Institutions in Context

Abstract

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Keywords: First Amendment, association, institutions, churches, universities, public-private