Implementing First Amendment Institutionalism
only large-scale institutions, such as “the press,” but individualrepresentatives of those institutions—what I would call “organizations”
—such as the
New York Times.
The second part of the book measures the first part’s normativeanalysis against current First Amendment doctrine regarding universities,the press, churches, libraries, and associations. That Horwitz grounds histheoretical discussion in constitutional doctrine is a significantcontribution, for it shows the degree to which his theory finds support inexisting law, and what changes it would demand. That said, therelationship between Horwitz’s normative account of the First Amendmentand the status of existing doctrine could perhaps be clarified. At times, heseems to be operating from an external perspective, criticizing existingdoctrine for failing to accommodate institutional perspective:
At least on its face, then, First Amendment doctrine is not driven by contextual factors such as the nature of the speech or theidentity of the speaker. Instead, what is doing the doctrinal workin this area is a set of broader categories that are fundamentallylegal and acontextual.
But as the qualifying clause, “[a]t least on its face,” suggests, the notionthat existing doctrine is context-agnostic might be slightly overstated.Indeed, Horwitz himself later notes that “in some respects FirstAmendment doctrine has
taken the institutional turn, albeit not asforthrightly as it might.”
Consider public forum doctrine, which Horwitzidentifies as an acontextual culprit.
Though it might be true that specificapplications of public forum doctrine tend to be context-neutral, the very
of the doctrine gives special treatment to the kinds of places—likestreets and parks—that “have immemorially been held in trust for the useof the public, and, time out of mind, have been used for purposes ofassembly, communicating thoughts between citizens, and discussing
Post’s conception of public discourse is limited to “the formal political process.” H
note 1, at 84. Post’s account is certainly more state-centered than Horwitz’s, but I readPost as arguing that “First Amendment coverage should extend to all efforts deemednormatively necessary for influencing
,” not simply to those regarding thepolitical process.
URISPRUDENCE FOR THE
18 (2012)(emphasis added).
note 6, at 860-63 (describing the critical distinction between speechinstitutions and speech organizations).
note 1, at 11.