will be set by the institutions themselves, rather than being imposed top-down by the judiciary interpreting the law. Thus, libraries would be free to decide what books to shelve and whether to install Internet filters. Universities would be substantially free to set rules for both faculty and student speech, make admissions decisions, and decide which student groups to fund or formally recognize. News reporters would be governed by time-tested professional and ethical rules with respect to the ability to protect unpublished information from disclosure and defamation. Religious institutions would be largely autonomous. Qualifying associations -- namely those that live by self-regulating rules -would have greater freedom to make membership decisions. And so on.

In such situations the familiar First Amendment doctrines currently employed - for example, the public forum and content-neutrality doctrines - would have no application. Nor would state action be a factor: These institutions would be equally due deference whether they were public or private entities. But Horwitz does not seek to render these familiar doctrines irrelevant. Rather they would still apply when a First Amendment institution was not involved, neither as a speaker nor speech regulator.

Horwitz concedes that his approach involves numerous difficult boundary decisions, for example, which news media institutions are deserving of deference. And his assertion that he is merely starting a conversation rather than birthing a fully formed doctrine is an unsatisfying excuse. But his point that many of the same and other more difficult boundary questions exist under current doctrine is well taken.

I certainly don't agree with everything Horwitz argues. Although I can accept that these institutions should have greater autonomy when faced with governmental censorship, I am not so comfortable with autonomy when the institution itself is playing the role of censor. In particular, Horwitz, vastly understates the problem of university speech codes, an "experiment" he describes, incorrectly I believe, as "short-lived." This type of action by universities would seem to fit better in his model as an area in which deference would not be warranted.

If I have one overriding criticism of the book, it is that it is unclear who the target audience is. Although the book contains enough practical information and suggestions to be useful to a practitioner, it is probably too repetitive (at 291 pages of text and an additional 68 of footnotes) to be used as a reference book. And for his colleagues in the academy, Horwitz could have gone the law review article route. Indeed, some of the content did read as merely filling out the hardcover binding.

David Greene is a senior staff attorney with the Electronic Frontier Foundation in San Francisco and an adjunct professor at the University of San Francisco School of Law.

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