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?
A: I agree that one can be a formalist about institutional categories. This book is meant as the opening to a conversation, and I don’t purport to have all the answers here. I argue that a regard for institutions and institutional categories can still partake of a somewhat categorical or formalistic nature, and thus that one need not oppose institutionalism if one is a formalist, while acknowledging that one could take institutionalism in a more case-by-case, context-driven direction. My own position probably leans in favor of a categorical approach—with the important qualification that those categories will be drawn from what I call, loosely borrowing the terms from Habermas, the lifeworld rather than the law-world. The purely case-by-case approach is also limited, in my approach, by the definitions I provide for First Amendment institutions, ie. that they are well-established, important to public discourse, and capable of self-regulation. That provides an imperfect but real limitation on what can be considered a First Amendment institution.
Q: A related question. What are the dangers of overcontextualizing legal inquiry? A scholar whom you and I both know and respect is fond of quoting Clifford Geertz’s statement that the “defining feature of legal process is the skeletonization of fact so as to narrow moral issues to the point where determinate rules can be employed to decide them.” Do you agree with that statement, and how does First Amendment Institutionalism deal with the criticism of lawlessness?
A: Imperfectly! Again, I’m trying to start a conversation here, not settle it. In the penultimate chapter I try to take very seriously the possible criticisms of First Amendment institutionalism, although we can’t fully do that critical work until we’ve at least presented the picture of First Amendment institutionalism and its possible virtues first. I would say a couple things in response, though. Perhaps the most important is that we have to compare fairly: that is, in presenting concerns about institutionalism, we have to take the present approach as it is, not as it is ideally presented. So we have to ask whether skeletonization, whatever its ideal virtues, can go too far in practice and miss morally or factually relevant details, and whether, in the First Amendment, it buys some degree of defense against lawlessness at too high a cost. Most of all, we have to acknowledge that the current approach, although it prides itself on acontextuality, is not as acontextual as it supposes. Unless that is more fully acknowledged, we risk having an approach that is neither fish nor fowl and that inevitably will fall into incoherence or undermine itself.
Q: One example of the ways in which an institutional approach might improve our thinking relates to the issue of “low value speech” and cases like US v. Stevens. Is an institutional approach a way out of the difficulty that the Court no longer seems willing to pronounce on the difference between high and low value speech? The Chaplinsky distinction is largely defunct, as you note – low value speech is all the rage today. You attribute the reason to the drive toward acontextuality. But isn’t the real reason is that the Court is leery of making judgments about the quality of speech, in a way that it was not before. So the question is: does focusing on institutions and institutional competence solve the ‘who decides?’ problem for us – a problem that has been made manifest by the Court’s increasing unwillingness to pronounce on the difference between worthwhile speech and trash?
A: I would say that the increasing unwillingness to pronounce on the difference between high and low value speech ends up doing or reflecting several things, at least potentially. It suggests that an ostensibly acontextual approach worked for so long because some kinds of contextual distinctions were smuggled in. It further suggests that if the lure of acontextuality grows strong, it can purport to eliminate those distinctions, and thus leave the courts without a useful analytical tool. In the absence of such a tool, courts will resort to drawing implicit distinctions that are not fully recognized in their legal tests—thus, again, leading to the potential for incoherence or unpredictability. (And, thus, undermining some of its own claims to generality and predictability.) And, to the extent that the law always inevitably does draw some distinctions, whether it says so or not, I would argue that it might be valuable for us to think about different distinctions—institutional ones, in particular. I would be leery of saying that my book solves any problems for us in a final sense, although I hope it helps illuminate those problems and presents alternative ways of viewing or addressing them. I do think that institutionalism helps focus our attention usefully on the “who decides” question, and that there are good reasons to think that First Amendment institutions may be more competent to take a larger part of the burden here than lawyers are inclined to suppose.
Q: Why should we be any more confident that judges are capable of telling us what the purpose of a library or a church is than telling us what high and low speech is? Even more than this – as your discussion of the American Library Association case suggests – the Court probably does not have adequate tools to assess well what the function of a library is. Or take a university. Your approach would tell a court: defer to the university’s choices when it is acting like a university. When it isn’t, don’t. But how will a court know when it is acting like a university? Why should we think that a court would have this expertise? Ultimately, you are basically asking for great deference.
A: The institutional approach does indeed raise important line-drawing questions, including questions about how well the courts can draw those lines. But, again, we should be aware that courts already do some of this. I doubt we will get a better approach if courts do so implicitly rather than being open about it. I also think that although there are genuine concerns here, they are not as grave as critics might suppose, and that the fact that the institutions I single out are fairly well-recognized and established, that recognizing some of these institutions is almost second nature to us as a matter of social intuition, should allay some of those concerns. Moreover, to the extent that courts adopt a somewhat reflexive or experimental approach, there should be mechanisms for some feedback and improvement. Finally, let us not assume that these questions are more difficult than the line-drawing questions the courts already engage in under the current approach.
Q: Do religious institutions present both special challenges and special advantages for your approach. In your previous work, you have emphasized the idea of “sphere sovereignty,” drawing on the work of the neo-Calvinist Abraham Kuyper and contemporary scholars like Nicholas Wolterstorff to argue for a more substantial sort of independence or autonomy for the institutions of civil society. How are churches paradigms of your position, and how might they present special difficulties for your approach?
A: I have indeed drawn on the concept of sphere sovereignty in talking about religious institutions as First Amendment institutions—and been criticized for it, as in the (excellent) recent work of Micah Schwartzman and Richard Schragger, who argue in effect that since the state still ultimately makes the final decisions on a number of matters involving institutional (or individual) religious freedom, calling churches “sovereign” is overreaching. I have a mixed response to this criticism. I think Schwartzman and Schragger make a fair point, and offer a useful caution about using language that may prove imperfect or overpowering. At the same time, I hope I am careful in my book to suggest that while the language of sovereignty or quasi-sovereignty may be too much, it is also usefully evocative of a broader idea: that our social infrastructure, and particularly the infrastructure of public discourse, is made up of a number of institutions. The state is one of those institutions, and it is crucial, but it is still only one of those elements. The state may often have the final word on legal questions involving institutionalism—a point that more thorough-going believers in sphere sovereignty, like Kuyper, acknowledged. But the language of separate spheres reminds us that those other institutions have an important function of their own, and a considerable store of history, expertise, and capacity for self-regulation; the state ought to recognize this, and make deference, and the treatment of those institutions as partners in the task of preserving and enhancing public discourse, an important part of its approach to these institutions. That general idea applies to churches, but it also applies to other First Amendment institutions as well—unsurprisingly, because, like churches, many of these other institutions were born and grew up before or in concert with the modern liberal state itself.
Q: It might be good to ask some questions about a few more specific applications. In no particular order: how does an institutionalist approach handle (a) the ministerial exception which has recently been established by the Supreme Court; (b) cases like Christian Legal Society v. Martinez or Boy Scouts of America v. Dale, involving associational rights; (c) applications to the “new media,” including blogs; and (d) claims challenging affirmative action plans of universities, whether public or private? If you might explain the differences between an institutionalist approach and the conventional view of these issues, that might be especially useful.
A: I appreciate that you put your question in terms of approach rather than outcome. Obviously, just as those taking a conventional approach might disagree about particular outcomes, so might those taking an institutionalist approach. But the approach, I think, would be broadly similar for institutionalists, or “First Amendment institutionalists.” It would begin less with some of the typical doctrinal questions and more with a categorical question: Is this a case involving the kinds of institutions that have a well-recognized infrastructural role in public discourse, and of the kind that are capable of meaningful self-regulation? If so, is the conduct in question something that goes to the core of that institution’s function or mission? If it is, is it within the “margin of appreciation” that we might accord to such an institution, keeping in mind the value of institutional pluralism and retaining some respect for broad constitutional limits? If so, there would be a strong case for institutional autonomy.