First Amendment Institutions


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.

Paul Horwitz

Professor Horwitz is the Gordon Rosen Professor of Law at the University of Alabama School of Law where he teaches law and religion, constitutional law, and legal profession. In addition to having written and spoken widely on issues of constitutional law, Professor Horwitz is a member of the popular legal blog Prawfsblawg.

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  1. says

    “…the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government”, is forcefully worded.
    I would add, that the individual’s right to the free exercise of religion, freed from the court’s establishment clause ” restraints — of — the free exercise of religion “should be accorded…”, also. And it would fit just as neatly into the remaining sentences of you post.

  2. says

    John E. Jenkins is the author of The Tribute, Published by Xlibris, May 2013
    “An insightful and well-researched story! A dramatic courtroom setting brings the battle for the freedom of religion and prayer vividly to life. The author shines a bright light on the Supreme Court’s erroneous interpretation of the 14th Amendment and Thomas Jefferson’s writings, and how the high court’s decisions affect our most crucial freedoms, our daily lives, and the education of our children.”

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