Assessing the Constitutional Autonomy of Such Non-State Institutions as the Press and Academia

Abstract

Law and government are just one way in which American society is governed. As a large and complex society, America has many non-governmental social institutions that shape and influence the state of society, as well as the individuals living within society. This Article focuses on the institutions of the press and higher education. It analyzes the ways in which courts have interpreted the First Amendment in relation to those institutions. The Article explores how much constitutional autonomy has been given to the press and academia, as well as what special First Amendment rights or freedoms have been conferred on those institutions. It examines the justifications for why courts should, pursuant to the First Amendment, defer to the decision-making autonomy of these institutions. One such justification lies in the existence of professional standards and non-state regulatory systems that have developed within the professions of journalism and academia. Furthermore, many of the professional and institutional decisions made within the press and higher education require a particular kind of expertise that courts do not possess. Yet despite all these reasons for judicial deference, courts are quite undecided and confused about how much autonomy and how many rights to grant to the respective institutions.

Keywords: Non-state government, Journalism, Press autonomy, Academic freedom, First Amendment, Religious organizations, Confidentiality, Federalism, Non-state governance, Self-governing, Higher Education

JEL Classification: K1, K3, K10, K19, K30, K39