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In Grutter v. Bollinger, the Supreme Court noted that universities "occupy a special niche" in the First Amendment, and suggested that they are entitled to a substantial degree of institutional autonomy. This Article evaluates the First Amendment implications of this ruling. It explores three possible First Amendment readings of Grutter. First, Grutter may be viewed as a charter of institutional autonomy for universities. That reading carries a variety of implications, not all of which may be equally pleasing to Grutter's supporters. Second, Grutter may be read as advancing a substantive view of academic freedom based on its value to democratic deliberation. This ruling carries significant implications too, but it is hard to square with the larger body of First Amendment jurisprudence or with the concept of professional academic freedom itself. A third reading of Grutter's First Amendment carries more profound and attractive implications: it suggests the Court may be willing to abandon its preference for neutral rules over social facts in First Amendment jurisprudence, and to take seriously the role of "First Amendment institutions."

Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches' immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can't account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Universities, the press, libraries, churches, and various other institutions and associations are a fundamental part of the infrastructure of public discourse. Rather than subject them to ill-fitting, top-down rules and legal categories, courts should make them partners in shaping public discourse and First Amendment law, giving these institutions substantial autonomy to regulate their own affairs. Self-regulation and public criticism should be the key restraints on these institutions, not judicial fiat. Horwitz suggests that this approach would help the law enhance the contribution of our "First Amendment institutions" to social and political life. It would also move us toward a conception of the state as a participating member of our social framework, rather than a reigning and often overbearing sovereign. First Amendment Institutions offers a new vantage point from which to evaluate ongoing debates over topics ranging from campaign finance reform to campus hate speech and affirmative action in higher education. This book promises to promote--and provoke--important new discussions about the shape and future of the First Amendment

Over the past several decades, the Supreme Court has repeatedly taken the position that the primary – albeit not necessarily the only – reason why the First Amendment protects freedom of speech is to advance democratic self-governance. Moreover, there is also a broad consensus among First Amendment scholars supporting this view. In this essay, I will argue that this position, while surely correct insofar as it goes, is also radically incomplete. The Court's ruminations about the purpose of the Free Speech Clause fail to answer three overlapping questions. First, what is the relevance of the fact the Free Speech Clause does not stand alone, but rather is accompanied by other, equally important provisions? Second, how exactly does the Free Speech Clause, in combination with those other provisions, advance self-governance? And third, what role does the First Amendment as a whole envision for citizens in a democracy? These are important questions, requiring careful consideration that heretofore they have not received. The problem starts with the Supreme Court. One noteworthy feature of the Supreme Court's modern First Amendment jurisprudence is that it is not truly a First Amendment jurisprudence at all; rather, it is series of decisions interpreting the Religions Clauses and the Free Speech Clause. The rest of the First Amendment – the Press, Assembly, and Petition Clauses – might as well not exist. The Press Clause has been entirely subsumed by the Free Speech Clause. The Assembly Clause has not been cited in over thirty years. And the Petition Clause's relevance has been limited to the peripheral issue of access to courts. Even the nontextual right of association, which has not been entirely abandoned, has been made subservient to free speech, even though historically the right clearly derived from the Assembly Clause. The topic of this essay, then, is those five rights – speech, press, association, assembly, and petition – what I call the Democratic First Amendment. I will argue that the Democratic First Amendment, in toto, is best read to adopt a particular vision of citizenship, one associated with the Democratic Republican philosophy of Thomas Jefferson and his allies. Citizens, on this view, are meant to be active in a myriad ways, to engage with and even challenge their elected representatives, and to develop and communicate their values and opinions jointly, through assemblies and associations. It stands in sharp contrast to the passive form of citizenship, limited to biennial voting, favored by Jefferson's Federalist adversaries. Each of the rights of the Democratic First Amendment advance this vision of citizenship, both individually, and in combination. The First Amendment, in short, is not just democratic, it is also kaleidoscopic.