The First Amendment in 2020: An Institutional Perspective

Crosspost from Balkinization

Justice Oliver Wendell Holmes once famously wrote, “We must think things not words, or at least we must constantly translate our words into the facts for which they stand, if we are to keep to the real and the true.” The difficulty of this advice should not be underestimated – especially for lawyers. Lawyers are rather more gifted at thinking words not things: at wielding and manipulating concepts that do not always match up well to the world on the ground. Lawyers, Rick Hills has written, have “a deeply felt desire . . . to achieve noninstrumental certainty in the law.” And Fred Schauer has written of the lawyer’s tendency to think in terms of “juridical categories” rather than categories that correspond more closely to the lived reality of our world. I have called this temptation the lure of acontextuality: the futile hope that we can impose order on the world from the top down with the conceptual skills that are simultaneously lawyers’ greatest gift and their greatest handicap.

The law of the First Amendment abounds with evidence of the lure of acontextuality. Across a range of First Amendment doctrines dealing with very different forms of speech, worship, association, and institutional and discursive frameworks, we see judges and scholars hoping to find some frame, some word or concept, that will bring a theoretically pure and coherent shape to the whole of First Amendment law, with little apparent regard for who is speaking or what is being said. “Equality,” “neutrality,” “content-neutrality,” and many more buzzwords are touted as the path to an analytically pure First Amendment. 

Invariably, these proposals fail to win complete agreement. But that does not appear to extinguish hope for some Grand Unified Theory of the First Amendment. If one of these concepts is revealed as a failure, if it does not capture all of the First Amendment within its grasp, then some new candidate will take its place soon enough. Like Gatsby, First Amendment theorists think: “It eluded us then, but that’s no matter – tomorrow we will run faster, stretch out our arms farther.  And one fine morning . . . .” Yet the next morning dawns, and everyone seems to agree: despite the effort to impose some order on the First Amendment, it remains “notoriously scattered and confused, a jumble of incompatible and indeterminate tests,” as Robert Post writes in one of his contributions to The Constitution in 2020.

Is there a better way to proceed? I believe there is. In fact, a number of First Amendment scholars, of whom I am only one, have argued that the way out of the First Amendment impasse lies in resisting the lure of acontextuality itself. We should refashion the First Amendment from the bottom up – from the distinct and varied structures, institutions, and social practices in which public discourse actually takes place, rather than hoping to find some concept or rule that will apply to all of them. We should take Holmes’s advice and think things, and let the words that describe and order them emerge organically rather than being imposed upon them.

Both Robert Post and Yochai Benkler, in their contributions to The Constitution in 2020, take something of this approach, although I would not expect them to agree with all (or anything) I say here. Post writes that we should begin our efforts to understand the First Amendment by focusing on the nature and role of public discourse, and asking how the First Amendment can strengthen and “sustain a healthy public sphere.” Benkler writes that liberty is not simply a matter of “the Constitution as law,” but consists also of “patterns of human communication and expression.” Human flourishing, he says, is “less affected by ‘the Constitution’ as a formal legal category than by the confluence of formal rules within the economic, social, and technical structures that make up the actual context within which human action, alone and with others, occurs.”

This, I believe, is a much better place to start reshaping the First Amendment, whether in 2020 or tomorrow. In my work, one place this starting-point leads us to is a deeper consideration of the role of what I call “First Amendment institutions.” (I follow Schauer in using this term, although not always to the same effect.) Public discourse often takes place in and through institutions. That includes most especially a range of traditional and fairly readily identifiable institutions that have grown up alongside our constitutional and social structure: libraries, universities, schools, religious associations, voluntary associations, the press, and others. It includes, too, emerging institutions, often more inchoate; the Internet, with its varied speech structures, is surely one of the most important of these. These institutions have their own, varied forms of discourse formation, their own norms and practices, their own forms of self-monitoring and self-regulation. 

Rather than impose some rule or principle that might attempt in vain to capture each of these institutions and their practices, we might instead proceed by thinking about these institutions more closely, asking how they act and self-regulate, and deferring substantially to them as they develop their own evolving sets of best practices. We might grant them substantial autonomy within their given spheres – not absolutely, and not because we suppose these institutions are perfect, but because we believe that they can do a better job as seedbeds of First Amendment doctrine and sites for public discourse than the courts could do by subjecting them to a set of ultimately unresponsive and incoherent acontextual rules. Just as Mark Tushnet has talked about the Constitution outside the courts, so we might think of a First Amendment outside the courts – one that is more institutionally diverse and responsive to institutional practices, one that emerges largely from the institutions in which public discourse actually takes place.

Much more, of course, needs to be worked out about this. It is not an approach that gives the main spotlight to either the individual or the state, as current First Amendment doctrine is wont to do, and both of these key players need their own place within First Amendment institutionalism – or a place entirely of their own. And it is certain that some of the potential implications of a thorough-going institutionalist approach might be off-putting to some, particularly those who think private institutions ought to be governed by generally applicable and acontextual laws, such as anti-discrimination laws. Given the number of institutions that are substantially self-regulating and have a long history of institutional practices, but that are nominally public, a First Amendment institutions approach might also raise questions about current state action doctrine – an issue about which Mark Tushnet raises his own questions in The Constitution in 2020. 

I do not, therefore, pretend to provide a complete road-map to the institutional First Amendment as it might look in 2020. But I want to urge us to think about it. I want to suggest that the very real questions and transition costs raised by this approach are not insurmountable. Moreover, those costs only look prohibitive if we believe that a coherent acontextual First Amendment is possible, and that it best serves our needs and contributes to the healthy development and maintenance of public discourse. After decades of laments for both the incoherence of First Amendment doctrine and the poverty and paucity of public discourse, however, I think there are fewer grounds than ever for believing that this is so. Public discourse emerges from institutions that in some cases pre-existed and in other cases grew up alongside the First Amendment, and those institutions and their practices are sticky and largely self-sustaining. They are not simply creatures of the First Amendment. But the First Amendment might develop in a stronger and more socially responsive way if it were their creature. The First Amendment itself is a mere formula of words that might make more sense if we began by thinking about the existence of things, including institutions, in the world.


Paul Horwitz is Associate Professor of Law at the University of Alabama School of Law. He will be appearing on Saturday's "Individual Rights Panel" with Elizabeth Emens (Columbia Law School, "Disability's Force"), Rich Garnett (Notre Dame Law School, "Religion and Division," "Religious Institutions, Pluralism, and the Infrastructure of Religious Freedom"), and Alice Ristroph (Seton Hall University School of Law, "Discrimination, Violence, and the Constitution").

Constitutional Right and Normative Frameworks: The Information Age

Lingering in the background of many of the articles appearing in The Constitution in 2020 is a debate about the rhetorical framing of rights and policy.  The debate is perhaps nowhere more evident than in the transition from Robert Post’s "A Progressive Perspective on Freedom of Speech" to Yochai Benkler’s "Information, Structures, and the Constitution of American Society." The authors of these two articles agree on the underlying goals of information policy: that it should encourage the public to participate in a democratic culture, foster a democratic society, and promote democratic legitimacy.  (Benkler assumes that we should “strive for a more democratic society, where individuals are ever more free and equal citizens”  (Benkler at 195). Post notes that “[t]he First Amendment safeguards the ability of persons to participate in the formation of public opinion so as to preserve the democratic legitimacy of our government”  (Post at 182). Both Benkler and Post train their arguments on similar countervailing interests (the commercial and the individual) and come to similar conclusions (generally favoring the individual).)

Despite their similar goals, Post and Benkler present markedly different ways of reaching those goals.  These different strategies create a tension, reflecting the authors’ divergent agendas. 

Post is trying to make room for good information policy within the normative framework of First Amendment jurisprudence.  His argument is about shaping information policy through a rejuvenated First Amendment: "A strong normative vision of a healthy public sphere will enable progressives to make visible important constitutional questions that are simply invisible when seen through the lens of received First Amendment doctrine." (Post at 185). At the same time, Post steers the First Amendment discussion away from the question of what we have a right to say to a question about how we ought to encourage people to speak in democratically conducive ways. 

Benkler, meanwhile, writes bluntly that information policy “must be concerned with the constitution of the U.S. society, rather than with the U.S. Constitution.”  (Benkler at 187).  He wants policy to incorporate perspectives that lie outside of constitutional jurisprudence.  Benkler (as well as Sunstein in his piece "The Minimalist Constitution") is trying to move the debate out from under the purview of the Constitution. 

It is important to keep these rhetorical frameworks in mind, since they have normative implications  Any constitutional conclusion will necessarily be more rigid and entrenched, for better or worse.  In the area of information policy specifically, this rigidity may be problematic when it comes to regulating an incredibly dynamic and unpredictable medium.  The same constitutional framework, however, provides a stronger normative foundation that appeals to both the jurisprudential and popular, in that an argument founded on constitutional principles appeals to a commonly held, more traditional set of values.  Post is right to seize on this aspect of the argument; progressives need to hang their hat on a normative perspective that has durability. 

At the same time, an overly fluid First Amendment doctrine will struggle to gain traction against a simpler normative framing (such as “all speech is free”).  Benkler, for his part, is skeptical of the boundaries that a constitutional argument imposes; he wants progressives to think as broadly as possible, to consider “the totality of the sources of freedom and constraint, equality and inequality, and to think of law in terms of its role in that broadly defined system of freedom and constraint.”  (Benkler at 195).  This added flexibility is particularly important within the information technology world where innovations are made daily and the wrong regulation could stifle individual creativity and contribution.

In outlining the differences between Post and Benkler’s respective views, I don’t intend to set-up a false choice, to suggest that we have to resolve this conundrum decisively in one direction or the other.  Rather, I think that Benkler and Post would agree that progressives will have to rely on both approaches. We will need a Post-like First Amendment argument to counter conservative appeals to more traditional First Amendment doctrine.  At the same time, we will want to push information policy further and further from under the Constitution, so we can tweak it as we learn what works best.  In other words, the successful implementation of a sound information policy will depend on harmonizing Benkler’s bid for fluidity and Post’s desire for constitutionally derived legitimacy.

2020 Readings -- Staff Picks

Readers interested in delving into other sources that comment on 2020’s main themes should regularly consult our 2020 Readings section, where we’ll be actively compiling (with your help, of course) works that will be useful for creating specially themed reading groups, crafting research projects, or creating your own personal reading list. For starters, the 2020 staff recommends the following:

Relevant 2020 Section: State, Nation, World
While progressives often envision a world of constitutional democracies, our efforts to bring such a world to fruition have often been disastrously unsuccessful. As we re-gather after Iraq and begin to devise a foreign policy more in line with our constitutional commitments, this insightful book warns of the dangers of cookie-cutter approaches to promoting democracy and economic development, while also providing useful and sophisticated ideas for moving forward. Chua's world-spanning study informs our understanding of the possibilities and limits of free-market democracy in the developing world. -L.P.N.
Relevant 2020 Sections: State, Nation, World; Citizenship and Community; Democracy and Civil Liberties
A rich and compelling commentary on how America is envisioned at home and abroad -- told through a journey in the months after September 11, 2001.  Purdy travels through Asia, Africa, and America and captures the stories of activists and ordinary people who express mixed resentment and admiration for America.  His reports are interwoven with intellectual voices from the past, including James Madison, Edmund Burke, and Adam Smith, to help explain America's legacy of freedoms and prejudices.  A lucid, provocative, and deeply inspiring companion for anyone who has come of age in a post-9/11 world and seeks to articulate a progressive vision for America. - V.K.
Yochai Benkler, THE WEALTH OF NETWORKS: HOW SOCIAL PRODUCTION TRANSFORMS MARKETS AND FREEDOM (Yale University Press, 2007) (available for free download here)
Relevant 2020 Sections: Democracy and Civil Liberties; Social Rights and Legislative Constitutionalism; State, Nation, World

An examination of networks, social production, and other recent developments in the creation and distribution of information.  Benkler analyzes the implications and possibilities of information policy through economic, social, and political lenses. He also asks us to consider what binds us together -- exploring concepts like "society" and "culture," in addition to more traditional tenets like "autonomy" and "democracy." Interestingly, when it comes to social production, Benkler practiced what he preaches: prior to its publication, The Wealth of Networks was available on a Wiki page where people were able to read chapters and contribute their comments, analysis, etc. – S.G.
Relevant 2020 Section: Democracy and Civil Liberties
An authentic account of big-city criminal justice. Feige, a former public defender with New York's Legal Aid Society and the Bronx Defenders, spins courtroom tales that ring true to anyone who knows the system and may shock those who don't. Indefensible is required reading for anyone who believes in due process of law. -- D.W.
Susan H. Bitensky, “Theoretical Foundations for a Right to Education Under the U.S. Constitution: A Beginning to the End of the National Education Crisis,” 86 NW. U. L. REV. 550 (1992)
Relevant 2020 Section: Social Rights and Legislative Constitutionalism
Bitensky’s article gives an overview of the American education crisis in the early nineties, analyzes current rights to education, and then explores a number of theories for a positive right to education under the United States Constitution.  Recommended as an overview of case law-based theories to an education right. – T.L.
Relevant 2020 Sections: Social Rights and Legislative Constitutionalism

  • William E. Forbath, "Caste, Class, and Equal Citizenship," 98 MICH. L. REV. 1 (1999)

            An expanded and detailed exploration of Forbath's argument for social citizenship. In an attempt to  remember and reconstitute a forgotten progressive past, Forbath traces the     history of the concept from the founding to the present, showing its deep American historical heritage.

  • Frank I. Michelman, "Democracy-Based Resistance to a Constitutional Right of Social Citizenship," 69 FORDHAM L. REV. 1893 (2001)

             In this brief comment, renowned constitutional theorist Frank Michelman lays out precise and illuminating criticisms of William Forbath's argument for social citizenship rights.  Michelman is just the right man for the job too, since Forbath's argument for social rights is a direct response to Michelman's theory of constitutional welfare rights.  Michelman has an intimate feel for the stakes in the debate and how small distinctions can have radically different implications.

  • William E. Forbath, "Not So Simple Justice: Frank Michelman on Social Rights, 1969-Present" (2004), 39 TULSA L. REV. 597

              William Forbath strikes back: another chapter in the long running debate between Michelman and Forbath on social citizenship rights.  Forbath traces Michelman's evolution on social citizenship rights and challenges his reader to imagine the Constitution in 2020 where each citizen has a right to health care, education, and work. – J.B.


Relevant 2020 Section: Protecting Religious Diversity

Preeminent British literary critic Terry Eagleton intervenes in the increasingly strident post-911 debate about the relationship between faith and reason in a democratic society. While everyone seems to know where evangelicals stand politically, the politics of the “New Atheism” have been less clear. In their rejection of the worship of the past, the New Atheists may appeal to those anxious about “atavistic” right-wingers and Republican wars on science. Eagleton troubles this allegiance between left politics and science when he denounces the New Atheism as an essentially right-wing phenomenon, and calls for the Left to distance itself from a technocratic style which he sees as typifying the elite political and cultural consensus. – J.K.

William Galston’s “Two Concepts of Liberalism,” 105 ETHICS 516 – 34 (1995)
Relevant 2020 Section: Protecting Religious Diversity

Liberals have often assumed the compatibility of important goals such as protecting diversity and promoting individual autonomy.  But what happens when these legitimate values conflict?  Using religious free exercise cases to frame his discussion, Galston argues that liberal philosophy and liberal constitutionalism have mistakenly prioritized liberal autonomy over social and religious diversity.  Galston mixes intellectual history and analytical philosophy to trace tensions within liberalism to two sources: the post-Reformation recognition of ongoing diversity and the Enlightenment’s emphasis on individual self-reflection.  Galston concludes that only a diversity-oriented liberalism can ensure the range of freedoms that liberalism requires. – K.T.

Relevant 2020 Sections: Interpreting Our Constitution, Democracy and Civil Liberties
An engrossing inside account of the Supreme Court’s jurisprudential trajectory over the last several decades.  Controversial since its debut in 1998, Lazarus’s behind-the-scenes look at the Court draws on his year clerking for Justice Blackmun; but it also contains extensive original research on the Court’s decision-making in touchstone areas of American law.  Focusing particularly on the death penalty, abortion, and racial preferences, Lazarus shows how the Court’s decisions are a product of precedent, politics, and personality.  Opinionated and compulsively readable, Closed Chambers lays bare how sustained ideological ferment can make its way, in big ways and small, inside the Marble Palace. –A.D.C.

Louis Menand, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA (Farrar, Straus, & Giroux, 2002)
Relevant 2020 Section: Interpreting Our Constitution
Critics have argued that pragmatism is America’s only home-grown philosophy. While that notion is debatable, pragmatism (in its various and changing forms) has long played a role in the development of American constitutional, social, and political thought. Now, with an Administration that openly declares itself “pragmatic,” pragmatism seems poised to make a comeback. How did we reach this point? Menand’s Pulitzer Prize-winning intellectual history offers readers an engaging overview of pragmatism’s development and spread, with a firm sense of story to match; at the same time, it suggests that pragmatism has, does, and should mean something more than being “non-ideological” or “practical-minded.” – T.W.

Laurence Tribe, THE INVISIBLE CONSTITUTION (Oxford University Press, 2008)
Relevant 2020 Section: Interpreting Our Constitution
Tribe's invaluable study of the power and influence of the unwritten, as well as written, Constitution. This book asks us to reimagine the Constitution and to see beyond the limits of originalism. Merging text and context, Tribe offers a sweeping analysis of what the Constitution means and how we ought to interpret it. -L.P.N.

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