an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.