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Monday, July 02, 2012

Symposium: "Post's Republic and the First Amendment"

The new symposium issue of the Washington Law Review, "The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment," has been posted on that journal's web site. Its subject is Robert Post's recent book Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, but it ranges quite widely. The participants include Ron Collins and David Skover, Judge Thomas Ambro, Bruce Johnson, and several permanent or occasional Prawfs contributors, including Steve Vladeck, Joseph Blocher, and me. My piece, which is also available on SSRN, is titled "The First Amendment's Epistemological Problem." It's a solid symposium and I was pleased and grateful to be a part of it.

Two notes about my piece. First, I think those interested in the recent Stolen Valor Act case will find it a worthwhile read. I'm normally neither especially prescient nor especially interested in either predicting what the Court will do or trailing along after it, but in this case the paper, which has a discussion of the Alvarez case, more or less coincidentally does a fair job of discussing the case and tracking some of what actually happened in the event.

Second, I must point readers to Post's own response to the symposium papers, titled "Understanding the First Amendment." It advances Post's general argument that doctrine alone is an inadequate place from within which to understand the First Amendment, that we must look to its purposes, and that in his view the First Amendment "expresses our constitutional commitment to achieving the 'social end' of democratic legitimation." Post is (fairly!) skeptical of my contribution, and of the institutional approach to the First Amendment that I outline at the end of the paper he writes that it is "so casual that it is difficult to follow."

Again, I think that is a fair concern. I hope that my forthcoming book, First Amendment Institutions, does a more complete job of setting out the institutional approach. Even so, I do think that approach leaves a number of questions about it in place, which I have tried either to answer or at least to acknowledge in the book. I hope the book and article contribute to the First Amendment conversation, but they certainly do not settle it, and I acknowledge Post's criticism. As a self-proclaimed constitutional tragedian, I was somewhat pleased by one of Post's descriptions of my paper's approach, which was not especially intended but apparently worked its way into the warp and woof of the paper: that it "advances a melancholy narrative of declension." How romantic! 

 

Posted by Paul Horwitz on July 2, 2012 at 08:56 AM in Paul Horwitz | Permalink

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Comments

Paul - any chance of a preview of the table of contents of your book?

Posted by: Sally | Jul 2, 2012 10:39:28 AM

This is not the final table of contents; I believe some of the titles have changed slightly. But here is an earlier version:


Introduction
PART ONE: FROM ACONTEXTUALITY TO INSTITUTIONALISM
Chapter One: The Conventional First Amendment
Chapter Two: The Lures and Snares of Acontextuality
Chapter Three: Taking the Institutional Turn
Chapter Four: Institutions and Institutionalism
PART TWO: FIRST AMENDMENT INSTITUTIONS IN PRACTICE
Chapter Five: Where Ideas Begin: Universities and Schools
Chapter Six: Where Information is Gathered: The Press, Old and New
Chapter Seven: Where Souls Are Saved: Churches
Chapter Eight: Where Ideas Reside: Libraries
Chapter Nine: Where Ideas Meet: Associations
Chapter Ten: The Borderlands of Institutionalism
PART THREE: PROBLEMS AND PROSPECTS
Chapter Eleven: Critiques of First Amendment Institutionalism
Chapter Twelve: Beyond the Institutional Turn

Posted by: Paul Horwitz | Jul 2, 2012 10:43:27 AM

Many thanks - I am really looking forward to reading this! Its relevant for a project I am working on right now, I wish it were already out.

Posted by: Sally | Jul 2, 2012 11:02:41 AM

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