I had the pleasure and good fortune of sitting down with my good friend, Paul Horwitz (Alabama), a couple of weeks ago to talk with him a little about his superb new book, First Amendment Institutions (2013), under the auspices of a Federalist Society program that considers interesting and important new books. I will post the podcast of that interview when it is ready. But Paul also generously agreed to answer some written questions about the book, which ranges over all manner of First Amendment subjects, including, of course law and religion, for our ‘Conversations’ feature here at CLR Forum.
Q: The book, as its title indicates, is concerned with examining First Amendment disputes from an institutional point of view. You define institutions as organizations comprised of individuals bound together by some common purpose to achieve certain objectives. Why are institutions particularly important phenomena to study when it comes to the First Amendment? After all, when one thinks of personal expression or religious practice, one does not think immediately of institutions. Indeed, the paradigmatic case of speech or religious exercise is, for many, not about institutional or organizational rights but about individual rights.
A: I don’t think they’re uniquely important phenomena to study when it comes to the First Amendment. But I absolutely believe that they’re important phenomena to study, for at least three reasons. 1) A good deal more individual speech is formed or influenced by or within those institutions than the paradigm case may acknowledge. 2) Much important speech or activity takes place within those institutions. 3) These institutions often play an important structural role in public discourse.
Q: One of the major methodological issues that you raise – applicable both to the First Amendment and, you suggest, to all of law – is the law’s tendency toward acontexualism. You say, for example, that law is indifferent to real world context and is instead only interest in analysis according to concepts of its own making. Judges think about the cases that come before them in distinctively legal categories. Could you say more about this and how it pertains specifically to the sorts of issues that you tackle in FAI? More than this, can you explain why it is an inapt way to think about such cases?
A: Of course, there are lots of reasons why it is not a bad thing for judges to think acontextuality. Most of them involve what we think of as rule of law values, while others have to do with reasons of the particular institutional competences of the judiciary. That said, like any reasoning device or habit of mind, acontextuality can end up obscuring or missing important facts, contexts, and details. The point of acontextuality, in part, is to think only about morally relevant differences or similarities between things; but too acontextual a view can end up missing some of those morally relevant distinctions, especially where First Amendment institutions are concerned.
Q: A different question about acontextuality. Sometimes it seems that what you describe as the snare of acontextuality is just as much a debate about whether facts or doctrine should rule as it is a fight about which facts are the (morally) salient ones. For example, in your discussion of Arkansas Educational Television Comm’n v. Forbes, you say that the 8th Circuit got hung up in trying to slot the commission as a public entity, and so it did not see that it was simply exercising its journalistic discretion like a private broadcaster might. But one might recharacterize what the court did as valuing certain types of facts (the issue of the commission’s private status) MORE than other sorts of factors. Even though the Supreme Court reversed, isn’t this really a fight about which facts are relevant, more than a fight about whether facts or legal categories matter.
A: This is a fair pushback, I think. But I suppose I would say that cases like Forbes were more about finding what the court considered legal categories than about considering facts or context as such. Certainly, however, there is a relationship between legal categories and morally relevant facts. The question is whether the fixation on legal categories can end up failing to see other kinds of relevant categories.
Q: A question about the relationship of institutionalism and acontextualism. Can one be a formalist about institutional categories? It seems that Professor Fred Schauer’s approach, which is important for your own, espouses something like this position. Is there a necessary connection between a focus on institutions and a contextual method?