Abstract
First Amendment doctrine is caught between two competing impulses. On the one hand, courts and scholars face what one might call the lure of acontextuality. They seek a set of rules by which First Amendment law can be understood as a purely, formally legal phenomenon, untainted by the brute contingencies of the actual world. On the other hand, their efforts to construct acontextual legal doctrine are regularly disturbed by particular facts and contexts that fit poorly into existing doctrine. This tension between acontextual doctrine and factual variation has led to an increasing sense that First Amendment doctrine, in attempting to be pure and responsive at the same time, has become incoherent.
This Article argues that one solution to this dilemma is to openly acknowledge, and make room in First Amendment doctrine for, an understanding of the impor¬tance of various “First Amendment institutions”—institutions that play a significant role in contributing to public discourse, and that are both institutionally distinct and largely self- regulating according to a set of internally generated norms, practices, and traditions. Under an institutional approach, these entities would enjoy substantial autonomy to make decisions according to their own best sense of their missions—as universities, the press, religious associations, libraries, and so on.
Universities are one especially strong example of a First Amendment institution. In myriad ways, they play a special role in contributing to the broader world of social discourse that we value under the First Amendment. Moreover, they are institutionally distinct, bound by disciplinary constraints and governed by a host of norms and practices that substitute for external regulatory forces while still protecting fundamental speech values. Legal doctrine should recognize the special role played by universities under the First Amendment by largely deferring to these institutions and permitting them to govern themselves according to their own sense of academic mission, without government interference.
