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Faculty Research Working Paper Series
Frederick Schauer
Frank Stanton Professor of the First Amendment
Towards an Institutional First Amendment.
Schauer, Frederick. "Towards an Institutional First Amendment." KSG Faculty Research Working Paper Series RWP05-020, February 2005.
Abstract
First Amendment doctrine has traditionally been carved along conceptual rather than institutional lines. Legal categories like “public forum,” “content-neutral,” and “defamation” have dominated the doctrine, with the general understanding being that it was the nature of the speech or the nature of the restriction that determined protection, as opposed to the nature of some institution in which communication or its restriction took place. First Amendment doctrine has been reluctant to take much notice of pre-legal institutional categories, such as “press,” “universities,” and “libraries,” but allowing the increased use of such institutional realities in the design of First Amendment doctrine may well produce a First Amendment doctrine with far fewer anomalies and much greater utility.
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