Paths of Legitimacy: A Sociology of the First Amendment Examining Legal Change at the Boundary Between State and Society

What political influences shape the outcomes of First Amendment lawsuits? What are the juridical effects of civil liberties litigation? What institutional forces shape individual rights of expression and dignity–and collective rights to challenge political authority? Contributing to the law and society tradition, and taking a Durkheimian perspective, informed by critical theory and Bourdieu, this study assesses the judicial management of liberty. The analysis develops a sociology of the First Amendment, tracing the political influences and institutional logics that shape judicial decisions and, conversely, the influence of First Amendment law on institutional logics and behavior in other spheres. The term paths of legitimacy is used to designate institutional associations in the public sphere by which disputes are resolved into rules of law by court and rules of law are converted into norms of practice. The project is organized by three liberties of the First Amendment–religion, speech, and assembly–and a range of case-based methods: discursive explanation; neoinstitutionalism and field theory; and legal geography. In the first two parts of the study, it is shown that the juridical field is sometimes influenced by political codes, such as civil religion, a form of nationalism that governs the display of religious symbols in public; and, conversely, that legal categories influence the realm of civil liberties, for instance, media ethics, an area considered beyond regulation. In the third part, on the freedom of assembly and protest policing, competing hypotheses of the ‘negotiated management’ of demonstrations and the political regulation of territory are examined. It is found that certain regulations of assembly are better explained by the global city thesis, urban differentiation, and political economy of place, than by negotiated management or state-offered legitimations–security needs after 9/11 and riot prevention. As the police turn toward zero tolerance, so do the courts in regulating the ‘time, place, and manner’ of protest. Data examined are judicial opinions, institutional histories, and legitimation claims regarding the regulation of liberty, including the use of mass arrests and free speech zones during the presidential national conventions. Future avenues include examining paths of legitimacy in other areas of law.