Justice Black’s “absolutist” reading of the First Amendment, while celebrated, is not consistent with the actual text of the First Amendment.
The next Liberty Law Talk is with Paul Horwitz on his new book, First Amendment Institutions. Horwitz challenges the dominant legal perspective on free speech in American law, which focuses on speaker and state. Instead of this acontextual approach, Horwitz poses that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. Horwitz would include many state institutions in this category. Thus, the law, in regulating or permitting speech, must be guided by the shape and contour of these institutions and their meaning to civil society. When this is done the legal results will seem surprising but more in tune with how citizens actually live as neighbors, students, members of religious bodies, volunteers, etc.