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Major Questions Avoidance and Anti-Avoidance

October 2025October 2025Daniel J. Hemel*

In recent years, the Supreme Court has articulated a new “major questions” doctrine that prescribes a heightened standard of judicial scrutiny for regulations that address questions of vast economic and political significance. This jurisprudential innovation incentivizes—indeed, practically invites—strategically minded agencies to engage in “major questions avoidance”: to modify their regulatory approaches in order to skirt the major questions doctrine’s consequences. This Article is the first to name the phenomenon of major questions avoidance and to develop a taxonomy of avoidance tactics. It identifies four broad categories of major questions avoidance: “slicing” a single rule into a series of smaller rules; “lumping” together regulations under different statutory authorities to achieve a common, far-reaching objective; “glossing” over a major rule in technocratic language that downplays its economic and political significance; and “bypassing” the rulemaking process via guidance documents, administrative adjudications, and enforcement actions. Agencies appear to be deploying various major questions avoidance tactics already—openly in some cases and subtly in others. Although each of these avoidance tactics is costly to pursue, agencies are likely to engage in major questions avoidance—at least some of the time—as long as the major questions doctrine remains a salient feature of the administrative law landscape.

The nascent phenomenon of major questions avoidance presents both normative and jurisprudential puzzles. Different normative theories of administrative state legitimacy lead to contrasting conclusions regarding the desirability of major questions avoidance. If major questions avoidance is a problem, courts could—in theory—try to solve it by developing new doctrines of “major questions anti-avoidance.” Yet these anti-avoidance doctrines will face their own set of logical and logistical challenges—challenges that underscore the limits of judicial power in the cat-and-mouse game between courts and strategically minded agencies. Ultimately, a clear conceptual mapping of major questions avoidance and anti-avoidance can shed new light not only on the major questions doctrine itself but also on the justifications for, constraints on, and adaptability of the modern administrative state.

Introduction

One of the first lessons that students learn in law school is the concept of “question size elasticity.” Law school instructors rarely (if ever) use the term “question size elasticity,” but they almost inevitably illustrate the concept starting on Day One. For example, when teaching Vosburg v. Putney,¹ the first case in many torts casebooks,² professors often divide the central question—whether intent to harm should be a required element of the tort of battery—into a series of sub-questions (for example, whether intent to harm should be a required element when the alleged battery occurs in a touch football game, or on a crowded subway, or—as in Vosburg—in a seventh-grade classroom).³ Going in the opposite direction, professors often show how a seemingly self-contained doctrinal question such as the question presented in Vosburg implicates much larger questions about the structure of society (for example, how to mediate between conflicting interests in economic efficiency and bodily autonomy). By the end of their 3L year, students may not remember the particulars of the cases that they read as 1Ls, but if they were paying even a modicum of attention, they will have learned how to slice a big question into lots of littler ones and how to transform a superficially small question into a much more expansive inquiry.

The concept of question size elasticity, applicable in many legal contexts,⁴ takes on particular relevance in the context of the “major questions” doctrine, possibly the most consequential new doctrine to emerge in U.S. administrative law so far this century.⁵ The doctrine—which prescribes a heightened standard of judicial scrutiny for agency rules that implicate questions of particular economic and political significance—played a central role in four blockbuster Supreme Court cases during the Biden presidency. These four decisions—in which the Court overturned a nearly nationwide eviction moratorium,⁶ struck down a COVID-19 vaccine mandate for more than 80 million U.S. workers,⁷ stripped the Environmental Protection Agency of authority to carry out its Clean Power Plan,⁸ and blocked the Department of Education from forgiving $430 billion in federal student debt⁹—affect broad swaths of the American population and American life.¹⁰ The doctrine continues to rear its head in dozens of lower court cases and is almost certain to return to the Supreme Court soon, likely leading to the invalidation of additional agency actions.¹¹

When applied to the major questions doctrine, the concept of question size elasticity generates a number of, well, major questions. First, as a predictive matter: if a major question can be split into a series of minor questions, will agencies seek to avoid the doctrine’s consequences by slicing what would otherwise be “major” rules into smaller bits and pieces? We might call this slicing method—along with other tactics to evade the major question doctrine’s reach—“major questions avoidance.” Second, as a normative matter: if some agencies do engage in major questions avoidance at least some of the time, should we, as citizens, applaud those agencies’ avoidance tactics? Put another way, is major questions avoidance a salutary phenomenon—either as a desirable “workaround”¹² to circumvent an otherwise undesirable doctrine or as exactly the sort of agency behavior that the major questions doctrine is supposed to incentivize? Or, to the contrary, is major questions avoidance a pernicious administrative tactic that agencies ought to eschew for the public good? And third, as a jurisprudential matter: to the extent that major questions avoidance is undesirable, how—if at all—should courts police the practice? Should courts construct a doctrine of major questions anti-avoidance in administrative law, just as courts have—for example—developed anti-avoidance doctrines to defend the integrity of federal tax law? And if so, what shape might a doctrine of major questions anti-avoidance take?

Rigorously thinking through the relationship between major questions avoidance and anti-avoidance can provide fresh perspectives on the major questions doctrine itself—and, more broadly, about the relationship between the judiciary and the administrative state. According to one view, well expressed by the legal scholar Blake Emerson, the Supreme Court’s invocation of the major questions doctrine “is not legal interpretation at all, but rather an exercise of raw political power.”¹³ In a similar vein, Josh Chafetz characterizes the major questions doctrine as a central element of what he calls “the new judicial power grab.”¹⁴ This Article—though agnostic about the desirability of the doctrine¹⁵—suggests another possible slant on the doctrine’s power implications. When we consider potential agency responses to the major questions doctrine—along with the enormous difficulties that courts will face in policing those workarounds—our takeaway may be that the doctrine, if a judicial power grab, is one with surprisingly infirm grip. In other words, the major questions doctrine—though cited by critics as a signal example of creeping “juristocracy”¹⁶—may, at the end of the day, reveal as much about judicial power’s limits as about its reach.

Part I of this Article provides a brief overview of the major questions doctrine and defines the concept of major questions avoidance. Part II considers whether, when, and why agencies may (or may not) choose to engage in major questions avoidance. Part III evaluates major questions avoidance from a normative perspective, showing how four different theories of the administrative state’s legitimacy lead to very different conclusions regarding major questions avoidance. Part IV looks forward to the next move in the chess game between agencies and courts, asking whether and how courts can construct a doctrine of major questions anti-avoidance. Along the way, the analysis highlights the difficulties that even an ideologically motivated judiciary will face if it seeks to prevent administrative agencies from resolving questions of vast economic and political significance.

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

For years, a popular parlor game among administrative law scholars involved counting the number of Chevron steps. As formulated by Justice Stevens in the 1984 case that gave the Chevron doctrine its name, judicial review of agency statutory interpretation is a two-step process: is the statute ambiguous (Step One) and, if so, has the agency adopted a “permissible construction of the statute” (Step Two)?¹⁷ Thomas Merrill and Kristin Hickman later argued that in practice, an additional step precedes Steps One and Two—Chevron “Step Zero”—at which courts determine whether an agency’s statutory interpretation is even eligible for Chevron deference.¹⁸ William Jordan interpreted the Supreme Court’s decision in United States v. Mead Corp.¹⁹ as “erect[ing] a new four step test to replace what we once knew as the Chevron two step.”²⁰ Matthew Stephenson and Adrian Vermeule responded with an article provocatively titled: “Chevron Has Only One Step.”²¹ Aaron Nielson and I argued that courts have created a half-step between Steps One and Two—what we called “Chevron Step One-and-a-Half.”²² Judges got in on the Chevron step-counting exercise, too.²³ Much fun was had by all.

With the Chevron doctrine now dead²⁴—or at least, “mostly dead”²⁵—counting the versions of the major questions doctrine is the newest administrative law numbers game. Cass Sunstein has argued that there are actually two major questions doctrines.²⁶ Jody Freeman and Matthew Stephenson count three different iterations.²⁷ Louis Capozzi writes that after West Virginia v. EPA, the 2022 Clean Power Plan case, “[t]here is one version of the major questions doctrine” still standing.²⁸

In all of its iterations, the major questions doctrine applies more searching judicial review to “agency decisions of vast ‘economic and political significance.’ ”²⁹ The various versions of the major questions doctrine differ in what that more searching review entails. In one version, the “majorness” of an agency’s assertion of statutory authority is a factor weighing against that reading.³⁰ This version of the major questions doctrine evokes Justice Scalia’s statement that Congress “does not . . . hide elephants in mouseholes”³¹—that an interpretation of a statute is less plausible if it ascribes extraordinary consequences to “vague terms or ancillary provisions.”³² In a second version, the majorness of an agency decision was a reason for courts to deny Chevron deference and interpret the relevant statute de novo. This version³³—which was on clearest display in the Supreme Court’s 2015 King v. Burwell decision³⁴—faces an uncertain future in a post-Chevron world.³⁵ In a third version, majorness is a reason to reject an agency’s interpretation of a statute unless Congress has issued a “clear statement” authorizing the agency’s assertion of power.³⁶ Freeman and Stephenson describe this third, “most aggressive” version of the major questions doctrine as a “novel judicial innovation” that had not been embraced by the Supreme Court until West Virginia v. EPA in 2022.³⁷

All of these versions require courts to somehow distinguish major questions from minor ones. None of the Supreme Court’s cases give concrete guidance on the ingredients of majorness, though they do provide potentially instructive examples. In cases where it has found a question to be major, the Court has cited—among other factors—the population of people affected,³⁸ the amount of money at stake,³⁹ the rule’s geographic reach,⁴⁰ and the number of sectors that could be affected by the agency’s interpretation.⁴¹ Other factors cited by the Court in major questions cases include whether the

rule finds precedent in past agency practice⁴² and whether the rule lies within the agency’s “sphere of expertise.”⁴³

The emphasis in major questions cases on the scope of the challenged regulation raises a possibility that scholarship has only begun to probe: if the majorness of an agency interpretation depends, in part, on the number of people, industries, or regions affected by the relevant rule or by the rule’s dollar-denominated costs, can an agency duck the major questions doctrine by slicing a larger rule into smaller bits and pieces?⁴⁴ Although the Court has never stipulated a specific population threshold, dollar threshold, or other numerical criterion for majorness, its major questions cases so far indicate—and common sense would suggest as well—that smaller-in-scope rules are less major than larger rules. And in the major questions doctrine era, rules that do not implicate the major questions doctrine would seem to have a better chance of surviving judicial scrutiny than rules that do.

B. Major Questions Avoidance

Just as the major questions doctrine comes in multiple flavors, major questions avoidance does too. Broadly, “major questions avoidance” refers to any tactic by which an agency changes the form or substance of its regulations in order to avoid the application of the major questions doctrine while achieving similar—though not necessarily identical—results. We can divide the broad category of major questions avoidance into at least four subcategories: “slicing,” “lumping,”⁴⁵ “glossing,” and “bypassing.” This Section considers each in turn.

“Slicing”

“Slicing” refers to a type of major questions avoidance in which an agency divides a larger rule into several smaller ones. For example, when the Centers for Disease Control and Prevention (“CDC”) restricted evictions during the COVID-19 crisis, the agency engaged in a form of temporal slicing: it issued a series of time-limited eviction prohibitions with durations of one,⁴⁶ two,⁴⁷ three,⁴⁸ and four⁴⁹ months. It was only after the fifth iteration of the CDC’s moratorium that the Supreme Court struck down the agency’s action, stating that “the sheer scope of the CDC’s claimed authority” required a clear authorization from Congress.⁵⁰

Time is not the only dimension along which agencies might “slice.” Agencies also might slice geographically. For example, instead of issuing a single rule for the entire country, the CDC could have promulgated a series of geographically limited, temporally overlapping moratoria with a combined effect approaching—if not equaling—a nationwide rule.⁵¹ Alternatively, agencies might slice by industry. For example, the Occupational Safety and Health Administration—instead of issuing a vaccination and testing rule for nearly all private employers with at least one hundred employees⁵²—could have issued a series of industry-specific rules that, in the aggregate, reach most or all sectors of the economy. The Environmental Protection Agency (“EPA”) arguably engaged in a form of industry slicing in early 2024 when it split its greenhouse gas emissions limits for existing coal-fired and natural gas-fired power plants into two rules—proceeding immediately with the rule for existing coal plants while stating that it would delay the rule for existing gas plants for at least several more months.⁵³

Slicing can theoretically result in total or partial avoidance of the major questions doctrine. Imagine, for example, that an agency wishes to apply a single rule, R, to twenty-six industries labeled A through Z. Total avoidance would occur if the agency issues twenty-six identical versions of rule R, each for a single industry, and all pursuant to the same statutory authority. Partial avoidance could occur if the agency modifies the rule for each industry such that rule R_a applies to industry A, R_b applies to industry B, and so on, all the way through R_z for industry Z, where all of these industry-specific rules are substantively similar but none are carbon copies of each other. Partial avoidance also might occur if the agency applies rule R to some subset of industries—perhaps to A, C, and E but not B, D, and F—with the upshot that a large slice but not all of the economy is covered by R. Thus, partial avoidance allows an agency to achieve much of—though not all of—what it would have sought to achieve in the absence of the major questions doctrine.

Concededly, the slicing subcategory is blurry around the edges. At what point does an agency’s response to the major questions doctrine cease to be “avoidance via slicing” and simply become a downsizing of the relevant rule? For example, if an agency wishes to impose rule R on industries A through Z but—fearing the major questions doctrine—settles on applying rule R to industry A alone, then the agency has not “avoided” the major questions doctrine at all; the agency has been thwarted. There is no clear line between A and Z at which frustration turns into partial avoidance. In this respect, major questions avoidance is as fuzzy as the majorness element of the major questions doctrine itself.

Even though slicing—at least when it results in partial avoidance—may be difficult to distinguish from frustration, slicing still can be a useful concept. For our purposes, “slicing” occurs when an agency issues a series of narrower rules pursuant to the same statutory authority. As we shall see, this feature—multiple rules pursuant to the same authority—serves to distinguish slicing from its closest cousin: “lumping.” The import of the distinction between slicing and lumping—though it may seem pedantic at this juncture—will become clearer when we consider potential judicial countertactics in Part IV.

“Lumping”

“Lumping” refers to a type of major questions avoidance in which an agency promulgates multiple rules pursuant to different statutory authorities to reproduce the effect of a single rule that, if it had been issued on its own, would or could have implicated the major questions doctrine. In other words, the agency “lumps” together several different regulations under different statutory delegations to achieve a common policy goal that—if pursued in a single rule under a single statutory authority—would have risen to the level of majorness. Lumping, as we will see, is a strategy that agencies undoubtedly pursued to circumvent the major questions doctrine under the Biden administration. Whether it will continue under the second Trump administration is—as of this writing in early 2025—not yet clear, as all except the most obvious cases of lumping will be very difficult to detect.

The clearest example of lumping from the Biden years is the Department of Education’s response to the Supreme Court decision to block the cancellation of $430 billion in student loan debt.⁵⁴ In its first stab at large-scale debt cancellation—the effort thwarted by the Court’s 2023 decision—the department relied on language in the Higher Education Relief Opportunities for Students Act of 2003 (“HEROES Act”) authorizing the Secretary of Education to “waive or modify” the provisions of several federal student loan programs in order to protect recipients from the financial consequences of a “national emergency.”⁵⁵ The Department of Education argued that the COVID-19 pandemic—undoubtedly a national emergency—justified the invocation of its HEROES Act authority. Invoking the major questions doctrine, the Court held that “[h]owever broad the meaning of ‘waive or modify,’ that language cannot authorize the kind of exhaustive rewriting of the statute that has taken place here.”⁵⁶

Thwarted in its effort to use the Department of Education’s “waive or modify” authority under the HEROES Act, the Biden administration vowed to find other statutory means of relieving student debt.⁵⁷ Just eleven months after the Supreme Court’s ruling, the administration announced that without relying on the HEROES Act, it had successfully canceled $167 billion in student debt for 4.75 million borrowers through a series of smaller rules under different statutory authorities.⁵⁸ Furthermore, the administration averred, there were still additional loan forgiveness measures to come. “President Biden will not stop fighting to cancel more student debt for as many Americans as possible,” the White House declared.⁵⁹ (Some of those measures were subsequently blocked by the Eighth Circuit.)⁶⁰

The Biden administration’s response to the Court’s Clean Power Plan decision offers a somewhat less overt example of major questions avoidance. Promulgated under President Obama and then rescinded during President Trump’s first term, the Clean Power Plan leveraged the EPA’s authority under section 111 of the Clean Air Act to set emissions standards at the level achievable through the “best system of emission reduction” that has been satisfactorily demonstrated.⁶¹ The EPA interpreted that language to authorize it to prescribe “generation shifting”: the nation’s electricity grids would be required to replace high-emitting coal plants with increased electricity generation from natural gas plants and renewable sources such as wind and solar.⁶² The “best system,” in other words, involved taking coal plants out of commission and substituting cleaner energy. The Court in West Virginia v. EPA rejected that reading of the statute: “As a matter of ‘definitional possibilities,’ generation shifting can be described as a ‘system,’ ” Chief Justice Roberts wrote for the Court, but “a vague statutory grant is not close to the sort of clear authorization required by our precedents” for a rule as “major” as the EPA’s.⁶³

In the wake of the West Virginia decision, the Biden administration—which had never actually tried to reinstate the Obama administration’s Clean Power Plan—pursued a series of coal-related rulemakings that did not rely on its predecessor’s contentious reading of section 111 as allowing “generation shifting.” These efforts culminated in April 2024 when the EPA Administrator announced a “suite of final rules” to reduce coal power plant emissions.⁶⁴ One of these rules, mentioned above in the context of slicing,⁶⁵ requires existing coal power plants to install carbon capture and storage systems—a more traditional interpretation of the “best system” language in section 111 than the Clean Power Plan.⁶⁶ A second rule, promulgated under section 112 of the Clean Air Act rather than section 111, sets new limits on emissions of mercury and other air toxics from coal facilities.⁶⁷ A third rule relies on the EPA’s authority under an entirely different statute—the Clean Water Act—to impose more stringent restrictions on water discharges from coal plants.⁶⁸ “Taken together,” observed a New York Times news analysis, “the regulations could deliver a death blow in the United States to coal.”⁶⁹ Put another way, the suite of regulations seeks to accomplish the same ultimate goal that the Clean Power Plan pursued: to force a shift away from coal and toward cleaner energy sources across the U.S. electric grid.⁷⁰

One factor that distinguishes the coal case from the student loan case is that in the student loan case, we know that the Department of Education adopted its lumping strategy in response to the major questions doctrine. We know that because the Department of Education tried to implement its student debt cancellation plan pursuant to the HEROES Act and then shifted to other statutory authorities only after the Supreme Court blocked the HEROES Act effort on major questions grounds. In the coal case, by contrast, we do not know whether, in the absence of the West Virginia decision, the Biden administration EPA would have updated its predecessor’s Clean Power Plan—adopting the same reading of section 111 as authorizing generation shifting—or whether in the first instance the Biden EPA would have promulgated a potpourri of rules under both the Clean Air Act and the Clean Water Act. What we can say is that when the major questions doctrine foreclosed one possible regulatory approach to coal, the Biden administration chose another.

As examples of lumping, the series of student debt cancellations and coal-focused EPA rules are arguably more alike than different. What makes them alike—and different from many other potential cases of lumping—is that they came after, not in anticipation of, a court ruling that blocked an alternate regulatory route on major questions grounds. In other cases, major questions avoidance via lumping may occur more subtly. One or more agencies may issue a series of rules in service of a common goal without first trying and failing to achieve the same objective through a larger rule pursuant to a single statutory authority. We might never know whether this series of rules reflects major questions avoidance because we cannot observe the counterfactual world without the major questions doctrine hanging overhead. Even the administration officials involved in the decision to pursue the series of rules might not be able to say definitively that the strategy reflects major questions avoidance: fear of the major questions doctrine may have been one among several factors favoring the more incremental approach, and no single policymaker may know for sure whether the major questions doctrine was outcome-determinative.

This last point regarding the difficulty of detecting lumping will become particularly significant to the analysis in Part IV, when we consider whether the courts can combat avoidance through a doctrine of major questions anti-avoidance. If major questions avoidance is difficult to detect, it also may be difficult to deter. Thus, while lumping may be a less obvious example of avoidance than slicing, the non-obviousness of lumping may turn out to be exactly what makes it such an effective avoidance strategy.

“Glossing”

Whereas slicing and lumping entail changes to the scope and substance of agency regulations, “glossing” affects rules only on the surface. Glossing occurs when agency officials or others within the administration describe a rule in terms tailored to downplay its majorness. Even before the Court’s quartet of major questions decisions starting in 2021, Blake Emerson observed that the major questions doctrine alters agencies’ rhetorical incentives. “Because the doctrine generally forbids agencies from making decisions of great economic and political significance,” Emerson wrote, “it encourages agencies to explain themselves in technocratic terms, even if significant questions of value are at issue.” Emerson added: “If agencies know that courts will decline to defer to them if they detect agency consideration of important questions of political value, they will invariably explain their interpretations of statutory ambiguities in a way that makes them appear purely technical.”⁷¹ They will, to use this Article’s terminology, “gloss.”

Although glossing is a potential response to the major questions doctrine, it may not be—as Emerson suggests—an “invariabl[e]” response. Jody Freeman and Matthew Stephenson agree with Emerson that “executive branch lawyers might well start advising agencies to make their rules seem smaller in scope, more incremental, and more technocratic, and suggesting that the President, agency ofﬁcials, and other supporters avoid talking about how these rules contribute to some larger policy agenda or help address some big national problem.”⁷² But Freeman and Stephenson add that “this advice goes against the grain, since most political appointees are eager to tout their regulatory accomplishments, and presidents want to demonstrate strong leadership by publicizing and claiming credit for what their agencies are doing.”⁷³ Whether the litigation-driven incentive to gloss will outweigh the political incentive to trumpet the majorness of a regulatory initiative may depend on—among other factors—the distance to the next election, the relative influence of an agency’s general counsel vis-à-vis other officials, and the career ambitions of the agency head who promulgates the relevant rule.

So far, we have seen some examples of glossing and some examples of administration officials issuing statements that defy the rhetorical incentives generated by the major questions doctrine. As a possible example of glossing, then-CDC Director Rochelle Walensky said on National Public Radio in August 2021—when announcing an additional two-month extension of the agency’s eviction moratorium—that the “new, tailored order” was focused specifically on “areas of highest transmission” that faced the “most public health challenges.”⁷⁴ In fact, the August 2021 moratorium—though slightly narrower in geographic scope than the previous nationwide eviction prohibition—still covered ninety percent of the U.S. population.⁷⁵ President Biden’s unbridled celebration of his administration’s student debt forgiveness efforts offers a contrary example of “anti-glossing”: an administration official—here, the highest-ranking administration official—explicitly emphasizing that an agency initiative represents an end–run around the major questions doctrine. “[T]he Supreme Court blocked us,” President Biden told an audience at a college in Wisconsin in May 2024, but “that didn’t stop us. . . . We continue to find alternative paths to reduce student debt payments . . . that are not challengeable.”⁷⁶ Republican Attorneys General from seven states did, indeed, seek to block those “alternative paths,” alleging that the Biden administration’s approach still violated the major questions doctrine.⁷⁷ And as noted, that challenge succeeded in delaying some—though not all—of the Biden administration’s student debt relief measures.⁷⁸

“Bypassing”

A fourth form of major questions anti-avoidance is “bypassing,” whereby an agency sidesteps the rulemaking process altogether by pursuing its objectives through guidance documents, administrative adjudications, or enforcement actions. I borrow the “bypass” label from Jennifer Nou, who applies it in a different context to refer to similar tactics—including guidance, adjudication, and enforcement—that agencies use to insulate themselves from review by the Office of Information and Regulatory Affairs within the White House Office of Management and Budget.⁷⁹ Here, the impetus to use guidance documents, adjudications, and enforcement actions is not to escape White House review but to reduce the probability that judicial review will result in invalidation under the major questions doctrine.

A possible example of bypassing is the Department of Health and Human Services’ response to the Supreme Court’s 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned fifty years of precedent and withdrew constitutional protections for induced abortion.⁸⁰ Following that ruling, the Department of Health and Human Services issued a guidance document stating that the federal Emergency Medical Treatment and Labor Act (“EMTALA”), which applies to virtually all hospitals in the United States, requires physicians at covered hospitals to perform abortions in cases where abortion is necessary to resolve an emergency medical condition.⁸¹ The guidance added that “[w]hen a state law prohibits abortion and does not include an exception for the life of the pregnant person—or draws the exception more narrowly than EMTALA’s emergency medical condition definition—that state law is preempted.”⁸² Unlike other interpretations of EMTALA that have taken the form of regulations,⁸³ the Department declined to initiate a rulemaking process with respect to its abortion interpretation.

Undeterred by the fact that the Department’s interpretation came in the form of a guidance document rather than a rule, the Texas Attorney General—along with two groups of pro-life physicians—challenged the interpretation in federal district court, arguing among other points that the Department’s guidance ran headlong into the major questions doctrine because it resolved an “issue of vast policy and political significance” without clear authorization from Congress.⁸⁴ The Department responded that unlike the rules struck down by courts in earlier major questions cases, the EMTALA guidance was “not final agency action subject to judicial review” because it merely interpreted the statute and did not determine the rights or obligations of any party.⁸⁵ Both the federal district court and the Fifth Circuit rejected the Department’s finality argument, concluding that the guidance document reflected a new policy with concrete legal consequences that had all the indicia of final agency action.⁸⁶ In compliance with the district court injunction, the Department is not enforcing its EMTALA guidance in the state of Texas or against members of the two pro-life physicians’ groups while it seeks Supreme Court review, though it is continuing to enforce the guidance throughout the rest of the country.⁸⁷

Time will tell whether bypass via guidance document can succeed in other circumstances. As Ronald Levin observes, case law regarding the rule/guidance distinction is in a state of “general disarray.”⁸⁸ We will return in Section II.C to the questions of when and whether bypass via guidance may be a viable legal strategy. Importantly, though, guidance is not the only means of effectuating bypass: agencies also can seek to skirt the major questions doctrine by pursuing their policy goals through enforcement actions.⁸⁹

One arguable example of bypass via enforcement is the Securities and Exchange Commission’s ongoing effort to police the cryptocurrency industry. The Commission has argued in a series of enforcement actions that certain cryptocurrency offerings are “securities” subject to the registration requirements of the Securities Act of 1933. Some commentators have argued that the Commission’s assertion of jurisdiction over the cryptocurrency industry violates the major questions doctrine because “the cryptocurrency market has vast economic and political significance” and the Commission “has not clearly been empowered by Congress to regulate that market.”⁹⁰ The cryptocurrency exchange Coinbase road-tested this argument in federal district court in the Southern District of New York, where Judge Katherine Polk Failla swatted it away. “Simply put, the cryptocurrency industry cannot compare with those other industries the Supreme Court has found to trigger the major questions doctrine,” Judge Failla wrote.⁹¹ Stymied in the Southern District of New York, cryptocurrency firms have recently filed suits in the Northern and Western Districts of Texas to challenge the Commission’s interpretation of the term “security.”⁹²

Whereas Judge Failla rejected Coinbase’s major questions argument on grounds specific to cryptocurrency and the structure of the securities laws, Todd Phillips and Beau Baumann have argued that the major questions doctrine should never apply to enforcement actions “when courts, not agencies, interpret statutes in the first instance.”⁹³ Phillips and Baumann acknowledge that a categorical exception from the major questions doctrine for agency enforcement actions in federal court would incentivize agencies to bypass the rulemaking process altogether—another instance of scholarship anticipating major questions avoidance, though the authors do not use that term.⁹⁴ Nonetheless, they argue, an enforcement action is “less major” than a legislative rule “because it does not sweep in an entire industry,”⁹⁵ and enforcement actions brought in federal court should lie outside the major questions doctrine’s “domain.”⁹⁶

If courts take up Phillips and Baumann’s suggestion, then bypass via enforcement is likely to become a frequent means of major questions avoidance, at least for agencies such as the Securities and Exchange Commission with authority to bring judicial enforcement actions on their own.⁹⁷ Even if courts do not carve out a categorical exception for enforcement actions, bypass via enforcement may become attractive to agencies seeking to reduce—though not eliminate—the risk of a major questions setback. But as we will see in the next part, the incentives for major questions avoidance—via bypass or via slicing, lumping, or glossing—sometimes can come into conflict with considerations of administrative efficiency, litigation strategy, and political advantage. Major questions avoidance will be an enticing option for agencies in some circumstances, but not in all.

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

On first glance, major questions avoidance may seem like it brings obvious benefits to an administration or agency seeking to advance a regulatory agenda, at least when a rule might otherwise run aground on the major question doctrine’s shoals. As a general matter, the stricter standard of scrutiny associated with the major questions doctrine—whether in the form of the elephants-in-the-mouseholes canon or the denial of Chevron deference or West Virginia v. EPA’s clear statement requirement—reduces a rule’s survival probability. As a result, major questions avoidance will typically bring a benefit—a lower chance of judicial reversal—that agency and administration officials must weigh against the costs of avoidance.

But before leaving the benefits side of the ledger, it is important to acknowledge that agency and administration officials may not always see major questions avoidance as a benefit. First, sometimes an agency may promulgate a rule not because officials at the agency or the White House think the rule is a good idea but because they are responding to political pressure from outside groups. For example, when the CDC announced a two-month extension to its eviction moratorium in August 2021, the Washington Post described the action as “a move that bent to intense pressure from liberal House Democrats.”⁹⁸ According to the Post, President Biden did not want to extend the moratorium—evidently because he believed that it overstepped the constitutional bounds on executive power—but “House Democrats responded angrily” to the administration’s position.⁹⁹ One progressive Democrat, Representative Cori Bush of Missouri, staged what the New York Times described as “a round-the-clock sit-in on the steps of the United States Capitol that galvanized a full-on progressive revolt,” camping there for four days and nights “in rain, cold and brutal summer heat.”¹⁰⁰ From the perspective of Biden administration officials, issuing the moratorium and then having it be struck down by the Supreme Court may have been exactly the outcome that they needed to get progressives off their backs.

Second, even when administration and agency officials support the policy behind a rule, they still may see a political benefit in having the rule be struck down by the courts—and especially by the Supreme Court. For example, in the case of student debt forgiveness, President Biden arguably stood to gain electorally from his clash with the Court’s conservatives. In a March 2024 poll, seventy percent of young voters, seventy-two percent of Black voters, and sixty-eight percent of Hispanic voters said that student debt cancellation was an “important” issue to them in the upcoming election.¹⁰¹ White House officials might have anticipated that the student debt issue would give a boost to President Biden in his then-anticipated rematch with Donald Trump, whose three appointees to the Supreme Court supplied critical votes against the debt relief rule. (That electoral rematch—of course—never ultimately happened.)

Third and finally, a court decision invoking the major questions doctrine may be useful to an administration that seeks to entrench its policy position. For example, the Supreme Court’s major questions holding in King v. Burwell—in which the Court ruled that the availability of premium tax credits on federally established health insurance exchanges was a “question of deep ‘economic and political significance’ ” beyond the discretion of the Internal Revenue Service¹⁰²—prevented the Trump administration from denying credits to exchange participants after the end of the Obama presidency. Notably, the version of the major questions doctrine that was applied in King v. Burwell simply denied Chevron deference to the Internal Revenue Service’s interpretation of the Affordable Care Act; the agency still could—and indeed did—persuade the Court that its interpretation of the statute was correct as a matter of first principles.¹⁰³ Still, the King v. Burwell episode illustrates the more general point that when agencies are thinking about threats to their regulatory policies, they are thinking about threats not only from the judiciary but also from the next administration.¹⁰⁴ For policy entrenchment reasons—as well as for the above-mentioned reasons related to interest group pressure and electoral opportunity—a judicial determination of majorness may not always be a net-negative for the current occupants of the executive branch.

B. Costs

Notwithstanding the caveats in the previous Section, high-ranking officials at agencies and across the administration generally will not want the courts to classify their regulatory initiatives as implicating the major questions doctrine. Still, they must weigh the benefits of major questions avoidance against the considerable costs. This Section focuses on three

especially significant costs of major questions avoidance: administrative burdens, litigation risks, and political costs.

Administrative Burdens

Major questions avoidance—especially when it takes the form of slicing or lumping—is likely to increase the total burden on agency officials responsible for drafting and promulgating rules. As Jennifer Nou and Jed Stiglitz observe, agencies incur certain “fixed production costs” whenever they issue a new rule: they must establish a docket, write language that goes into every rule, complete internal paperwork, and—for non-independent agencies—secure sign-off from the Office of Information and Regulatory Affairs within the White House.¹⁰⁵ Nou and Stiglitz note that “[t]he presence of fixed production costs generally encourages regulatory bundling”—in other words, encourages agencies to cover more ground in a single rule rather than splitting one rule into several.¹⁰⁶ Slicing—along with the related phenomenon of lumping (in which agencies issue a series of rules under different statutory authorities)—both cut against the incentive to minimize regulatory production costs.

The extent to which regulatory production costs deter avoidance will vary across agencies and across time. First, some agencies are much more adept at issuing rules than others. For example, according to data from Regulations.gov, the EPA issued 384 rules in 2023, while the Equal Employment Opportunity Commission (“EEOC”) issued only three (one of which was a technical amendment to correct a typographical error in an earlier rule and one of which adjusted certain figures for inflation).¹⁰⁷ For an agency that churns out rules like they are cars coming off an assembly line, the costs of a few additional rulemakings may be manageable. For an agency like the EEOC that exercises its rulemaking muscles on rare occasions, the prospect of issuing several rules rather than a single rule may be more daunting.

Second, administrative burden of bypass via enforcement is likely to depend on whether an agency has independent litigation authority. Some agencies—such as the Securities and Exchange Commission and the Consumer Financial Protection Bureau—have authority to initiate litigation in federal court on their own.¹⁰⁸ Others—such as the Department of Health and Human Services—must rely on the Justice Department to bring enforcement actions in federal court.¹⁰⁹ As Kirti Datla and Ricky Revesz note, “the Environmental Protection Agency has independent litigation authority over only a few discrete violations of the Toxic Substances Control Act.”¹¹⁰ Otherwise, the EPA’s ability to enforce the environmental laws in federal court depends on the cooperation of Justice Department attorneys.

Even when Justice Department attorneys are ideologically aligned with an agency’s policy agenda, bypass via enforcement is likely to be more burdensome for agencies without independent litigation authority. Every substantive filing in a case will require coordination—and potentially negotiation—between agency officials and Justice Department counterparts. As a result, we might hypothesize that agencies with independent litigation authority will be more likely to pursue bypass via enforcement than agencies without. Returning to the EPA/EEOC comparison, the EPA may be more likely to pursue slicing or lumping as an avoidance tactic because it is quite adept at issuing rules but lacks independent litigation authority; the EEOC may be more likely to pursue bypass via enforcement because it lacks the EPA’s well-practiced rulemaking infrastructure, but possesses independent litigation authority at the district court and circuit court level.¹¹¹

Finally, the administrative burden of avoidance is likely to be more salient near the end of a presidential term. This is because administrative burden results not only in a costlier regulatory process but also a slower process. The need for speed is greatest in an administration’s final days: executive branch turnover on January 20 of every fourth or eighth year means that regulatory projects not completed before that date are likely to die if the next administration does not support the effort, leading to the familiar phenomenon of “midnight rulemaking.”¹¹² Even when the President hands the baton to a successor of the same party—something that has happened outside the context of resignation or death only once since World War II—rulemaking activity may accelerate at an administration’s end. According to one account, the Reagan administration rushed in its waning days to finalize regulations that were deemed “too hot to handle” during the 1988 presidential campaign, “hoping to minimize the divisive controversy George Bush might otherwise face” if those issues were resolved before the general election or after Bush’s inauguration.¹¹³ If time is of the essence—either because the next administration has different policy priorities or because the current administration wants to shield a politically aligned successor from blowback—then major questions avoidance via slicing, lumping, or bypassing will be less viable strategies.

Speed also matters at an earlier juncture in an administration’s final year because of the Congressional Review Act, which allows Congress to block a regulation from taking effect by enacting a joint resolution.¹¹⁴ If a rule is finalized within the last sixty Senate “session” days or sixty House “legislative” days before Congress adjourns, the next Congress will have an opportunity to block the rule—and, importantly, the joint resolution will be immune from a Senate filibuster.¹¹⁵ Because a House “legislative day” can span multiple calendar days—and because both the House and Senate may adjourn earlier or later than expected—the deadline for finalizing a rule in order to avoid fast-track review by the next Congress is variable. In an election year, it may fall anywhere from the spring to the late summer.¹¹⁶

Joint resolutions of disapproval under the Congressional Review Act are still subject to presidential veto, so absent a change in administration or an extremely unpopular rule that is opposed by a veto-proof supermajority of Congress, the Congressional Review Act does not pose a significant threat to agency action in most years. But in the last year of a presidential administration, agencies have strong incentives to finalize controversial rules early enough that the next Congress and the next President cannot use the Congressional Review Act to undo the agencies’ handiwork. Almost certainly for that reason, April 2024—which was thought to be the last month before Biden administration rules became subject to the fast-track disapproval procedure in the next Congress—was “the busiest month on record” for major regulations, with the Office of Information and Regulatory Affairs reviewing more than eight times as many economically significant final rules as in the typical month.¹¹⁷ One might describe this phenomenon as “8 p.m. rulemaking”—rather than “midnight rulemaking”—because it occurs roughly five-sixths of the way through a President’s term (just as 8 p.m. strikes five-sixths of the way through the day). As the 8 o’clock hour approaches, the efficiency drawbacks of slicing and lumping increase because delay raises the risk of reversal under the Congressional Review Act. In that timeframe, agencies must weigh the benefits of major questions avoidance against the benefits of Congressional Review Act avoidance.

Litigation Risks

So far, the analysis in this Part has proceeded under the guiding assumption that major questions avoidance raises the probability that a regulation will survive judicial review. That assumption is probably accurate most of the time—but not all of the time. In at least three scenarios, certain forms of major questions avoidance may increase an agency’s litigation risk.

First, when an agency slices a single rule into several smaller rules issued sequentially, it may expose itself to challenges asserting that the distinctions it has drawn (for example, among industries or among regions) are arbitrary and capricious. As the D.C. Circuit put it, “[t]he great principle that like cases must receive like treatment” is “black letter administrative law.”¹¹⁸ A regulatory scheme may fail in court both because it is “overinclusive” and “underinclusive.”¹¹⁹ The merits of any underinclusivity challenge to a sliced rule will depend on the details, but it would be an overgeneralization to say that smaller rules always fare better in court than larger ones.

Second, to the extent that an agency engages in avoidance via glossing, it may open itself to attack under the State Farm doctrine, according to which a rule may be set aside as arbitrary and capricious if the agency “entirely failed to consider an important aspect of the problem.”¹²⁰ As the D.C. Circuit has put it, administrative law’s “reasoned decision-making” standard “requir[es] the agency to focus on the values served by its decision.”¹²¹ Courts will—on occasion—strike down an agency rule because the agency explained itself in entirely technical or legalistic terms when its decision required a substantive value judgment.¹²² To be sure, courts typically grade agency explanations on a generous curve: an agency usually won’t have to say all that much to satisfy State Farm.¹²³ But an agency that engages in hyperaggressive glossing—denying or significantly downplaying the economic, political, or ethical stakes of its decision—may leave itself vulnerable on the State Farm flank even as it seeks to shield itself from the major questions doctrine.

Finally, when an agency pursues bypass via guidance document, it may reduce the risk that its pronouncement will be deemed a final agency action subject to judicial review but raise the risk that the guidance document will be deemed a “legislative rule” in disguise that ought to have gone through a notice-and-comment process. Many more regulatory initiatives have failed on notice-and-comment grounds than on major questions grounds: as Ronald Levin observes, “the question of whether a supposedly informal pronouncement of an administrative agency is actually a rule that should have been adopted through notice-and-comment procedure may well be the single most frequently litigated and important issue of rulemaking procedure before the federal courts today.”¹²⁴ Note that the notice-and-comment concern does not apply to avoidance via slicing and lumping provided that the sliced or lumped-together rules each go through notice and comment. But, returning to the regulatory-production-costs point above, the rigamarole of multiple notice-and-comment procedures—necessary to insulate sliced and lumped-together rules against litigation risk—further raises the administrative burden of avoidance.

Political Costs

Along with its administrative burdens and litigation risks, major questions avoidance potentially comes with significant political drawbacks. Presidents want credit from voters for their regulatory achievements. Agency heads with ambitions for higher office want the world to notice their accomplishments. These outcomes are more likely when agency actions generate media attention, and the media is much more likely to cover rules that are larger in scope. Thus, even when the major questions doctrine discourages agencies from issuing broad rules, political incentives may push in the opposite direction.

The political costs of major questions avoidance will vary across time, across agency, and across subject matter. Electoral incentives are likely to be most salient in the last year of an administration—roughly around the same time that the costs of regulatory delay reach their peak. Meanwhile, career incentives do not affect all agency heads equally. Although it is often said that “every senator looks in the mirror and sees a future president,”¹²⁵ the CDC Director may look in the mirror and see no one other than the CDC Director. For some agency heads without further political ambitions, staying out of the spotlight may be an added benefit of major questions avoidance. Moreover, in some cases, an administration may—for electoral reasons—want to minimize attention to a controversial rule. For example, Biden administration officials may have been happy to regulate coal through a series of smaller rules because coal regulation—though popular among environmentalists—carries electoral risks in the swing state of Pennsylvania, the third largest coal-producing state in the country.¹²⁶ In those instances, major questions avoidance and electoral politics may work hand in hand.

Finally, agencies and administration officials may be able to capture both the benefits of major questions avoidance and the political benefits of larger regulatory initiatives by emphasizing the combined effect of several smaller rules. President Biden’s “anti-glossing” approach to student debt forgiveness is arguably a case in point: by touting the combined effect of several different student loan relief initiatives, President Biden successfully vaulted his series of smaller debt cancellations onto the front page of the New York Times and into the national spotlight.¹²⁷ Still, a drawback of major questions avoidance is that even when the combined effects of multiple rules, guidance documents, administrative adjudications, or enforcement actions are far-reaching, the consequences will typically be more difficult to explain to the average voter than a single sweeping rule. Thus, the political cost of major questions avoidance may be not only that avoidance leads to less attention but also that it engenders lower comprehension.

Ultimately, whether the political costs of major questions avoidance outweigh the benefits depends on a question much larger than the major questions doctrine itself: what motivates regulators? Perhaps counterintuitively, major questions avoidance may be more likely if the “public interest” theory of regulation applies: if regulators are “benevolent . . . , trustworthy, disinterested, and public-spirited experts who produce rules that ensure general economic efficiency and maximum welfare for society.”¹²⁸ If agency and administration officials respond more strongly to personal or partisan motives, then the political costs of major questions avoidance may outweigh the benefits from those officials’ self-interested perspective. To be sure, this conclusion comes with caveats. Regulators motivated by private interests may embrace avoidance if—for example—they are responsive to inducements from sophisticated interest groups that will appreciate the combined effects of several sliced or lumped rules. And public-interested regulators may eschew avoidance if they conclude—perhaps after weighing the considerations laid out in the next part—that major questions avoidance has a corrosive effect on the legitimacy of the administrative state.

III. Major Questions Avoidance and the Legitimacy of the Administrative State

So far our analysis has been primarily positive and predictive: how—and how often—will agencies modify their regulatory strategies to avoid the major questions doctrine? This Part shifts into a normative gear, asking what the phenomenon of major questions avoidance means for the legitimacy of the modern administrative state. Following Richard Fallon’s tripartite classification of legitimacy claims into sociological, legal, and moral categories, I use the term “legitimacy” here in the moral sense: “legitimacy inheres in the moral justification, if any, for claims of authority asserted in the name of the law.”¹²⁹ As we shall see, different theories of administrative state legitimacy lead to different implications for major questions avoidance. This Part focuses on four prominent theories, which vary based on the source to which they ascribe the administrative state’s legitimacy: (1) presidential legitimacy, (2) legislative legitimacy, (3) expert legitimacy, and (4) participatory legitimacy.

A. Presidential Legitimacy

Probably the most prominent normative theory of the administrative state in American legal thought today locates the source of agency legitimacy in the presidency.¹³⁰ The leading exponent of the presidential legitimacy theory in the legal academy—before she became Solicitor General and then Associate Justice of the Supreme Court—was Professor and Dean Elena Kagan.¹³¹ As then-Professor Kagan observed in an enormously influential 2001 Harvard Law Review article, “Presidents . . . are the only governmental officials elected by a national constituency in votes focused on general, rather than local, policy issues.”¹³² Paraphrasing the earlier work of administrative law scholar Jerry Mashaw, Kagan wrote that bureaucratic action thus “turns out to have a democratic pedigree purer even than Congress’s in our system of government.”¹³³

Kagan’s arguments regarding the democratic bona fides of presidential administration are both backward-looking and forward-looking. From a backward-looking perspective, “a President has won a national election,” and “this election, exactly because it was national in scope, probably focused on broad policy questions, conveying at least some information to the public about the future President’s attitude toward regulation.”¹³⁴ But in Kagan’s view, the “more important point is prospective.” As she puts it:

[B]ecause the President has a national constituency, he is likely to consider, in setting the direction of administrative policy on an ongoing basis, the preferences of the general public, rather than merely parochial interests. . . . In his first term, the desire for reelection alone provides a reason to do so, including through the adoption of policies favored by a majority of the voting public. And even in his second term, a President retains strong incentives to consider carefully the public’s views as to all manner of issues—incentives here related to his ambition for achievement, and beyond that for a chosen successor or historical legacy.¹³⁵

This theory of “presidential legitimacy”—whereby the exercise of executive power derives its democratic justification from the relationship between the President and “the People”—also bears implications for the relationship between the President and the agencies. According to Kagan’s theory of presidential legitimacy, “enhanced presidential control of administration serves democratic norms.”¹³⁶ This conclusion counsels for a more robust presidential role in regulatory decision-making.¹³⁷ It also favors a forthright acknowledgement that agency decisions emanate from the President. In Kagan’s words, “[t]o the extent that presidential supervision of agencies remains hidden from public scrutiny, the President will have greater freedom to play to parochial interests.”¹³⁸ By contrast, “[i]t is when presidential control of administrative action is most visible that it most will reflect presidential reliance on and responsiveness to broad public sentiment.”¹³⁹

From a presidential legitimacy perspective, the major questions doctrine seems 180-degrees backwards. Agency decisions of vast economic and political significance are the most likely to involve—and to be perceived by the public as emanating from—the President. Yet as Jodi Short and Jed Shugerman observe, the Court’s decisions in its major questions cases all focus on the role of “unaccountable bureaucrats”—a phenomenon that the authors describe as “presidential erasure.”¹⁴⁰ As Short and Shugerman write, the President “actively supported” and “took public responsibility for” each of the policies at issue in the Court’s major questions cases, and each of these policies provoked “vigorous” national debates.¹⁴¹ Nonetheless, “despite the special national democratic character of presidential involvement in policies that have been struck down in MQD cases, the President is virtually invisible in these opinions.”¹⁴²

Indeed, from a presidential legitimacy perspective, it is arguably “minor questions,” not major ones, that ought to trigger the most stringent judicial scrutiny.¹⁴³ Regulations that address minor questions are the least likely to reach the President’s desk, least likely to generate media coverage, and least likely to swing votes in a general election. Those rules are probably the most likely to advance the private objectives of special interest groups rather than the greater good of the public at large. Yet under current doctrine, regulations that address minor questions escape the searching judicial review that applies to high-profile rules that already have been approved by the President and are likely to be vetted by voters.

Given that the major questions doctrine makes little sense from a presidential legitimacy perspective, one might think that adherents to the presidential legitimacy theory would embrace major questions avoidance. As Daniel Farber, Jonathan Gould, and Matthew Stephenson argue, “if a legal rule produces undesirable effects, a workaround will generally be a welcome corrective.”¹⁴⁴ Major questions avoidance offers a possible exception to this general rule. Sliced rules under the same statutory authority, smaller rules under different statutory authorities, guidance documents, administrative adjudications, and enforcement actions all come with the democratic disadvantages of “minor questions”: they are less likely to reach the presidential level and less likely to garner media and voter attention. As Freeman and Stephenson write, “[i]f agencies downplay the real reasons for their rules, segment actions to make them seem more innocuous, or try to portray significant policy changes as technocratic, it becomes more difficult for the public to know what the executive branch is doing (and why), and therefore harder to hold the President to account for it.”¹⁴⁵ Thus, while the major questions doctrine is undesirable from a presidential legitimacy perspective, major questions avoidance is also undesirable from a presidential legitimacy perspective. Indeed, major questions avoidance may be particularly pernicious because—in Freeman and Stephenson’s telling—it redounds to the advantage of “[s]ophisticated, well-organized interest groups,” who are “more likely than ordinary citizens to understand how a collection of seemingly technocratic, incremental regulations contribute to some larger policy agenda.”¹⁴⁶ For presidential legitimacy theorists who value presidential administration precisely because it makes agencies accountable to a national electorate, major questions avoidance may be a cure even worse than the disease.

B. Legislative Legitimacy

Whereas the presidential legitimacy account locates the justification for administrative power in the executive (in other words, Article II), the legislative legitimacy account shifts focus to Article I: Congress. Members of the House and—for the last century¹⁴⁷—the Senate are the only national officials who are elected directly by the people. Ordinary citizens face a much higher chance of having their concerns heard by their Congressmember or home-state Senators than by the President. And, of course, the Constitution assigns all lawmaking powers to Congress¹⁴⁸—a fact that matters more to formalists than to functionalists but still may matter to functionalists who see some value in achieving “fit” between the constitutional framework and the practical reality of the modern administrative state.

The major questions doctrine fares better from a legislative legitimacy perspective than from a presidential legitimacy perspective. Given the scope and complexity of a modern state, it would be impossible for the legislature to weigh in on every policy choice, but policy choices of vast economic and political significance should be made by officials who are accountable to voters through direct elections—or so the argument goes. Risk-averse lawmakers who are concerned about their own reelection may be tempted to pass the buck for controversial decisions to administrative agencies,¹⁴⁹ but the major questions doctrine prevents legislators from sloughing off responsibility for those choices. Seen in this light, the major questions doctrine reflects the not-altogether-unreasonable proposition that Congressmembers must not be allowed to escape responsibility for important and controversial questions of climate change, public health, student debt, and so on—or if Congressmembers do pass the buck, they should have to fess up to it.

But while the legislative legitimacy theory leads to greater sympathy toward the major questions doctrine, it also—like the presidential legitimacy theory—engenders antipathy toward major questions avoidance. Sliced rules, lumped-together rules, guidance documents, administrative adjudications, and enforcement actions are not only more likely to escape presidential attention but also more likely to evade legislative oversight. Congressional committee hearings are an important mechanism through which the legislature regulates the administrative state: when members of the House and Senate have questions about an agency’s policies or performance, they can summon agency officials to appear before committees and—if dissatisfied with the officials’ responses—can restrict or condition funding, hold up appointments, or potentially amend the relevant statutes.¹⁵⁰ But these accountability mechanisms are less likely to operate when incremental regulatory actions fly below Congress’s radar.

From a legislative legitimacy perspective, then, the relationship between the major questions doctrine and major questions avoidance conforms to the general relationship between first-order rules and workarounds identified by Farber et al.: when the first-order rule (here, the major questions doctrine) “tends to produce desirable effects,” then “a workaround will generally be undesirable.”¹⁵¹ In this case, though, the undesirability of the workaround also calls into question the wisdom of the first-order rule. Insofar as the major questions doctrine results in agencies effectuating their policies through incremental regulations, guidance documents, administrative adjudications, and enforcement actions that escape legislative oversight, the upshot may be that the House and Senate will exert even less influence over the questions of vast economic and political significance that—according to legislative legitimacy theorists—ought to remain within the province of Congress. Thus, for legislative legitimacy theorists who are sympathetic to the major questions doctrine ab initio, the possibility of major questions avoidance should lead to reconsideration—and perhaps revision—of that initial view.

C. Expert Legitimacy

A third normative theory of the administrative state—which emerges most clearly in the academic writing of former Supreme Court Justice Stephen Breyer¹⁵²—focuses on the role of expertise as a legitimating force. In Breyer’s view, neither the public nor Congress is well-suited to understand and respond to health and safety risks.¹⁵³ For Breyer, the only hope for effective risk regulation lies with an expert bureaucracy. As he put it in Breaking the Vicious Circle, his last book on administrative law before joining the Supreme Court:

A bureaucracy’s rationalizing tendencies match the need for consistency through system-building and prioritizing; a bureaucracy’s use of expertise matches the need for technically related regulatory improvement; a bureaucracy’s insulation matches the need for protection from the vicissitudes of public opinion based on a single substance or on a single issue; and a successful bureaucracy can begin to build public confidence in its systems, thereby making its results more authoritative.¹⁵⁴

According to this view, the justification for the administrative state’s claim to authority rests not only in the technical qualifications of individual bureaucrats but also in the institutional structure through which bureaucratic expertise is developed and deployed.

Some version of the major questions doctrine might be justifiable under an expert legitimacy account. Indeed, the doctrine’s name traces back to a line in a 1986 law review article by then-First Circuit Judge Breyer: “Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course of the statute’s daily administration.”¹⁵⁵ Judge Breyer made this point in the context of Chevron and congressional intent: a statutory ambiguity is less likely to reflect an implicit delegation to an agency when the relevant issue is major.¹⁵⁶ But the major questions doctrine arguably also fits within Breyer’s larger theory of expert legitimacy. If an issue is non-technical—if it implicates substantive value judgments with respect to which expert agencies enjoy no particular advantage—then the case for shifting authority from Congress to the bureaucracy is relatively weak. The major questions doctrine potentially serves to sort between the issues on which Congress can be trusted to channel public values and the issues that require depoliticized bureaucratic management.

An expert legitimacy version of the major questions doctrine might differ from the version adopted by the current Court. Rather than emphasizing the economic or political significance of an issue, the expert legitimacy version might focus on whether the relevant regulation implicates the agency’s experience and expertise. Framed this way, some of the Court’s major questions decisions might be better understood as what Jody Freeman has called “wrong agency” cases: cases in which the Court denies deference to an agency because the regulation at issue lies within a different agency’s bailiwick.¹⁵⁷ Moreover, adherents to the expert legitimacy account might conclude that some of the Court’s major questions cases were wrongly decided on the facts.¹⁵⁸ But the major questions doctrine is not as anathema

from an expert legitimacy perspective as it might be from a presidential legitimacy perspective.

What about major questions avoidance? The possibility that agencies might split their rules into smaller pieces that fly below the radar of the President and Congress is less disturbing from an expert legitimacy perspective than from a presidential or legislative legitimacy perspective. As Jody Freeman and Adrian Vermeule observe, the Court’s decision in Massachusetts v. EPA,¹⁵⁹ arguably the jurisprudential apogee of expert legitimacy theory, is motivated by a concern about White House meddling in agency scientific judgments.¹⁶⁰ For expert legitimacy theorists, keeping certain regulatory issues off the President’s desk is a desirable feature, not a bug, of major questions avoidance. So, too, with respect to Congress: “Congress is highly responsive to public opinion, as it ought to be,” Breyer wrote in Breaking the Vicious Circle.¹⁶¹ “This means, however, that if the public finds it difficult to order risk priorities, Congress is also likely to find it difficult.”¹⁶² At least for risk regulation decisions such as the choices related to cigarettes, climate change, and COVID-19 transmission at issue in some of the Court’s major questions cases, major questions avoidance—insofar as it also leads to avoidance of presidential and congressional oversight—is not an entirely unwelcome outcome.

From an expert legitimacy perspective, major questions avoidance may bring ancillary benefits beyond simply keeping certain issues away from the President and Congress. When an agency slices a broad rule R into a series of smaller rules R_a, R_b, R_c, and so on for industries A, B, C, and so forth, the agency may be more likely to leverage industry-specific expertise—from its own ranks or from the ranks of other agencies—in crafting each of the smaller rules. Drafting a regulation for a single industry focuses the bureaucratic apparatus on the particular characteristics of that industry—characteristics that might be ignored in an omnibus rulemaking. Moreover, if the agency proceeds sequentially—for example, promulgating rule R_a for industry A before it applies rule R_b to industry B—then the agency may gain on-the-ground knowledge from its experience with industry A that allows it to design a better rule for industry B. And by the time the agency reaches industry Z, cumulative knowledge from earlier efforts may allow the agency to craft a significantly superior regulatory regime.

This conclusion comes with qualifications. First, the types of rules to which an expert legitimacy theorist may wish to apply the major questions doctrine—nontechnical rules of vast economic and political significance—are not the same rules that they may wish to see sliced into a series of sub-rules. From an expert legitimacy perspective, major questions avoidance is most beneficial with respect to technical regulations that are likely to escape the major questions doctrine in the first place. And second, the benefits of slicing from an expert legitimacy perspective do not necessarily carry over to other forms of avoidance. For example, expert legitimacy theorists might not welcome bypass via enforcement if enforcement shifts influence toward generalist litigators in the agency’s enforcement division or at the Justice Department. In those instances, major questions avoidance—rather than empowering subject-matter experts within an agency—may relegate them to the regulatory sidelines.

D. Participatory Legitimacy

A fourth normative theory of the administrative state locates the legitimacy of agency authority in public participation. This theory of participatory legitimacy draws inspiration from the work of John Dewey, a prominent figure in early twentieth century pragmatist and progressive thought. In Dewey’s words:

No government by experts in which the masses do not have the chance to inform the experts as to their needs can be anything but an oligarchy managed in the interests of the few. And the enlightenment must proceed in ways which force the administrative specialists to take account of the needs.¹⁶³

Blake Emerson, the leading exponent of participatory legitimacy theory in the American legal academy today, has identified elements of Dewey’s vision across the modern administrative state. According to Emerson, the notice-and-comment process “institutionalizes the Progressive concern for public participation in agency policymaking.”¹⁶⁴ As Emerson continues, “Courts then police this process to ensure that agencies draw reasonable conclusions from the comments they receive, address all significant comments, and ensure that all major policy choices are sufficiently ventilated.”¹⁶⁵ The result is democratic legitimation of a different sort from what is contemplated by Kagan’s presidentialist account—a form of democratic legitimation that depends less on votes than on voice.

For Emerson, both the major questions doctrine and major questions avoidance are normatively problematic. “The problem with the [major questions] doctrine,” Emerson writes, is “that it discounts and short-circuits rational public deliberation between administrative officials and the public at large.”¹⁶⁶ The problem with major questions avoidance is even more acute. In particular, Emerson anticipates that the doctrine will lead agencies to gloss—to explain their decisions on questions of vast economic and political significance in highly technical terms. “This retreat into technocracy will further imperil democratic transparency,” according to Emerson, “because important value choices will be kept from public view, and dressed up in the supposedly neutral language of expertise.”¹⁶⁷

Participatory legitimacy theory—though it takes a dim view of glossing—may reach different normative conclusions regarding other avoidance strategies. Arguably, participatory legitimacy theorists should welcome slicing. From a participatory legitimacy perspective, smaller rules may be preferable to larger rules. While individuals have the formal opportunity to participate in the notice-and-comment process for all rules regardless of scope, any single individual’s voice is more likely to be heard in a smaller rulemaking than a larger rulemaking, since in the latter case, hundreds of thousands of other individual and organizational commenters are likely to drown out a lone voice. This participatory legitimacy argument for smaller rules runs parallel to the classic argument in the federalism literature for smaller jurisdictions: that “thicker forms of participation” such as contacting officials and attending civic meetings increase as jurisdictional size decreases.¹⁶⁸ On this account, the problem with major rules—like the problem with national governments—is that their scope is too broad, whether in subject-matter or geographic terms, to facilitate efficacious individual participation in their design.

Not all participatory legitimacy theorists are likely to be convinced by this argument, and this argument does not apply to all other forms of major questions avoidance. A possible participatory benefit of larger rules is that they are more likely to generate media coverage and debate, facilitating the “value-oriented process of public engagement” that, per Emerson, is key to participatory legitimation.¹⁶⁹ The benefit of greater opportunities for individual voice in the small-rule context must be weighed against the benefit of greater public attention for larger rules. Moreover, the tentative argument for slicing on participatory legitimacy grounds does not apply to bypass: guidance documents—if they do not go through notice-and-comment—as well as administrative adjudications and enforcement actions deprive the public of the participatory opportunities that notice-and-comment rulemaking allows. So, participatory legitimacy theory’s verdict on both the major questions doctrine and major questions avoidance appears to be mixed: a doctrine that incentivizes agencies to slice their larger rules into smaller pieces may yield some participatory benefits, but other responses to the major questions doctrine generate participatory costs. The justification for the first-order rule may thus depend on which workaround predominates.

***

Summing up so far: We have sought in this Part to answer a relatively narrow normative question: is major questions avoidance desirable? Attempting to answer that narrow question requires a broader normative theory of administrative state legitimacy. Different normative theories of administrative state legitimacy bear very different implications both for the major questions doctrine and for major questions avoidance. Moreover, thinking through the phenomenon of major questions avoidance from multiple normative perspectives yields fresh insights regarding the relationship between first-order rules and workarounds in public law.

The next (and final) Part shifts focus from the administrative state to the judicial branch: how should courts respond to major questions avoidance? For presidential legitimacy theorists, the answer is easy: the major questions doctrine should be eliminated, in which case we would not need to worry about major questions avoidance. Meanwhile, expert legitimacy theorists and participatory legitimacy theorists may not necessarily see major questions avoidance as a problem to be solved—at least when avoidance takes the form of slicing (and in a similar vein, lumping). But for legislative legitimacy theorists, major questions avoidance poses a genuine dilemma: avoidance has the potential to undermine the benefits that legislative legitimacy theorists ascribe to the major questions doctrine. Indeed, the major questions doctrine—to the extent that it incentivizes avoidance—may be counterproductive to legislative legitimacy theory’s larger goals. Yet, as we will see in the next part, crafting an effective judicial response to major questions avoidance will prove to be a Herculean—and perhaps Sisyphean—challenge.

IV. Major Questions Anti-Avoidance

Anti-avoidance rules abound in American law. For example, the Bank Secrecy Act’s anti-avoidance rule prohibits individuals from splitting larger cash transactions into smaller ones to evade the Act’s $10,000 reporting threshold—a practice colloquially known as “smurfing.”¹⁷⁰ Anti-avoidance rules in bankruptcy law such as the fraudulent conveyance and fraudulent transfer provisions prevent debtors from evading creditors’ efforts to enforce valid claims.¹⁷¹ Tax law—in particular—is replete with anti-avoidance rules, including the economic substance doctrine,¹⁷² the substance-over-form doctrine,¹⁷³ and the step transaction doctrine.¹⁷⁴

Courts typically apply anti-avoidance rules ex post—after all, the relevant avoidance actions have occurred. For example, under the step transaction doctrine, a court or the IRS will look retrospectively and wholistically at a series of completed steps and assess the federal tax consequences based “on a realistic view of the entire transaction.”¹⁷⁵ Theoretically, a major questions anti-avoidance rule could be applied ex post or ex ante. In the ex post version, the court would consider whether sequential regulatory actions, taken together, resolve a question of vast economic and political significance. In the ex ante version, the court would seek to intervene at the beginning of the sequence. As we shall see, both the ex ante and ex post versions lie within the bounds of imagination, but courts that seek to instantiate either strategy in the real world will encounter formidable challenges.

A. Ex Ante Anti-Avoidance

Ex ante anti-avoidance is easiest to conceptualize in the context of slicing. Imagine that an agency applies rule R_a to industry A and that the single-industry rule would not itself trigger the major questions doctrine. Now imagine that the same statutory theory that justifies the application of rule R_a to industry A also would authorize the application of R_b to industry B, R_c to industry C, and so on, all the way to industry Z, and that rules R_a through R_z would have a combined effect of vast economic or political significance. An ex ante version of major questions anti-avoidance would allow a regulated party in industry A to challenge rule R_a on major questions grounds, even though the sequence of rules might not cross the majorness threshold until much later down the line.

An ex ante version of major questions anti-avoidance would encounter serious difficulties in practice. First, the ex ante version would require courts to anticipate all—or at least many—of the possible regulations that follow logically from the statutory interpretation that justifies R_a. Only then could courts begin to evaluate whether these regulations, considered cumulatively, rise to the level of majorness. Many commentators have observed that this latter step—the determination of majorness—is itself an unmanageable inquiry.¹⁷⁶ As Ronald Levin writes, “criticisms of this sort should be taken with a grain of salt” because “[m]any administrative law doctrines implicate judgment calls,” but “[i]n this instance,” the manageability critique “is well founded.”¹⁷⁷ An ex ante major questions avoidance doctrine would be doubly difficult from a judicial manageability perspective—perhaps much more than doubly, because the first step (conjuring up regulations that do not yet exist) places a much heavier tax on the judicial imagination than determining whether an already-existing regulation implicates a major question. The difficulty is especially daunting when avoidance takes the form of lumping rather than splitting: judges will have to imagine not only the possible applications of a single statute but also possible similar uses of other statutes that the agency has not yet invoked.

To be sure, a court that is dead set on advancing a deregulatory agenda may be tempted to test out an ex ante anti-avoidance doctrine anyway. But judges—even deeply ideological judges—still usually assign some weight to other values, such as predictability and judicial economy. Even for judges with strong conservative or libertarian leanings, an unpredictable and unmanageable ex ante avoidance doctrine may prove to be a game not worth the candle.

Along with judges, regulated parties may shy away from an ex ante version of major questions anti-avoidance. Consider the dilemma facing a regulated party challenging the application of rule R_a to industry A. To prevail on an ex ante anti-avoidance theory, the challenger would have to make two showings: (1) that the same statutory interpretation that justifies the application of rule R_a to industry A also would justify the application of R_b to industry B, R_c to industry C, all the way through R_z for industry Z; and (2) that rules R_a through R_z rise to the level of majorness when assessed in the aggregate. If the challenger wins at the first step but not the second—if the court (1) agrees with the challenger that the agency’s authority to apply rule R_a to industry A also implies its power to promulgate similar rules for B through Z but (2) disagrees with the challenger’s claim that the resulting regulatory bundle would reach the majorness threshold—then the challenger will have blazed a path for much more extensive regulation in the future. And given how amorphous the majorness standard is,¹⁷⁸ litigants can rarely be confident at the outset of the first step that they will prevail if they reach step two.

Granted, a firm in industry A may not care about throwing its counterparts in industries B through Z under the bus. The calculus could change, though, if the firm is a multi-sector conglomerate with subsidiaries not only in industry A but also sprinkled across the rest of the alphabet. Likewise, a firm may be reluctant to press an ex ante avoidance argument if A, B, C, and so forth—instead of representing different industries—represent different products made by the same factory, different pollutants emitted by the same facility, or different trade practices of the same company. In those cases, winning a half-victory in an ex ante anti-avoidance case amounts to scoring on one’s own goal.

None of this is to say that litigants will never raise ex ante anti-avoidance arguments or that these arguments will never succeed. At least debatably, Utility Air Regulatory Group v. EPA presents a real-world example of ex ante anti-avoidance. In that case, the EPA argued that the Clean Air Act authorized it to regulate carbon dioxide and other greenhouse gas emissions from stationary sources that release 100,000 tons or more of carbon dioxide equivalent units each year.¹⁷⁹ The Supreme Court, in a majority opinion by Justice Scalia, observed that the same statutory theory would allow—indeed, would require—the EPA to regulate emissions from units that release just 100 to 250 tons of carbon dioxide equivalent units each year, which would sweep in “millions[] of small sources nationwide.”¹⁸⁰ The Court held that the more expansive rule would trigger the major questions doctrine even though the EPA had not yet (and probably never would) assert such far-reaching authority. “EPA’s interpretation . . . would bring about an enormous and transformative expansion in EPA’s regulatory authority without clear congressional authorization,” the Court stated.¹⁸¹ “We expect Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance.’ ”¹⁸²

Utility Air is an unusual case. There, the EPA explicitly acknowledged that its statutory interpretation would open the door to the regulation of millions more facilities.¹⁸³ In other words, the agency connected the dots from Rule R_a to R_z itself. Utility Air thus did not require litigants to make the highly risky move of arguing for a more expansive understanding of an agency’s authority, nor did it require courts to embark on an unguided imaginative journey into the land of regulatory hypotheticals. These unusual features of Utility Air help to account for the willingness of industry litigants and Justices to travel down the ex ante anti-avoidance path. In other cases, the difficulties of ex ante anti-avoidance from both a judicial-management and litigation-strategy perspective are likely to encourage a greater emphasis on the ex post alternative.¹⁸⁴

B. Ex Post Anti-Avoidance

Whereas ex ante anti-avoidance requires a court to anticipate what future regulations might follow from an agency’s interpretation of a statute, ex post anti-avoidance allows courts to adopt a wait-and-see approach. Consider again the example of an agency sequentially applying a series of rules (R_a, R_b, R_c, and so forth) to different industries. Ex post anti-avoidance would let a litigant challenge a later rule in the sequence (say, R_z) on the ground that rules R_a through R_z—in combination—trigger the major questions doctrine. Thus, ex post anti-avoidance averts two of the major difficulties facing ex ante anti-avoidance: (1) ex post anti-avoidance does not require litigants to argue for a more expansive understanding of agency authority, and (2) ex post anti-avoidance does not require courts to conjure up rules that do not yet exist.

For these reasons, major questions anti-avoidance—to the extent that it ever takes shape—is likelier to crystallize in ex post rather than ex ante form. Still, ex post anti-avoidance encounters difficulties of its own. The first is jurisdictional: even if a court concludes on a challenge to rule R_z that the combination of rules R_a through R_z trigger the major questions doctrine, regulated actors in industry A may not be party to the case involving Z. Moreover, the court’s anti-avoidance decision in the Z case may have uncertain implications for A, B, and C, as the agency may have additional area-specific rationales for its rules in those industries that require individualized adjudication. Thus, the class action mechanism may be a poor fit for ex post anti-avoidance cases,¹⁸⁵ requiring a flood of follow-on cases in order to wipe the regulatory slate clean.

Aside from the jurisdictional challenges (which may turn into docket management challenges if an ex post anti-avoidance decision for industry Z sets off a deluge of follow-on suits from regulated parties subject to earlier rules in the sequence), ex post anti-avoidance confronts courts with the challenge of determining which rules are sufficiently similar that they should be considered as part of the aggregate that is analyzed for majorness. Not all regulatory sequences will announce themselves as clearly as the alphabetical examples in this Article. And the aggregation challenge will prove particularly burdensome in the lumping context, where aggregation requires a comparison of regulations promulgated under different statutory authorities. Granted, courts make difficult determinations of similarity in other settings—ranging from anti-discrimination law to antitrust law—though, in many of those settings, courts struggle with the similarity inquiry.¹⁸⁶ What we can say with confidence is that while ex post avoidance may not be impossible, it will place new doctrinal-development demands on the judiciary.

Finally, the most significant challenge for ex post anti-avoidance is that it may come too late to change on-the-ground realities. Most of the Court’s major questions cases—including the COVID-19 vaccine mandate case,¹⁸⁷ the Clean Power Plan case,¹⁸⁸ and the student loan case¹⁸⁹—reached the Court in a pre-enforcement posture. Once a rule has gone into effect and parties have begun to comply—once vaccine doses have gone into arms or scrubbers have been installed on power plants—those regulatory consequences are difficult to undo. That was the rationale for the Court’s Abbott Labs doctrine favoring pre-enforcement review of regulatory action: if a court decision was to shield regulated parties from a rule’s consequences, the decision ought to come before parties “change[d] all their labels, advertisements, and promotional materials,” “destroy[ed] stocks,” and “invest[ed] heavily in . . . new supplies.”¹⁹⁰ With ex post anti-avoidance, by contrast, rule R_a might remain in force for industry A for several months or years before a court concludes in an industry Z case that the agency’s sequence of rules R_a through R_z trigger major questions scrutiny. Thus, even if courts can overcome the judicial manageability challenges of ex post anti-avoidance, agencies still will have opportunities to reshape entire industries before ex post anti-avoidance cuts off their regulatory efforts.

Conclusion

Major questions avoidance illustrates the concept of question size elasticity in both directions. Not only can a larger regulatory question be subdivided into several smaller ones, but the seemingly self-contained topic of major questions avoidance also inspires much larger theoretical and empirical inquiries that go to the heart and soul of the modern administrative state. Predicting the probability of major questions avoidance required us to delve deeply into the motives of agency officials. Evaluating the normative desirability of avoidance necessitated a broader theory of administrative state legitimacy. And playing out the chess match of anti-avoidance highlighted the limits of judicial power: when agencies respond strategically to new administrative law doctrines, courts will struggle to counter the agencies’ moves—especially when the clock is running and regulations that are in force only temporarily can have permanent practical effects.

With respect to all the major questions raised by major questions avoidance and anti-avoidance, our answers at this early stage are—and can be—only tentative. What already seems clear, though, is that careful and critical reflection on the empirical, normative, and jurisprudential dimensions of major questions avoidance and anti-avoidance can generate insights that travel far beyond the major question doctrine’s domain. Mapping and exploring the terrain of major questions avoidance and anti-avoidance can give us a clearer view of the theories that justify agency power and the extent to which that power can be constrained by the judiciary. In the end, major questions avoidance and anti-avoidance—whether or not they are desirable developments—have the virtue of offering us a new, richer, and more nuanced perspective on both the legitimacy and the adaptability of the modern administrative state.

98 S. Cal. L. Rev. 1497

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Daniel J. Hemel*

*Professor of Law, New York University School of Law. For helpful comments, the author thanks Beau Baumann, Blake Emerson, Barry Friedman, Jonathan Gould, Oren Tamir, and participants in workshops at the New York University School of Law and the University of Southern California Gould School of Law. Bhargav Tata provided excellent research assistance.

The Supervisory Power of State Supreme Courts

October 2025October 2025Adam B. Sopko*

State supreme courts are currently center stage as they face some of the most important issues of our time. But nearly all of the attention is focused on their ability to interpret state constitutions to provide rights guarantees that the U.S. Supreme Court has diminished or eliminated from the Federal Constitution. While important, judicial review is but one instance of a state high court’s authority. Their supervisory power—the primary source of judicial administrative authority—has served as a vital source of policymaking power to safeguard individual rights and enhance the public good. Supreme courts have relied on their supervisory power to reimagine state criminal justice systems, reduce homelessness, strengthen voting rights, expand protections for immigrants, and more. Despite its significance, this feature of state court practice has gone virtually unnoticed. As advocates increasingly look to state courts to address more and more of society’s complex and consequential issues, this distinctive aspect of their power is worth exploring.

This Article unpacks the supervisory power by mapping its sources, applications, and limits. The supervisory power has a basis in all fifty state constitutions and enables supreme courts to oversee their judiciary’s workload and operations. But as this Article shows, high courts are using this power beyond the humdrum of judicial administration to enhance substantive rights and remedies, facilitate their law development and agenda-setting capabilities, and mediate interbranch frictions. This Article’s core claim is that these more expansive applications of the supervisory power are generally defensible based on the evolution of state judiciaries and supreme courts’ unique roles in state governments. The twentieth century saw a dramatic reimagining of state high courts from inferior instruments for the other branches to powerful, coordinate members of the state policymaking apparatus. In addition to overseeing the judiciary’s operations, the supervisory power thus plays an important role in a high court’s ability to contribute to state governance.

This account of the supervisory power is broad but not unlimited. The Article highlights the supervisory power’s internal and external limits and sketches its metes and bounds to help frame its future applications. The Article then considers this judicial practice within larger debates on judicial policymaking and state constitutional structure. It engages with critiques of a more active judicial role and lawmaking powers. It explains that the key institutional assumptions behind such assessments do not map so easily onto the unique structure of state judiciaries. Stepping back, the Article encourages a broader but more nuanced view of state judicial power and the function of state high courts that wield it.

Introduction

In recent years, advocates have increasingly looked to state judiciaries to serve as a backstop against federal rights retrenchment.¹ More and more, state high courts are taking up some of the most consequential issues of our time, ranging from abortion rights and climate change to gender and racial equality.² Driving this turn to the states is the realization that state supreme courts can interpret state constitutions to provide greater rights protections than their federal counterpart.³

But as some court scholars have reminded us, a narrow focus on judicial review risks an incomplete understanding of how these institutions function.⁴ For those who study state courts, limiting our attention to conventional features of judicial power is more likely to result in undertheorized conceptions of what it is state courts do. However, for those looking to state courts as a possible response to regressive federal policies, such a singular view risks overlooking the full potential of state judiciaries. Indeed, for state high courts, their supervisory power—the primary source of their administrative authority—has played an essential part in their roles as constitutional innovators and in providing for the public good.

The supervisory authority is a freestanding source of flexible, discretionary power.⁵ It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is not subject to many of the traditional limits on judicial authority, like justiciability and stare decisis, enabling courts to act where they might otherwise be unable to. And courts can use the power through adjudication as well as outside of resolving a case. Thus, at its most basic level, the power enhances a state supreme court’s capacity.⁶

The supervisory power has roots in all fifty state constitutions and provides the authority for supreme courts to manage the judiciary. It enables them to oversee judiciary personnel, control the court systems’ workloads, and supervise their general operations.⁷ Courts rely on this power to close courthouses due to inclement weather, impose workplace vaccination policies for judiciary personnel, manage complex litigation, revise and implement new jury instructions, and more.

However, this Article shows that state high courts use the power for much more than that. Indeed, despite its seemingly managerial focus, state supreme courts have relied on their supervisory power to craft sub-constitutional rights, strike statutes, and fill policy gaps left by the legislative and executive branches, among other more expansive applications.

In the past few years alone, the supervisory power has been at the center of some of the highest-profile cases in state courts. For example, following a report revealing a Massachusetts drug lab had fabricated evidence in thousands of cases over several years, the Commonwealth’s highest court fashioned a historic remedy, ordering dismissal of more than 24,000 convictions obtained as a result of the lab’s work.⁸ Several states have reformed their jury systems, emphasizing the harsh realities of racial bias in jury selection, porous nature of federal constitutional protections, and the bleak outlook at the U.S. Supreme Court for revitalizing relevant doctrines.⁹ Nearly a dozen supreme courts sought to limit the harms associated with homelessness in their states during the COVID-19 pandemic by preventing trial courts from hearing eviction proceedings.

Additional examples abound. High courts have relied on their supervisory power to craft sub-constitutional privacy rights; enhance administrative protections for incarcerated people; provide a right to civil representation for indigent parties; allow non-parties to appeal adverse decisions; and facilitate global settlements in complex civil cases.¹⁰ Further, courts have used their supervisory power to collaborate with other branches to make policies across a host of important areas, ranging from public health to criminal justice to housing.

Many of these examples drew national attention and helped highlight the possibilities and promise that lie in state institutions to make our legal system more just.¹¹ But while the spotlight shined on the outcomes themselves, what made them possible largely remained in the shadows—the courts’ supervisory power.

Like state high courts, the U.S. Supreme Court has supervisory power as well. To sharpen our understanding of the state-court power, we should consider its federal counterpart, too. As we shall see, the two differ in important ways. The federal supervisory power is rarely used, narrower in scope, and less powerful. Despite this asymmetry, the U.S. Supreme Court’s supervisory power has attracted a significant amount of scholarly attention.¹² That literature has largely viewed the power with skepticism.¹³ Critics question its legitimacy because it lacks a plausible source, is inconsistent with the Court’s role, and is in tension with federal separation-of-powers principles.¹⁴

Things look very different in the states. The supervisory power is a regular part of supreme court practice; its applications are more expansive, and it is significantly more potent than its federal analogue.¹⁵ Further, state supreme courts invoke the supervisory authority proactively, instead of waiting for parties to file suit, challenging certain institutional assumptions as to how courts exercise authority.¹⁶ Despite its significance, the state supervisory power has generated little scholarly attention. This Article thus shines a light on a consequential yet overlooked aspect of state court practice.

The Article’s core claim is that these more expansive applications of the supervisory power are a generally defensible aspect of state supreme court practice that follows from the modern institutional development of state high courts and can be defended as a distinctive feature of their role in state governance.

To advance this thesis, Part I begins by exploring where the supervisory power comes from. It first canvasses all fifty state constitutions, showing that the power has a basis in each state charter. That constitutional foundation alone, however, does not provide the supervisory power’s full genealogy. Part I thus turns to how the relevant state constitutional provisions came to be—as well as the institutional developments that prompted them. It traces the evolution of modern state supreme courts and their need for broad, flexible sources of power. During the twentieth century, state court reformers like Roscoe Pound and the American Judicature Society sought to elevate state judiciaries from simply a collection of courts to a meaningful, coordinate branch. Their efforts changed the structure of court systems, the role of supreme courts in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. That background tells us where the supervisory authority came from and provides context for understanding the broader applications at the heart of this Article.

Part II presents a descriptive account of the supervisory authority, highlighting state high courts’ more expansive applications of the power. That account shows us that state supervisory practice is vast and varied. To account for this complexity, the Article provides a taxonomy that describes both the power’s many functions and its key attributes. It shows that the power is a highly flexible, potent form of judicial authority that enables supreme courts to effectuate the judiciary’s prerogatives as well as the public interest. This account is deepened by considering its federal counterpart. A brief review of the U.S. Supreme Court’s supervisory power demonstrates that state supervisory power differs in kind—a feature of state court practice that exceeds the boundaries surrounding its federal analogue.

Part II presents a broad, potent, and highly discretionary form of judicial power. However, the supervisory power is not unlimited. Part III explores its boundaries and limits. To account for the power’s breadth and flexibility, I draw on case law, state constitutional structure, and social science literature to propose a model I refer to as the zone of supervision that sketches the perimeter of the power’s permissible uses. I then turn to how courts are sanctioned when they step outside their zone of supervision. In short, state

constitutional structure provides tools to control and limit judicial power when courts exceed their zone of supervision.

Finally, Part IV considers the supervisory power’s theoretical and normative implications. At a conceptual level, this Article’s account of the supervisory power expands our understanding of supreme courts’ policymaking capacities and roles within a state’s broader governance apparatus. As a normative matter, Part IV considers the arguments against expansive notions of judicial policymaking and concludes such criticisms are based on institutional assumptions that do not track state judicial structures. Thus, broad uses of the supervisory power are not per se problematic; we should instead evaluate each use on a retail level with regard to a court’s own zone of supervision.

Stepping back, this Article makes three contributions. First, it offers a taxonomy that maps supreme courts’ varied uses of their supervisory power and its key attributes. Second, it plots the supervisory power’s limits and proposes a model that explains prior uses of the supervisory power and helps frame its application in the future. Finally, this Article makes a normative claim, arguing that supreme courts’ expansive uses of their supervisory power are a generally defensible and legitimate feature of state court practice.

One additional note before proceeding: this Article is in service of a larger project to understand state courts and their role in state governance. For years, these institutions have largely occupied a scholarly “backwater.”¹⁷ But as we have seen, that relative inattention to state courts has surfaced at the heart of some of the most pressing issues of our time, complicating those questions in the context of both state and federal public law.¹⁸ To that end, this Article’s thesis supports a broader call to conceive of state courts on their

own terms.¹⁹ We should not presume that frames and norms born in the federal courts are appropriate, ideal, or even applicable to state courts. Instead, these institutions deserve their own investment to surface their puzzles and better understand their possibilities.

I. The Creation of State Judiciaries and the Supervisory Power

The supervisory power is the lifeblood of state supreme courts. As this Article shows, it enables them to facilitate the judiciary’s day-to-day operations, protect their institutional interests, advance their prerogatives as a coequal branch in state governance, and more. To understand this power, then, we must evaluate both how it came to be and its relationship to courts’ institutional identities. This Part takes up that task. As shown in the first Section below, the supervisory authority is a constitutional power—it claims a constitutional basis in all fifty states, either through express provision or judicial interpretation of more general language.

But these constitutional roots do not tell us everything. We must also consider the creation of the underlying state constitutional provisions—and the institutions they empower. The second Section traces that story by exploring the institutional development of modern state supreme courts and its connection to the supervisory power. State court reform efforts during the twentieth century sought to elevate state judiciaries from simply a collection of courts to a meaningful coordinate branch. Those efforts changed the structure of court systems, their role in state governance, and the scope of supreme court authority. They gave supreme courts more power—namely, the supervisory power—and revised the background assumptions that governed how courts use it. Those changes set the baseline for both the institution and modern supervisory practice.

Before turning to where the supervisory power comes from, we should note this Article’s definition of the concept. State courts have rarely provided a clear description of the power. They have largely relied on vague statements and citations to capture the wide universe of how they use the power.²⁰ This Article’s definition reflects that ambiguity but attempts to bring clarity to the concept through a synthesis of this distinctive court practice within states and across them.

The supervisory authority is a power that state high courts possess either because it is expressly provided by a state’s constitution or because courts have adopted it by construing more general constitutional provisions.²¹ It is the primary source of administrative authority for state high courts to oversee the judiciary. It facilitates judicial administration, personnel management, and general control of the court system’s workload and operations. Those categories include both judiciary policymaking and case management decisions.²² While this power may at times implicate other aspects of supreme court authority, like regulatory oversight of the practice of law and judicial discipline, courts typically understand these powers as distinct from their supervisory authority.

Figure 1 below approximates the relative relationship between the supervisory power and more familiar forms of judicial authority.

Figure 1. The Supervisory Power versus Other Forms of Court Power

These forms of power overlap because the supervisory authority is its own standalone source of power that courts use as the sole source of a decision. But courts can also rely on the power to supplement other aspects of their authority. For example, to enhance its powers of ordinary judicial review, a court might use its supervisory power to override justiciability defects or find that a party has violated a statute and use its supervisory power to enhance an ordinary remedy.

It can also supplement other distinct forms of judicial power, like courts’ disciplinary authority over judges. For example, a supreme court’s formal disciplinary authority may avail it of only a limited number of sanctions—suspending a judge or removing them—whereas the court can discipline judges in other ways that fall below such penalties via the supervisory power, like transferring a case away from a judge for misbehavior that does not rise to the level of formal suspension or removal. These brief examples highlight the supervisory power’s hallmark of flexibility and informality, which I discuss in more detail in Section II.A.

To be sure, this simplistic diagram does not fully capture the supervisory power’s nuance. That is best demonstrated through the examples provided in Part II. This rough sketch is designed to help complement the basic definition provided above as well as the more detailed historical and doctrinal discussions that follow.

A. State Constitutional Roots

State high courts in all fifty states claim a constitutional basis for their supervisory power. In thirty-two states, high courts locate the supervisory power in the text of their state constitution. The language differs somewhat from state to state, but formulations include “[g]eneral administrative and supervisory authority,” “administrative supervision over all the courts of the state,” “general supervision and control of courts of inferior jurisdiction,” “general superintending control over all inferior courts,” “administration and supervision,” and so on. These clauses vest this power in the supreme court, the chief justice, or both. Of these states, twenty-one have a clause that explicitly refers to a supervisory authority.²³ In the other eleven states, courts rely on the constitution’s general grant of judicial power or another specific clause,²⁴ infer the power from multiple clauses related to the judiciary,²⁵ or from the judiciary article as a whole.²⁶

A further ten supreme courts refer to their supervisory authority as an “inherent” power, one that necessarily flows from the structure of the state’s judiciary and the position of the court at the top of the judicial hierarchy.²⁷ One could fairly describe these states as constitutional as well, since the underlying judicial structure, like the supreme court itself, is a creature of the state constitution.

In another six states, the supervisory power is said to come from both the states’ constitutions and a statutes.²⁸ In the remaining two states, the source of the supreme court’s supervisory power is unclear; the high courts have either declined to offer an explanation or have offered competing explanations without a clear basis to suggest why one may be correct versus the other.²⁹

To be sure, there are additional nuances behind these descriptions and categories. In the hybrid states, all six supreme courts have said expressly that their power comes from both their statutes and their states’ constitutions. However, a close reading of their opinions suggests those may be more claims of form than of substance. Indeed, in five of those six states, courts have noted in footnotes or suggested in dicta that the statute simply recognizes the authority codified in the state constitution—it does not provide it—and that even if the underlying statutes were repealed, their power would not change.³⁰

While it is helpful to know that all state high courts recognize their supervisory authority as a constitutional power, that does not fully account for how courts use it. To deepen our understanding of the supervisory authority, we must consider how the underlying state constitutional provisions came to be by tracing the formation of modern state supreme

courts. As we shall see, that story helps explain this feature of state court practice and provides insights into its normative implications.

B. The Development of Modern State Supreme Courts

This Section reviews the institutional development of state supreme courts and the connection to their supervisory power.

It begins with the need for state judicial reform in the early twentieth century. The diagnosis for these changes came from Roscoe Pound, who argued in 1906 that America’s state courts were too disorganized and complicated, and that their operations and administration were subject to excessive legislative and executive oversight. At the heart of Pound’s critique was the observation that state governments had two branches—executive and legislative—and a collection of courts; they “d[id] not have any true judicial department.”³¹ This observation served as the central theme for the court reform movement.

This Section then examines the changes themselves and their relevance to supervisory practice. In brief, the various reforms to elevate state judiciaries to meaningfully serve as coordinate branches affected the structure of court systems, their role in state governance, and the scope of supreme court authority. Importantly, the court reform movement gave supreme courts more power—namely the supervisory power—and revised the background assumptions that governed how they use it. Those changes set the baseline for both the institution and modern practice.

1. The Need for Reform

From the colonial era through the nineteenth century, state judiciaries largely consisted of complex, fragmented networks of courts. Borrowing from the English tradition, there was a court for nearly every kind of case—admiralty, civil, criminal, equity, probate, et cetera—distributed across a multitude of jurisdictions—city, village, state, et cetera.³² Their jurisdiction often overlapped, and they relied on highly formal, complicated rules of practice and pleading.³³ Suits frequently bounced between courts for years due to being improperly pled for a given forum, and when a case finally reached the proper forum, courts often resolved it on procedural grounds rather than on the merits.³⁴ As a result, routine litigation was incredibly slow, unpredictable, and primarily an “elaborate contest of lawyerly arts.”³⁵

Institutionally, state courts were generally weak and insufficiently insulated from other branches, allowing them to intrude on judicial prerogatives and strong-arm their decision-making. Local governments were typically the source of funding for much of the early state court systems, creating perverse incentives for local political regimes to influence judicial behavior.³⁶ Similarly, legislatures asserted a significant amount of oversight into judicial administration, especially rulemaking.³⁷ They were typically slow to respond to necessary changes to procedural rules, made litigation even more complicated when they did, and used their rulemaking power for patronage and to advance partisan interests and patronage.³⁸

By the turn of the twentieth century, the public viewed state courts as too slow, complex, ineffective, and politicized.³⁹ Enter Roscoe Pound. In a (now famous) speech, The Causes of Popular Dissatisfaction with the Administration of Justice, Pound diagnosed the many flaws and inadequacies in state courts and proposed a solution: a unified court system.⁴⁰ He “attack[ed]” the existing approach to judicial administration in state courts as overly technical and inefficient, rendering courts largely ineffective.⁴¹ He would refine his model judiciary over the subsequent decades, but at the heart of his vision, which served as the intellectual foundation for the state courts we have today, was the goal that “[u]nification . . . result in a real judicial department as a department of government.”⁴²

Pound’s basic view was that judiciaries should consist of a fixed number of courts organized into two or three tiers (e.g., local and statewide trial courts and a supreme court), and that courts use a set of streamlined procedural rules to resolve cases on their merits more often and rely on a set of streamlined procedural rules.⁴³ He also emphasized the need to vest supervisory power in a supreme court, free from legislative override, to oversee the functioning of all judiciary business.⁴⁴ Without these elements, he argued, a state could not have a “true judicial department.”⁴⁵

2. State Court Modernization

Pound’s diagnosis and proposed intervention of a unified judiciary served as catalysts for broader efforts to reimagine state judiciaries. Over the twentieth century, leading scholars like Henry Wigmore and Arthur Vanderbilt, and national organizations like the American Bar Association and American Judicature Society, among others, all built upon Pound’s conceptual foundation by proposing a variety of model judiciary articles for states to adopt in their constitutions.⁴⁶ By mid-century, reformers were in accord that their stated mission could not be accomplished unless state judiciaries had the ability and authority to control their businesses.⁴⁷ This linkage between establishing state judiciaries as independent, coequal branches of government and centralizing control over their operations was a central theme of the reform efforts in the latter half of the twentieth century and is largely what spawned the supervisory power we know today.⁴⁸

Ensuring that supreme courts had the capacity to oversee the judicial branch and function as a coequal branch in state governance motivated many of the judicial innovations we see in current state constitutions. Consolidating and centralizing the many courts within state systems in favor of a clear hierarchy, with the supreme court at the top, ensured a clear chain of command and control over cases and administrative business. Supreme courts were given greater (in many instances, plenary) control over procedural and administrative rulemaking as well.⁴⁹ Together, these changes gave the judiciary absolute autonomy over workload—enabling the supreme court to transfer cases and judges to optimize court resources and craft rules that better met the needs of the judiciary and litigants.

One particular reform along these lines warrants additional discussion: the streamlining of supreme courts’ prerogative writ power. Prerogative writs—mandamus, habeas corpus, prohibition, certiorari, and quo warranto—date back to seventeenth-century England, where they “made up the heart of the supervisory powers of King’s Bench.”⁵⁰ At bottom, these extraordinary forms of relief provided control over lower courts to “secure the lawful and effective administration of justice.”⁵¹ Indeed, for much of their existence, “[t]he authority that a state supreme court exercised over lower courts was generally confined to [prerogative writs]” or writs of error—that is, what we might understand today as an ordinary appeal.⁵² Relief would be issued in summary fashion where remedies at law were unavailable or unable to address the alleged harm. These writs were tools to ensure justice was done if and when a lower court erred in some extraordinary fashion.

That early practice formed the basis for the power wielded by state supreme courts after the founding.⁵³ State high courts referred to their prerogative writ power in sweeping terms: “hampered by no specific rules or means,”⁵⁴ “unlimited,”⁵⁵ “plenary.”⁵⁶ This was because prerogative writs were designed to prevent an “injustice” caused by a lower tribunal, and such errors could come in many forms; thus, the remedial power necessarily had to be sufficiently flexible and adaptable.⁵⁷

Despite this intended flexibility, state prerogative writ practice nevertheless operated within the procedural norms of the time and thus was subject to the same complexity and formality that sparked the reform movement. Indeed, the broader effort to streamline procedure and practice in state courts included the prerogative writ system.⁵⁸ Innovations included “all writs” or “in lieu of prerogative writs” amendments in state constitutions.⁵⁹ These provisions vested more power in supreme courts to provide relief in instances that might not have fallen easily into existing categories and more discretion to grant relief notwithstanding technical errors from a petitioner that would have otherwise foreclosed a remedy under prior practices. In other words, distinct from ordinary appellate review, this reform enabled high courts to intervene at any stage of litigation to correct an error or omission that is sufficiently unfair or unjust.⁶⁰

In addition to prerogative writ powers, changes to state judicial articles granted supreme courts administrative powers, explicitly granting them policymaking power to issue orders and directives to govern judiciary and non-court personnel alike. Relatedly, courts were given regulatory authority over judges and the state bar in the form of disciplinary power.⁶¹ Reformers also recognized that these changes to court structure necessitated a “soft[er]” side to court business.⁶² As a truly coequal branch, judiciaries require the ability to engage in “high politics” to maintain their prerogatives.⁶³ Indeed, as one commentator noted, such capacity is “essential” to realizing the reform movement’s larger goal of elevating the judiciary above a mere collection of courts.⁶⁴ Formal design choices and informal norms, like placing the chief justice as the head of the court system, regularizing the chief’s political responsibilities, and creating government relations offices within the judiciary, for instance, help foster this capability.⁶⁵ All of these changes flow from the need for the supreme court to supervise and oversee

the operations of the court system and each resulted in an expansion of judicial power.⁶⁶

New Jersey was the first state to implement “modern court” reforms.⁶⁷ Numerous states followed suit in subsequent decades, as reformers and scholars continued to refine the ideal judiciary structure and model constitutional article.⁶⁸ This interstate variation sparked a substantial debate among scholars as to what constitutes a truly “unified” judiciary—that is, which features distinguish unified from non-unified states.⁶⁹ By the early 2000s, over half of state judiciaries referred to their court systems as “unified,” notwithstanding significant structural and administrative differences between them.⁷⁰ Due to the widespread, but inconsistent, approach to unification by courts and conceptual disagreements among scholars, commentators have increasingly downplayed the value of evaluating unification at a retail level, with a granular focus on precise constitutional provisions.⁷¹ Instead, viewing the concept at wholesale emphasizes the reformers’ goal of establishing state judiciaries as coordinate branches of government and the associated changes in judicial perceptions and identity.

3. State Supreme Courts and State Governance

The accretion of these reforms had a significant impact on the identity of state supreme courts and informs the supervisory practice as we know it today. Specifically, there are two overlapping effects from the court reform movement that offer support for this conception of the supervisory authority. One concerns the ascendancy of state high courts’ role as a policymaker in state governance. The other relates to the increasing importance of independence for the newly established concept of a coequal branch.

The modern court reform movement came on the heels of broader governmental changes at the state level. These changes significantly influenced the policymaking capacity of state high courts. As Alan Tarr has shown, twentieth-century court reform sprang from a larger effort to shift the largely plenary policymaking power away from state legislatures.⁷² Rather than a commitment to advancing the general welfare, legislators overwhelmingly pursued personal patronage and partisan interests.⁷³ Indeed, by the middle of the nineteenth century, it was apparent that organizing governance around the legislature, based on the idea that they are the most democratic, and thus most responsive branch, proved to be a mistake.⁷⁴

State constitutions were revised to place a substantial number of limits on legislative power, like single-subject rules, the creation of legislative sessions, and “positive” rights. These and related changes enhanced the level of judicial review applicable in state government. Relatedly, courts were increasingly seen as the primary “safeguard against slipshod government” in the states.⁷⁵ Thus, in addition to a more expansive conception of judicial power, these design choices supported the concept of a more active, engaged judiciary.

Further, as part of the larger project of decentralizing policymaking power, state high courts were folded more directly into the state governance apparatus. In addition to their existing ability to craft new causes of action under the common law, courts were given the power to oversee the regulation of the practice of law and judicial discipline,⁷⁶ and they were vested with the authority to exercise appointment powers,⁷⁷ direct prosecutorial discretion,⁷⁸ and issue advisory opinions.⁷⁹ Others were given responsibilities to oversee statutory reform and participate in the legislative apportionment process. Some were even tasked with determining when officials in coordinate branches are no longer able to discharge their duties.

In addition to diffusing policy and governance powers to the courts, other reform-era changes enhanced supreme courts’ policymaking capacity —most notably, the prevalence of discretionary appellate jurisdiction and the creation of intermediate appellate courts. These innovations shifted high courts from a position of mechanical error correction to one of law development. These conceptual changes were broadly felt too, as no one particular combination of reforms was necessarily responsible for shifting a state high court from a reactive, adjudicatory body that intervenes as a last resort, to an engaged, proactive agent of state governance.⁸⁰ Indeed, as Robert Kagan and others have shown, this story of institutional development reflects the “societal consensus” at the time that state supreme courts should serve as coequal participants in state governance who, like the other branches, wield their power to provide for the states’ general welfare.⁸¹

The second relevant factor is the increasing importance of judicial independence—specifically, what that means and its linkage to the supervisory power. Before the court reform movement, considerations of independence were focused on judges—ensuring they were properly insulated to make unpopular decisions—but not on the judiciary itself.⁸² This makes a certain amount of sense, as state judiciaries, as a singular branch of government, were functionally nonexistent, so there was no real institution to protect. They lacked a clear political head, relied almost entirely on the other branches for operations and administration, and were funded by local governments. Institutional independence thus came not from the judiciary’s standing as a branch of government but from the independence each individual judge enjoyed.⁸³

But the reform efforts changed this. As Robert Tobin and Michael Buenger have shown, what emerged is an institutional identity of state judiciaries.⁸⁴ As noted above, the modern court reform movement came on the heels of broader state-level governmental changes.⁸⁵ Those structural changes included experimenting with various methods of judicial selection, like popular elections and various formulations of merit selection, that would ensure greater independence of state court judges wielding this enhanced policymaking power.⁸⁶

Within these broader changes were the more specific judicial reforms discussed above. Relevant here, unification centralized more responsibilities in state judiciaries by assigning control over more programs and social services, vesting administrative and operational control in the judiciary itself —including budgetary decisions—and enhancing the scope of available judicial power to manage this construct.⁸⁷ As a result, the influence of state courts relative to coordinate branches grew tremendously.⁸⁸ Whereas in the past, state judiciaries posed a modest political threat to other branches, their elevation as a coordinate, unified branch thrust state courts deep into the political thicket. Their increased power and influence posed potential threats to the prerogatives and interests of other, now coordinate, branches.⁸⁹

The reform movement thus imposed more responsibilities for non-adjudicative services onto judiciaries, made them more publicly accountable, and increased the level of inter-branch friction. These changes reestablished a baseline assumption of both supreme courts’ role and authority.⁹⁰ These assumptions tracked the central themes of Pound and the other reformers, including the necessity that high courts wield a broad supervisory power to operate the newly established judicial branch.⁹¹ Further, the changes incentivized courts to develop identities that accounted for both their institutional interests as an independent branch of government, as well as the interests of the public, the primary source of accountability. It is in this institutional context that state high courts wield their supervisory power.

II. The Supervisory Power IN the U.S. and State Supreme Courts

Part I explored the source of the supervisory power by highlighting its constitutional basis in all fifty state charters. It further examined the historical context behind these state judicial articles and the broader institutional development that prompted them. At the center of that discussion is the growth of state judiciaries as meaningfully coequal branches, the expansion of the judicial role in state government, and the enhancement of supreme court power. That story provides helpful context for understanding the broader applications of the supervisory power at the heart of this Article.

This Part takes up the question of application by synthesizing the nature of the supervisory power and the ways state high courts use it. It provides a taxonomy that organizes the vast supervisory practice and distills the power’s hallmark features. To deepen our understanding of this aspect of state court practice, this Part considers the U.S. Supreme Court’s supervisory power, as well. That comparison further illustrates the breadth and scope of the state power and raises normative implications taken up in Part III.

A. State Supreme Court Supervisory Power

This Section provides an overview of the nature of the supervisory power as well as the ways state supreme courts use it. It draws on a survey of all fifty state high courts. The survey began with a review of judiciary articles in state constitutions as well as statutory codes to derive a set of keywords. Westlaw searches were then conducted for each state.⁹² Since documents germane to this study, like administrative orders, are rarely collected by Westlaw, judiciary websites were also searched. Due to the significant limitations on access to state court documents,⁹³ secondary sources were also consulted.

This Article’s primary descriptive contribution is surfacing and typologizing the many in which ways state high courts use their supervisory power beyond its quotidian administrative applications. To name a few, it can expand substantive rights and enhance remedies; facilitate supreme courts’ law development and agenda-setting capacities; and help mediate interbranch frictions. In short, the supervisory power expands state supreme court capacity. It can supplement or enhance other aspects of court authority, as well as serve as a standalone basis for judicial action. It is immune from many of the traditional limits on judicial power (e.g., justiciability) and can be wielded both outside and inside of adjudication. To be sure, this Article’s definition describes a vast landscape of judicial practice. As the first Article to provide a comprehensive review of the supervisory power’s more expansive applications,⁹⁴ greater explication is needed to understand the concept. This Part takes up that task by sketching the many uses for which state high courts rely on the supervisory power.⁹⁵ It then provides a holistic account of the nature of the power.⁹⁶

Uses

Uses of the supervisory power by state supreme courts are nuanced and varied. To demonstrate that breadth and complexity, this Section includes applications that are both representative and illustrative of state high court practice. This Section also provides a taxonomy to further conceptualize the power and its institutional implications.

One important descriptive insight this Article offers is that state court use of the supervisory power is not limited to the litigation context. Thus, this Section distinguishes between adjudicative and non-adjudicative uses.

a. Adjudicative

First consider the ways courts use their supervisory power in the course of adjudicating disputes.

i. Rights and Remedies

State supreme courts frequently rely on their supervisory power to reinforce constitutional and statutory rights. This most often comes in the form of ad hoc procedural rules or frameworks that enhance underlying substantive rights, like due process or protections against unreasonable searches. Courts also rely on the power to enhance or expand ordinary remedies. Some have even used their supervisory authority to craft substantive protections from outside their constitution’s bill of rights.

As to ad hoc rules and additional procedures, some state high courts have fashioned rules and procedures that exceed substantive protections under both the state and federal constitutions. For example, courts have enhanced the showing required for criminal defendants to waive counsel; strengthened protections for effective assistance of counsel; and extended the provision of assigned counsel to municipal court proceedings—all under the supervisory power.⁹⁷ Such applications are common among state high courts and, as discussed below, this aspect of state supervisory practice is distinguishable from the U.S. Supreme Court’s narrower approach.⁹⁸

While less common, some state supreme courts have used their supervisory power to craft sub-constitutional substantive rights. Here, courts are announcing a rule under the supervisory power (rather than, e.g., the Speedy Trial Clause or Free Speech Clause) but drawing on constitutional values and principles for its content. New York’s high court, for instance, has developed a privacy right based on the “spirit of the Constitution,” and the Michigan Supreme Court has crafted substantive protections for certain grand jury indictees.⁹⁹ These decisions resemble common-law-like reasoning and center both on an abstract value (e.g., fairness) as well as the proper functioning of the legal system. Indeed, the New Jersey Supreme Court’s “fairness and rightness doctrine,” a body of law that includes several sub-constitutional substantive and procedural rights, is the product of its supervisory authority.¹⁰⁰

Beyond rights, courts also rely on the power to enhance remedies. Specifically, courts use their authority to fashion extraordinary remedies for violations of constitutional and statutory rights and obligations.¹⁰¹ Along these lines, the Massachusetts Supreme Judicial Court’s order discussed in the introduction illustrates how some courts use their supervisory power as a way to provide broad, systemic relief.¹⁰² It is also used to fashion remedies for conduct that is not prohibited by statute or constitution but nevertheless violates notions of “justice,” “fairness,” and the “proper administration” of the criminal justice system.¹⁰³ The key insight here is that courts understand the supervisory power as sufficiently flexible to remedy the variety of forms unfairness and threats to the proper administration of justice may take.¹⁰⁴

The uses thus far have focused on systemic applications to address “pervasive” inefficiencies or injustices. But the supervisory power serves as a tool to correct perceived unfairness for individual litigants as well.¹⁰⁵ As explained in more detail above, this common feature of the supervisory power is a progeny of state high courts’ prerogative writ power.¹⁰⁶ Courts often refer to their supervisory power as a product or consequence of this historical practice.¹⁰⁷ In these cases, courts use their power, via original petition, interlocutory motion, or sua sponte, to correct some aspect of a case, often before a final judgment. The purpose behind this aspect of supervisory practice is “to ensure public confidence in the integrity and fairness of the judicial system.”¹⁰⁸ Accordingly, applications vary widely from revising discovery rulings¹⁰⁹ and correcting improper sentencing procedures¹¹⁰ to modifying the scope of lower-court rulings¹¹¹ and addressing explicit judicial bias mid-trial.¹¹² The representative case among all state judiciaries is where a lower court has erred, with respect to either applying binding law or discretionary decision-making, and where the resulting prejudice cannot be remedied on appeal. However, in some states, high courts have used the supervisory power along these lines where appellate relief was sufficient.¹¹³

ii. Law Development

As the courts of last resort in their respective states, supreme courts are tasked with addressing matters of first impression, updating precedents where necessary, and shepherding the state’s common law, among other law development responsibilities.¹¹⁴ The supervisory power plays an active part in supporting this duty. It serves as a tool to provide more control over what a high court decides and when it decides it.

First, courts rely on the power to reach the merits in cases—a necessary part of doctrinal development. Courts can sua sponte reach cases not presently before them by transferring suits pending in lower courts,¹¹⁵ as well as reach issues not fully developed or raised by parties once a case reaches their docket.¹¹⁶ Additionally, the supervisory power overrides many of the conventional limitations on judicial power and party presentation that may limit judicial review and thus limit a court’s ability to guide state law.

For example, supreme courts from Alabama to Hawaii have said traditional standing and mootness rules do not limit the court’s supervisory power, meaning they can resolve an otherwise nonjusticiable case.¹¹⁷ At least one court has said explicitly that stare decisis does not attach to the court’s supervisory authority;¹¹⁸ others have implied as much.¹¹⁹ In several states, supreme courts have said their supervisory power exceeds the boundaries of subject-matter jurisdiction.¹²⁰ Despite the traditional rule that “[o]ne who is not a party to an action . . . is not entitled to appeal from the judgment of a lower court,” the supreme courts of Iowa and North Carolina have relied on their supervisory power to review appeals filed by non-parties to the underlying suit.¹²¹ The high courts in several states have said filings are not necessary to invoke the supervisory power.¹²² Nor are cases that lack a statutory or constitutional basis for review necessarily beyond a court’s reach.¹²³

Once a case is before a supreme court, various party presentation requirements, like issue preservation, can narrow the scope of judicial review, limiting the reach of a court’s intervention. However, the supervisory power can override these rules as well.¹²⁴ Moreover, courts suspend customary finality requirements, which often exclude certain cases from appellate review until they have reached some level of resolution, enabling courts to reach the underlying merits sooner than they otherwise would.¹²⁵ The supervisory power can also override standards of review, a more subtle

feature of judicial review, like applying a plain error standard but not requiring a showing of prejudice.¹²⁶

Second, courts use their supervisory authority to develop the underlying substance of the law. Supervisory decisions not only presage state constitutional decisions; they set an analytical foundation to help frame the underlying right or value. For example, over a series of decisions, Alaska’s Supreme Court used its supervisory power to sketch a variety of procedures to protect witnesses who are compelled to testify.¹²⁷ In the cases, the court balanced the state’s prosecutorial interests with the risk that compelled testimony may expose the witness to criminal liability. In a third case, the court held that a subsequently enacted statute providing a form of compelled testimony violated the state constitution’s Fifth Amendment analogue, reasoning it exceeded the prior boundaries set out by the court’s supervisory power.¹²⁸ The court “piece[d] together” its prior supervisory decisions to provide the “scope” of the state constitution’s right against self-incrimination.¹²⁹ In these cases, courts draw on the rules, frameworks, values, and policies developed under the supervisory power to, as Chief Judge Judith Kaye put it, “nourish” the state constitution.¹³⁰

Finally, the supervisory power can help supreme courts assert more control over how they decide an issue. Specifically, its highly flexible nature and lack of traditional limitations allow courts to resolve issues temporarily, until internal or external factors provide the basis for a more permanent resting place, like a constitutional decision, amendment, or statute. For example, in cases raising novel questions of federal constitutional rights, courts have recognized that the U.S. Supreme Court has not yet decided the issue and instead used their supervisory power to address the challenged conduct until the U.S. Supreme Court reaches it.¹³¹ In instances where legislation is pending or would be preferred, supervisory authority can act as a placeholder until a relevant statute or regulation is enacted.¹³²

This feature of the supervisory authority has an intersystemic aspect as well. The power can provide stability for state law in the face of federal doctrinal churn. For instance, when a line of U.S. Supreme Court case law is less than clear, state high courts may develop a variety of interpretations before the U.S. Supreme Court finally clarifies the underlying rules. That clarification may reveal that a state’s interpretation was wrong, requiring a change in the law on the books in that state.¹³³ In these instances, some courts have chosen to retain their interpretation but as a matter of their supervisory authority rather than the relevant provision of the U.S. Constitution.¹³⁴ Alternatively, where a state high court has lockstepped the state constitution and the U.S. Supreme Court has “repudiate[d]” the underlying federal rule, some state courts have chosen to resolve the issue temporarily under the supervisory power to decide at a later date whether they wish to retain the old rule under the state constitution or re-yoke it to the U.S. Supreme Court’s new one.¹³⁵

iii. Interbranch Engagement

Some state supreme courts rely on the supervisory power to facilitate another institutional responsibility—engaging with other branches. This includes both collaboration and resistance. In both circumstances, the supervisory power serves as a flexible tool for courts to combine the expertise and interests of each branch and to more easily navigate inevitable frictions.

When collaborating with other branches, courts often develop policies that affect both the judiciary and the state’s legal system writ large.¹³⁶ The supervisory power’s open-ended nature helpfully provides a way to adapt and implement the interests, expertise, and views of the branches to the situation.¹³⁷ For example, the Arkansas Supreme Court’s supervisory power was central to its collaboration with the other branches in revising the state’s criminal code.¹³⁸ It relied on the authority to enact a revised set of procedural rules based on input from a commission consisting of representatives from all three branches, the bar, academy, and activists.¹³⁹

Collaboration might include operationalizing a broad policy objective announced by another branch as well. For example, during the COVID-19 pandemic, New Jersey’s governor issued an executive order allowing certain prisoners to apply for early release in light of certain health risks.¹⁴⁰ Invoking its supervisory power to implement the policy, the court crafted a “framework” and expedited procedure that marshalled judicial resources to effectuate the order while balancing due process considerations.¹⁴¹

The power can also help courts navigate interbranch tension, especially when it implicates the courts themselves. As with examples of cooperation, the supervisory power’s flexibility enables courts to tailor context-specific rules. For example, in response to a series of decisions from executive agencies perceived as coercive to the court system, the Delaware Supreme Court relied on its supervisory authority to hold that executive agencies do not have jurisdiction over judicial branch labor disputes (unlike public employee unions in other branches).¹⁴² Following a gubernatorial veto of judicial salary increases some considered necessary, Illinois’s high court used its supervisory power to invalidate the executive action and set aside procedural defects to enforce a lower court’s order requiring an increase in appropriations.¹⁴³

iv. Oversight

Finally, all state supreme courts, through individual justices, the chief justice, or an administrative office, are responsible for administering the judicial branch.¹⁴⁴ Though this Article is focused on uses of the supervisory power beyond its quotidian administrative applications, some courts have taken notably expansive views of their oversight responsibilities and their judiciary’s overall workload that are worth considering.

For example, the Arkansas Supreme Court has relied on its supervisory power to appoint an “independent consultant” to audit and recommend solutions to address chronic backlog in lower court districts.¹⁴⁵ In response to a constitutional amendment providing California’s lower courts with “unlimited” habeas corpus jurisdiction, the California Supreme Court promulgated a filing procedure to avoid confusion stemming from overlapping jurisdiction that would ensure an efficient and “equitable” case flow.¹⁴⁶ While these examples may seem routine on their face, the courts’ explanations for their choices center “important considerations of public policy” and other normative values. In that sense, these brief examples illustrate additional ways state high courts use their supervisory power to operationalize notions of the general welfare within the proper administration of justice.

Complex litigation is another example where supreme courts rely on their supervisory power to manage systemwide workload and where choice and values can enter the decision. These uses of the power often resemble federal multidistrict litigation practice but are ad hoc and based purely on a supreme court’s discretionary evaluation of what is best in a particular situation for the judiciary, litigants, and public.¹⁴⁷

Here, too, supreme courts have used this oversight aspect of the supervisory power to achieve normative ends through the active management of such mass litigation. For example, at a time when Philadelphia’s trial courts had among the largest asbestos dockets in the country, the Pennsylvania Supreme Court used its supervisory power to consolidate almost 2,000 cases and order all pending matters to proceed immediately to a nonjury trial.¹⁴⁸ At the heart of the court’s decision was its emphasis on achieving “timely justice.”¹⁴⁹ Similarly, Colorado’s high court coordinated a spate of water law cases in a single trial court and promulgated an ad hoc procedure to resolve them as efficiently as possible.¹⁵⁰ Animating the court’s order was its recognition that it is an integral part of the state’s lawmaking apparatus and that the complex cases could frustrate its ability to contribute to state water policy by overloading judicial resources.¹⁵¹

Beyond control over courts and global workload, the oversight function of the supervisory power includes control over judges, too. This use of the supervisory power is distinct from formal disciplinary proceedings.¹⁵² Supreme courts rely on the power to ensure individual members of the judiciary are properly “administ[ering] justice” and comporting themselves with the high court’s conception of fairness and equality.¹⁵³ Thus, race-conscious jury assignments that violate notions of equality, wielding judicial power in a way that is “oppressive and improper,” and presiding over cases in ways that fail to meet the supreme court’s quality standards are the kinds of conduct supreme courts rein in with their supervisory power.¹⁵⁴

b. Non-adjudicative

As judges and commentators have long observed of the federal courts, they are “reactive” institutions that lack a “self-starter,” meaning the judicial power requires “someone outside of the judicial system” to initiate it.¹⁵⁵

To be sure, the U.S. Supreme Court can and does set its own agenda by signaling an appetite for certain kinds of cases to external actors, selecting cases that advance their interests, and defining the questions presented to help ensure particular outcomes.¹⁵⁶ These instances of judicial choice constitute a form of policymaking but nevertheless are still limited by the Court’s reactive design.¹⁵⁷ Indeed, as Martin Shapiro and Alec Stone Sweet put it, “litigants activate” the Court, which, in turn, defines the “parameters” for how it impacts law and policy.¹⁵⁸

Along these lines, state supreme courts operate very differently. Relevant to this Article, wielding their supervisory power is not necessarily contingent on a litigant invoking the judicial machinery. Rather, state supreme courts can and do proactively use their supervisory power to craft policy, contribute to state governance, engage with other branches, protect their institutional prerogatives, and promote their own conception of the general welfare. It is this proactive nature of the supervisory power that enables state supreme courts to serve as more than a passive policymaker, as with their federal counterpart, but instead an active agent in state governance.¹⁵⁹

i. Policymaking for the General Welfare

In addition to the reactive applications above, supreme courts can and do use their supervisory authority as a proactive policymaking mechanism. Specifically, it serves as a source of power that enables courts to advance particular normative ideals and contribute to a state’s general welfare based on its evaluation of what is necessary. Consider some recent examples.

Fines and fees. The supervisory power played an important role in reducing or eliminating the imposition of fees and fines. While the issue is not new, the pernicious effects and racial disparities caused by over-reliance on such penalties and obligations attracted renewed attention in 2014 after a police officer killed Michael Brown in Ferguson, Missouri.¹⁶⁰ The U.S. Department of Justice’s subsequent investigation and report drew a national spotlight on the ways in which some courts and local governments use fees and fines as revenue generators.¹⁶¹ In response to evidence showing the race and class implications of such policies, several state supreme courts used their supervisory powers to rethink the role of these penalties, with a more just judiciary serving as their North Star.¹⁶²

For example, after reviewing a report from a committee tasked with studying the impacts of court fees, the New Jersey Supreme Court invoked its supervisory authority to dismiss nearly 900,000 outstanding municipal cases and over $7 million in fines.¹⁶³ It also narrowed the circumstances in which judges can impose fees and capped permissible amounts.¹⁶⁴ The court’s actions were driven by its conception of a just court system: one that does not allow local governments to use the judiciary as a means of extraction.¹⁶⁵ New Jersey was not alone—high courts in Illinois, Kentucky, Michigan, and Virginia, used their supervisory power to make similar changes to their respective court systems.¹⁶⁶

Housing moratoria. Another recent example arose during the COVID-19 pandemic, which, in addition to the public health crisis, prompted significant social and economic instability nationwide.¹⁶⁷ Among the myriad effects of these shocks was housing security. Indeed, a policy challenge that government at all levels faced during the pandemic was how to balance the public health impacts of mass displacement with the economic considerations flowing from the significant job and wage losses across the country.¹⁶⁸ During this period, state actors enacted a “largely unprecedented” set of housing policies to try and manage the crisis.¹⁶⁹ State supreme courts, it turns out, played a proactive role, using their supervisory authority to initiate and shape these policies.¹⁷⁰

The most common form of housing policy interventions were eviction moratoria, where supreme courts would severely limit, or prohibit entirely, court-ordered evictions. As with most state-level policy responses, interventions varied. Court-imposed moratoria differed in duration, scope, and reach.¹⁷¹ Courts also framed the underlying issue differently in their orders—a feature of the supervisory power. For some, their order defined the issue as eviction itself, whereas for others, courts saw themselves as wielding their supervisory power to help limit larger social issues, like homelessness and the continued spread of COVID-19.¹⁷² For example, the South Carolina Supreme Court suspended all pending and future evictions for a period of months in recognition of the “difficulties,” like “housing insecurity and homelessness,” the pandemic would cause “individuals.”¹⁷³ Tennessee’s high court prohibited all judiciary personnel from “tak[ing] any action to effectuate an eviction . . . based upon the failure to make a rent, loan, or other

similar payment,” due to “the increasing economic issues caused by this pandemic.”¹⁷⁴

In addition to moratoria, supreme courts also crafted policies and procedures that modified or supplemented their existing eviction processes. Supreme courts in Michigan and New Jersey, for instance, instituted diversionary policies requiring landlords and tenants to attempt settlement before an eviction action could be filed.¹⁷⁵ Notably, the courts here were not reactively deciding disputes between parties, but were instead proactively issuing policies to try and limit the perceived social and economic effects of a crisis affecting the state.¹⁷⁶

Problem-solving courts. The instances above are more recent examples of the ways through which state supreme courts have affirmatively used their supervisory power to contribute to state governance. Another use along these lines, perhaps with a longer pedigree, is the creation of problem-solving courts.¹⁷⁷ Supreme courts use their supervisory authority to create specialized dockets, procedures to manage them, and groups of judges to

hear the cases, all within the existing judicial infrastructure.¹⁷⁸ These choices are made “outside the crucible of litigation.”¹⁷⁹

Like the examples above, specialty courts are another way supreme courts are addressing issues they perceive as important and using their supervisory power to fashion responses.¹⁸⁰ Indeed, specialty courts originated as a judicial policy solution to increasing rates of recidivism among drug offenders and spikes in incarceration rates from a turn to tough-on-crime politics. As a former Chief Judge of New York’s judiciary explained, these courts enable judiciaries to affect a “quiet revolution” to give victims and communities “enhanced safety and a greater voice” and a way for the judiciary to meaningfully contribute to society without “simply proliferating legal process.”¹⁸¹ Supreme courts across the country have created and manage specialty courts that touch on a range of issues, from homelessness to guns, to mental health and opioids. It is not the existence of these courts that makes them notable, but the discretion available to state supreme courts to conceptualize and experiment with solutions to address issues they foresee as necessitating interventions to benefit the state’s health, safety, and general welfare.¹⁸²

ii. Interbranch Engagement

In addition to serving as a source of affirmative policymaking, the supervisory power provides a way for supreme courts to engage with other actors outside of litigation. Here, it provides a tool for courts to advance desirable policies and pursue institutional interests.

A common application along these lines was discussed above—courts craft ad hoc rules and procedures that influence the investigative and prosecutorial discretion of state executive branch officers.¹⁸³ But as we know, state courts operate in a federal system, and so we should expect interactions with the federal government as well. Indeed, some courts have

relied on their supervisory power to affect the scope of federal executive authority.

For example, during the Trump administration, U.S. Immigration and Customs Enforcement (“ICE”) officers significantly increased their presence in state courthouses, arresting people coming to court as defendants or witnesses in cases unrelated to immigration.¹⁸⁴ Relevant here, ICE typically relies on “administrative” warrants, which are not reviewed by a neutral party to determine if it is based on probable cause.¹⁸⁵ Contemporaneous studies of this dramatic change in federal policy showed the increased threat of immigration enforcement had a chilling effect on state legal systems, preventing “immigrants from reporting crimes and participating in court proceedings.”¹⁸⁶

Several state supreme courts, particularly in blue states, responded by enacting new policies pursuant to their oversight of their state’s court system. For example, the Oregon Supreme Court promulgated a rule that required a heightened showing from ICE in order to make an arrest within or around Oregon courthouses. The high courts in Connecticut, New York, and Washington enacted similar policies for their respective court systems.¹⁸⁷

Moving beyond the executive branch, high courts can and do use their supervisory authority as a defense against perceived incursions from the legislature or to assert their prerogatives over the coordinate branch.

Consider letters of address. These are formal letters issued by state high courts to coordinate branches that provide legal analysis of pending legislation or possible executive action.¹⁸⁸ In some sense, they are like advisory opinions. However, they differ in at least one important respect—advisory opinions typically require a request from another branch, whereas letters of address are issued sua sponte. For example, the Michigan Supreme Court has sent several letters to coordinate branches, as far back as the nineteenth century, noting that pending or recently enacted legislation was unlawful.¹⁸⁹ Pennsylvania’s Supreme Court issued a similar letter intended to “mak[e] [their] views known” that the state constitution prohibited application of state public records laws to supreme court rulemaking procedures.¹⁹⁰ Maine’s Supreme Judicial Court provided advice that pending legislation purporting to require cameras in courtrooms was unlawful.¹⁹¹ And Massachusetts’s Supreme Judicial Court issued guidance sua sponte concluding various statutes reclassifying certain members of judiciary staff as part of the executive branch were constitutional.¹⁹²

These examples illustrate ways supreme courts can use their supervisory authority to affirmatively engage with other branches, but the key insight is that the supervisory power enhances their ability to act affirmatively. This feature has two notable benefits. It increases their independence, since courts need not wait for a proper case challenging a coordinate branch’s actions that threatens judicial prerogatives. And it can minimize the “risk [of] creating and prolonging unnecessary tension between [the] branches of government.”¹⁹³

But it is the supervisory power that creates opportunities for supreme courts to consider and weigh these factors against their institutional interests and possibly act free from the confines of litigation.¹⁹⁴

Attributes

The prior Section explored various ways in which state courts rely on their supervisory power. Turning from the how to the what, the discussion below examines the nature of the supervisory power by reviewing its key attributes.

a. Freestanding

The supervisory power functions as a freestanding source of judicial authority.¹⁹⁵ It is distinct from conventional aspects of state judicial power, like judicial review and common lawmaking, as well as more distinctive manifestations, like attorney discipline. This has implications on the scope and availability of a court’s authority.

First, because supervision spans a court’s adjudicative and non-adjudicative authority, the power is not limited by a supreme court’s jurisdiction.¹⁹⁶ In other words, when a court’s administrative or operational interests are implicated, their power is not constrained by the various jurisdictional or procedural defects that might otherwise foreclose review.¹⁹⁷ Second, because the power is freestanding and constitutionally based, it means the supervisory power cannot be narrowed by statute.¹⁹⁸

b. Lower Showing Needed

In some states, supreme courts have has conditioned supervisory relief on a certain showing of prejudice, not unlike ordinary judicial review.¹⁹⁹ However, because it is a separate power, some courts have required litigants to make a showing to warrant relief that is correspondingly different from that needed to prevail on a constitutional or statutory claim.²⁰⁰ When invoking their supervisory power, the interests implicated go beyond just the rights of the individual litigant but encompass the court system’s prerogatives, as well.²⁰¹ Additionally, unlike a constitutional claim, courts often use the supervisory power to modify or create new procedures or policies rather than invalidate statutes, further altering the institutional interests at stake in litigation.²⁰²

c. Discretionary

The power is also entirely discretionary.²⁰³ To be sure, some courts have devised standards that purport to cabin its availability, but such decisions are purely a product of choice. For example, they ask whether the underlying issue presents an “extraordinary circumstance,”²⁰⁴ is “sufficiently compelling,”²⁰⁵ or “serves the interests of judicial economy.”²⁰⁶ Others lack a standard along these lines but instead describe use of the power as rare or infrequent to suggest there’s a presumption against its use.²⁰⁷ But these standards are judicially imposed and courts rarely explain why a given case rises or fails to meet these thresholds.²⁰⁸ Additionally, some courts have significantly increased their use of the supervisory power, notwithstanding

continued adherence to such presumptions, as in Connecticut, Illinois, and Montana.²⁰⁹

More often, courts decline to provide any kind of standard governing their supervisory power or explicitly refer to it as a choice.²¹⁰ The structural guardrails that ordinarily cabin discretion are similarly absent. Considerations like text, precedent, and parties’ arguments that generally impose some guidance—even if minimal—on courts in the adjudicative context are not implicated.²¹¹ The discretionary nature of the power is especially acute in the non-adjudicative context, as courts need not wait for a party or litigant to initiate it, thus removing one of the strongest limits on judicial power.²¹²

d. Flexible

In addition to its discretionary nature, a hallmark of the supervisory power is its flexibility.²¹³ This manifests in two respects. First, rather than a fixed set of applications or possible contexts in which the power might apply, courts typically see it as open ended. The supervisory power is primarily a tool that enables the supreme court to address whatever needs arise in its responsibilities overseeing the judiciary. Those needs often result from unpredictable external factors, like a once-in-a-generation pandemic or a national recession.²¹⁴ Thus, the power must necessarily be sufficiently adaptable. Relatedly, the supervisory authority maintains the integrity of a court system and ensures the proper administration of justice. This objective similarly requires a certain level of flexibility, as injustice can come in many forms.²¹⁵

Second, the underlying doctrine generated by the supervisory power is supple.²¹⁶ Conventional constitutional analysis is generally quite rigid; the permanence of constitutional rules, additional factors like precedent and methodological commitments, and the specter of U.S. Supreme Court review can lead to quite wooden forms of decision-making.²¹⁷ Supervisory decisions, in contrast, are explicitly understood by state high courts as closer to generic understandings of policymaking than mechanical application of existing law to fact.²¹⁸ They explicitly consist of interest balancing and weighing various considerations, some of which may be absent from the underlying case.²¹⁹ Further, these decisions are often—though not always²²⁰—applied prospectively, which further blunts the force of precedent, minimizes the cost of overruling, and offers courts the lawmaking latitude “comparable to that of legislatures.”²²¹

However, despite its highly flexible nature, the supervisory power is not without bite. Though the U.S. Supreme Court has never invalidated a statute under its supervisory power,²²² such a result is not uncommon among state supreme courts.²²³ Additionally, not only have state high courts narrowed the discretion of executive and legislative actors; they have also forced state actors to take discretionary action, like ordering the legislature to appropriate a specific amount of funding.²²⁴ As such, the open-ended nature of the power does not necessarily dilute its potency.

e. Normative in Nature

Orders and decisions issued under a supreme court’s supervisory authority are explicitly subjective in their content. To be sure, this is not to say they are arbitrary. Quite the opposite—decisions are often highly evaluative of the underlying needs of the judiciary, the state’s larger legal system, and, in some instances, the population writ large. Courts may draw on various sources of facts, policy, science, and so on, to inform their decision.²²⁵ But paired with its highly discretionary nature and few formal constraints, it is in this sense that the supervisory power is predominantly a means for courts to operationalize normative or subjective views of the state’s law and policy. The underlying premise of decision-making pursuant to the supervisory power is not what a prior case, statute, or other sources provide to address a given issue. Instead, courts start from a place that’s closer to first principles and ask what they “should” do.²²⁶

***

The discussion thus far has shown that the state supervisory power came as a result of broader state-level governmental reforms that elevated the political status of state judiciaries, expanded their role in governance, and enhanced their power. This Part has demonstrated that the power is a discretionary, flexible, standalone form of judicial authority that increases the capacity of courts and overrides many of the traditional limits on their power. Courts have used their supervisory power beyond the day-to-day management of the judiciary to enhance remedies, strengthen rights, and navigate interbranch relations.

To expand our understanding of the state supervisory power, we should also consider its federal counterpart. That comparison shows that the state supervisory authority is more expansive, potent, and legitimate. It raises important normative implications for how we evaluate this aspect of state

judicial practice and challenges some institutional assumptions concerning state high courts. I elaborate on these implications in Part IV.

B. U.S. Supreme Court Supervisory Power

Similar to state courts, the U.S. Supreme Court’s supervisory authority refers to powers that enable it to oversee the federal judiciary’s operations “in order to preserve the integrity of judicial processes.”²²⁷ However, as shown below, the federal high court’s supervisory power is narrower, significantly more limited, and generally considered an illegitimate feature of federal practice. Thus, the key takeaway from this brief comparison is that while state and federal supervisory powers share common elements, the former is a distinctive feature of state court practice.

Comparison

Looking at the Court’s use of the power as a whole, it largely falls along two tracks—ad hoc rulemaking and remedial enhancement.²²⁸

Cases fall along the first track when relevant procedural, statutory, or constitutional sources come up short.²²⁹ When the Court perceives an omission in relevant statutes or rules of procedure that affects the “quality” or proper functioning of federal litigation, it uses its supervisory power to address it.²³⁰ On the second track, the Court uses its supervisory power as an auxiliary form of remedial authority to execute statutory and constitutional policies. In these cases, the Court perceives that the existing enforcement mechanism fails to sufficiently implement a statute’s underlying objective or constitutional right’s core values, then uses the supervisory power to span the remedial gap. These features of the Court’s supervisory power are similar to the applications discussed in Part II.A—state high courts use their own authority along the same lines.²³¹

The federal supervisory power is also flexible, consisting largely of balancing by the justices. Some scholars have described it as “procedural common law” or “procedural lawmaking.”²³² Others have referred to supervisory decisions as “essentially legislative” in that the Court’s reasoning is more akin to policymaking than legal analysis.²³³ This, too, parallels the state supervisory power.²³⁴

Despite these similarities, there are significant differences between state and federal supervisory powers. Notably, the Court’s own power is limited to adjudication, unlike its state counterparts. Further, when it crafts ad hoc rules, the protections they afford litigants rarely exceed existing Constitutional limits—i.e., federal supervisory rules seldom offer more protection than the Constitution.²³⁵ And the Court has never invalidated a statute with its supervisory power. In these ways, it is fair to say that the U.S. Supreme Court’s supervisory authority is narrower and less potent than its state-level alternative.

Judicial Administration and Constitutional Structure

The differences between the state and federal powers can primarily be explained by structural features of the state and Federal Constitutions and their respective judiciaries.

As discussed in Part I, state court systems evolved into a unified model, placing the supreme court as the administrative head of the courts and centralizing in the high court operational powers and responsibilities. The federal courts followed a different path. Federal court reformers, like William Taft, pursued a decentralized design. While the Supreme Court is the highest court of the judiciary, administrative and operational responsibility is diffused across a vast network of judicial agencies.²³⁶

For example, the Judicial Panel on Multidistrict Litigation both consolidates complex civil cases in a single trial court for pretrial proceedings and fashions rules that govern relevant procedures.²³⁷ The Administrative Office for the federal courts oversees the judiciary’s pretrial supervision and probation services for criminal defendants.²³⁸ The Judicial Conference serves as the courts’ primary policymaking arm, developing policies to implement the myriad statutes governing the federal courts, as well as advising Congress on the federal judiciary’s needs and interests.²³⁹ Together, they create a constellation of supervision. Thus, whereas supreme courts administer state judiciaries, the federal court system is administered by the federal judiciary.²⁴⁰

Further, unlike state courts, the administrative power of the federal courts is almost entirely statutory.²⁴¹ This structural distinction raises institutional considerations as to the scope of the power courts wield and the source of the prerogatives behind it. Since the various judicial agencies are creatures of statute, many of the first-order policy choices are made by Congress rather than the Supreme Court.²⁴² Even where Congress delegates broad discretion to the judiciary, it is wielded by a vast bureaucratic apparatus, rather than a single decision-making institution.²⁴³ To be sure, the Chief Justice wields a significant amount of influence over this system, but the underlying structure is sufficiently decentralized as to allow for inter-agency conflicts and even for agencies to countermand the Chief Justice’s own prerogatives.²⁴⁴ In these ways, the structural distinctions between how state and federal courts are administered plays a substantial part in the scope of the supervisory authority available to the respective high courts.

Constitutional structure similarly contributes to the differences between the state and federal supervisory powers. The source of the federal supervisory power is contested in the literature,²⁴⁵ but the federal government can only exercise those powers provided for by the Constitution, and scholars generally agree, whatever its source, that Article III significantly limits its scope.²⁴⁶ Broad uses of the supervisory power is said to exceed these limits by providing the justices with a “freestanding” source of policymaking authority that enables them to resolve disputes based on normative assessments of justice and fairness, rather than a statute or constitutional provision. In other words, sketching public policy, crafting the suite of remedies available for violations, and determining the methods of enforcement are all issues that fall to nonjudicial branches. State constitutions, in contrast, limit and distribute powers rather than grant them, and as discussed in Part I, modern government reform allocated greater policymaking responsibilities to supreme courts and created the supervisory power as one of their primary tools to do so.

In sum, the U.S. Supreme Court has a supervisory power that shares several features with its state counterpart. It is flexible and has largely served as a source of policymaking power to craft ad hoc procedural rules and enhance remedies. However, the two differ meaningfully. The federal power is both rarely used and narrower in scope.²⁴⁷ It is limited to adjudication, rarely afforded parties the level of relief seen in state courts, and never served as the basis to invalidate a statute. These distinctions are largely products of the fact that state constitutions generally allocate more administrative policymaking power to state courts than their federal counterpart and that power is centralized in state supreme courts whereas in the federal judiciary it’s diffused across a host of actors.

III. Boundaries and Limits

The discussion thus far has described the supervisory power of state supreme courts and connected this feature of state court practice to the institutional development of modern state judicial systems. That analysis defends the broader uses of the power reviewed in Part II as both institutionally and constitutionally grounded. But this Article’s thesis is a qualified rather than wholesale defense of the practice. This Part thus considers the supervisory power’s limitations. As Part II showed, the supervisory authority’s applications are vast and the power itself quite discretionary. To account for this breadth and ambiguity, this Part proposes a model it terms the zone of supervision to sketch the supervisory power’s boundaries. It then discusses how state constitutional structure provides tools to sanction courts when they cross them.

A. Boundaries

This Section sketches the supervisory power’s metes and bounds through a model that both explains prior uses of the power and helps frame how courts might use it in the future.

The model relies on two variables drawn from the descriptive and institutional accounts above: the legalness of the underlying issue and its proximity to judiciary interests. Together, the variables create a two-dimensional space this Article refers to as the zone of supervision, which represents the idealized conception of the supervisory power. This perimeter demarcates the scope of a court’s supervisory power. Uses that fall outside the scope should be viewed with skepticism. Section III.B explores the various sanctions available when a court does wield its power beyond its zone of supervision. But first, this Section unpacks the model by exploring its two variables.

Legalness

Legalness here refers to the nature of the underlying issue or intended application.²⁴⁸ Based on this attribute, supreme courts may consider the supervisory power to be appropriate or ill-suited to addressing the question. In this context, legalness falls along a spectrum. The spectrum turns on the informal nature of the supervisory power and the fact that it overlaps with other forms of judicial authority. On the one end are applications of the power that are insufficiently legal or too policy-like. At the other end are applications that are too legal.

State high courts consider applications of the supervisory power as too policy-like when they implicate a multitude of competing interests and lack a basis to weigh them, or have multiple potential resolutions without clear criterion to evaluate them. For example, when asked to impose a requirement that jurors in a criminal proceeding identify their race before voir dire, the Connecticut Supreme Court declined, explaining that the central issue—the interaction between the ways jurors self-identify with the perceptions of prosecutors—was too complex.²⁴⁹ Iowa’s high court similarly refused to craft a rule under its supervisory power to require certain probation proceedings precede related criminal trials, explaining that such a rule implicates sufficiently complex questions of public safety best left to the legislature.²⁵⁰

At the other end of the spectrum are applications that are too “legal,” meaning courts decline to exercise their supervisory power because the issue calls for a more formal or durable source of power.²⁵¹ For example, North Carolina’s supreme court declined to use the supervisory power to reach the merits of an as-applied challenge to a statute in a consolidated case because it was appealed before any record development in the individual actions.²⁵² And Kansas’s high court refused to use its supervisory power to issue ad hoc relief, reasoning the precise remedy sought already existed in a statute.²⁵³

Proximity to the Judiciary

The supervisory authority’s purpose as a power supreme courts wield to oversee and manage the judicial branch serves as a boundary as well. Application of the supervisory power is sensitive to its relative proximity to the judiciary and its responsibility overseeing a state’s justice system.²⁵⁴ That is not to say the supervisory power is limited to contexts that only concern the judiciary, but it is to suggest that there must be a sufficient nexus between the policy or relief sought pursuant to the supervisory authority and judiciary operations and its interests.²⁵⁵

On one end is high proximity to the judiciary. While comparatively rare, there may be some contexts where supreme courts might see their intervention as unwarranted or inappropriate. This arises in areas where lower court discretion is typically expected, like decisions related to appointing counsel, courtroom management, contempt orders, and so on.²⁵⁶ But for the most part, situations with a significant nexus to judicial operations or interests will warrant use of the supervisory power.²⁵⁷

On the other end are issues that are too remote from the judiciary’s interests or administration. As the relationship between the judiciary’s interest in the proper administration of justice and responsibility for operations and the sought-after relief grows more attenuated, supervisory power is considered less appropriate. For example, crafting evidentiary rules or rules of criminal procedure is closer to the judiciary than announcing a rule under the supervisory power that would directly control law enforcement conduct.²⁵⁸ And sketching rules concerning public access to internal records for a component of the judiciary differs materially from an agency that is constitutionally separate.²⁵⁹

As noted, both variables—legalness and proximity to the judiciary—exist on spectrums. Bringing them together, we can see a sweet spot where the supervisory power is best suited or most appropriate. This Article terms the area the zone of supervision. It is in this space that courts should wield their supervisory power. Applications that fall outside its contours should presumptively be viewed as overreach. Figure 2 below serves as an illustration.

Two points of clarification are warranted. First, this model is not based on fixed points. In fact, the variables are contingent. As discussed in Part II, the power is highly discretionary and flexible. This adaptability allows courts to frame applications of the power in different ways that may place it within or beyond the zone of supervision.

Figure 2. Zone of Supervision

For example, consider again the pandemic eviction moratoria. Suppose two courts issue moratoria that are identical in every way except the reasons for them. Court A says it is invoking its supervisory power because it feels that the potential harms to unhoused people during a historic pandemic outweigh the economic harms to landlords. Court B explains that due to social distancing requirements, the number of cases the judiciary can process is significantly reduced and that it must prioritize criminal cases, custody disputes, and domestic violence hearings over eviction proceedings due to speedy trial requirements and liberty interests. The outcomes under either framing are essentially the same—no eviction proceedings—but one might reasonably think Court B’s moratorium is closer to the heart of its zone of supervision.

These choices reflect a linkage between how courts frame applications of the power and their understanding of the specific contours of their zone of supervision. To a certain extent, this is to be expected, as the contextual

nature of a given supreme court’s power is well documented in the literature.²⁶⁰ Indeed, interstate variation is not uncommon.

For example, consider how state high courts divided over a rule requiring law enforcement to record custodial interviews. Several courts considered the issue under state and Federal Constitutions as well as the supervisory power and split on the question.

The high courts in Minnesota, New Hampshire, New Jersey, and Wisconsin, for instance, understood the question to be well within the bounds of their supervisory powers’ zone of supervision, as it implicated their duty “to take all appropriate measures to ensure the fair and proper administration of a criminal trial.”²⁶¹ For the supreme courts of Connecticut, Kentucky, Maryland, and Vermont, though, the issue neither raised a constitutional question nor was it appropriate for supervisory relief and was thus best suited for the legislature.²⁶² There are other examples,²⁶³ and they

each illustrate how the variables within the model sketched above are not fixed across states but, due to the nature of the doctrine, are quite fluid.

Second, when an application of the supervisory power falls outside of the zone of supervision, it does not mean such a use of judicial power is inappropriate or illegitimate. Developing a rule or framework may be well within the court’s power—but just not its supervisory authority. For example, a court may determine requiring custodial interrogation of juvenile suspects is outside its zone of supervision, but it is required by the state constitution’s due process clause or a provision of a relevant statute.²⁶⁴ The supervisory authority is a standalone power and can thus supplement other forms of judicial power as well as serve as an alternative basis for a court to act.

Limits

A court’s zone of supervision is subject to both internal and external factors that police its boundaries. But both factors implicate the state’s political environment.

Internally, as multimember bodies, a supreme court’s composition is crucial to how and when it wields power.²⁶⁵ The supervisory authority is no exception. Thus, changes in a court’s composition can influence whether a given application of the supervisory power falls within the zone of supervision or should instead be seen as exceeding authority. For example, in the early 2000s, the Michigan Supreme Court experienced “deep divisions” along these lines.²⁶⁶ After decades construing the supervisory power broadly,²⁶⁷ a new majority of the court took a narrower view of its zone of supervision.²⁶⁸

While these internal factors can limit the supervisory power, the primary checks are external. Indeed, state constitutions “prioritize[] external checks on government more than internal checks.”²⁶⁹ Following the “first wave” of state constitutions at the founding, subsequent charters from California to Connecticut emphasized control of government through novel structural innovations, like single-subject rules, statewide gubernatorial elections (versus legislative selection), and the creation of referendum, initiative, and recall processes.²⁷⁰ It is these unique structural features that offer legal and political tools to constrain government authority.²⁷¹ Thus, the most consequential check on state judicial power is the state’s political processes, as defined by a state’s particular constitutional structure, norms, and history.²⁷²

Consider some of the relevant structural features common to state constitutions. The vast majority of justices stand for some kind of election. And even in the states that rely on a different method of selection, those mechanisms are not distorted by structures like the Electoral College. These features offer some level of majoritarian control over who is wielding judicial power. Further, with one exception, all state constitutions impose mandatory retirement, term limits, or both, which help facilitate churn as to court personnel. And the meaningful availability of popular initiative and amendment can similarly serve as a form of judicial sanction.²⁷³ Taken together, these and other structural considerations play, as Laura Langer has shown, “defin[ing]” roles as to the contours of a supreme court’s power.²⁷⁴

The coordinate branches similarly channel a state’s politics to influence the shape of a court’s power and what judges consider overreach or lack of compliance. As Meghan Leonard has observed, the coordinate branches of state government “have increased ability to fight back” against state supreme courts, relative to their federal counterparts.²⁷⁵

Both branches have constitutional and political tools that can narrow and check courts. In state’s that rely on executive appointment, for instance, governors have used this authority to reconfigure courts they think of as activist, a tack Govenor Chris Christie attempted in New Jersey.²⁷⁶ Executives have also used their fiscal powers to slash court budgets or offer lower court judges raises in exchange for support of measures that check supreme court power.²⁷⁷ As leaders with a statewide base, governors have also successfully galvanized popular support via direct democracy to bypass the legislature and override or countermand the courts.²⁷⁸

State constitutional structure and politics similarly afford legislatures several tools to meaningfully check judicial power. In the states where legislatures play a role in reconfirming or retaining justices, Thomas Gray has suggested the availability of such a sanction can and does chill potential abuses of judicial power.²⁷⁹ Legislatures can also use their impeachment power as a way to threaten or check judicial overreach.²⁸⁰ Similarly, there is a growing literature exploring the effects of court-curbing legislation at the state level that shows it can limit court power through direct (modifying substantive or procedural features) and indirect (galvanizing public support against the court) means.²⁸¹

State constitutions also provide the possibility of constitutional amendment, which can check judicial power and modify its undesirable applications. Studies of the constraining role of such measures suggest that using amendments to keep statutory and constitutional texts brief and detailed through frequent revision can “limit . . . the judiciary’s capacity to shape public policy” by narrowing their interpretive discretion and “minimiz[ing] the need for ongoing judicial determinations in the development of evolving public policies.”²⁸²

As a result of many of these structural features, most state high courts operate in closer proximity to their state’s political thicket than their federal counterparts.²⁸³ As discussed in Part I, this was an intentional design choice as part of court unification efforts. That said, not all courts and chief justices are equally adept at the judicial statesmanship aspect of their jobs.²⁸⁴ In this way, a court’s political savvy can (perhaps subtly) influence the boundaries of a court’s power and thus its zone of supervision as well.²⁸⁵

In sum, the distinctive vision for government that elevated supreme courts to truly coordinate branches and produced the supervisory power was also responsible for the constitutional features that limit it. These structural considerations produce internal and external political factors that can genuinely sanction and check court power. Indeed, the state public law literature has long recognized state courts are subject to political forces to a degree “unknown in the federal system.”²⁸⁶ The accumulation of these elements produces a governance structure capable of “absorb[ing]” broad applications of judicial power “much more constructively than the federal system.”²⁸⁷

With these boundaries and limits in mind, the next Part considers what to make of the supervisory power, as well as its broader implications.

IV. Implications

During the nineteenth and twentieth centuries, states from Alaska to Maine revised and redefined the structure of their governments through a flurry of constitutional conventions and amendments.²⁸⁸ Among other things, these changes elevated state judiciaries to equal status with other branches, made them more independent vis-à-vis the other branches, reconceptualized the role of state high courts by expanding their responsibilities, made them more accountable to the public, and, importantly, deliberately increased their power.²⁸⁹

The increase in power and political status gave high courts more tools to control their operations and advance their interests. The supervisory power is one such tool and, as Part II shows, courts have used it beyond its routine administrative applications to make and shape policy across a range of contexts. This policymaking dimension of the supervisory power implicates a host of theoretical and normative questions.

This Part works through the major threads of those analyses. Conceptually, this Article’s account of the supervisory power suggests a more active role for courts within the state policymaking apparatus in which they operate as equal partners with the other branches to advance the state’s general welfare.²⁹⁰ The supervisory power provides high courts with a more precise and flexible tool to contribute to a state’s ongoing governance project. To be sure, this account of a supreme court’s role raises normative questions related to the legitimacy of judicial policymaking. While a comprehensive theory of interbranch relations is outside the scope of this Article, Part IV.B engages with some of the primary critiques of judicial lawmaking. In brief, the institutional assumptions that animate these important arguments do not map so easily onto the separation-of-powers principles at the heart of state constitutions, nor the institutional assumptions that underlie how state judicial power is allocated.

A. Theoretical Implications

At a basic level, the supervisory power provides an additional tool for supreme courts to actively participate in state governance, within adjudication and outside of it. While the power can perform that function across a range of applications, its capacity to provide signaling, facilitating, and coordinating functions is especially important.²⁹¹

As a signaling device, supreme courts can call on the other branches to take action or they can share their perspectives on the underlying legal or policy issues outside of the strictures of ordinary constitutional litigation. For example, by enhancing constitutional values via procedural rules,²⁹² courts can share concerns regarding law enforcement tactics without barring the behavior entirely as an “unreasonable search” or “cruel and unusual punishment.” Similarly, an area of law or policy might benefit from the unique tools and institutional capabilities of the legislature, but various exigencies or other factors may necessitate a temporary solution. Here, too, courts can signal the policy gap for the legislature and offer an initial solution that reflects the judiciary’s perspective and expertise.²⁹³

The supervisory power similarly enables courts to operationalize and facilitate policies crafted by other branches. The decision by New Jersey’s high court to fashion a framework implementing the governor’s prisoner release policy during the pandemic is illustrative.²⁹⁴ There, and in similar examples, high courts invoke the supervisory power to effectuate the policy choices other branches have codified.²⁹⁵

Supreme courts can also coordinate actions between and among the branches towards effective governance. Consider again the Arkansas Supreme Court’s decision to bring the branches together to redraft the state’s criminal code from the ground up, or consider the California Supreme Court’s Collaboration on Mental Health Issues that resulted in related legislation.²⁹⁶ High courts across the country have similarly relied on their supervisory power to engage the other branches and channel their collective roles towards a specific policy goal.²⁹⁷ These examples demonstrate how the supervisory power enables courts to help harness the state’s full policy capacity towards a shared objective, or at least provide a venue to align on what those shared objectives are.²⁹⁸

These features illustrate some of the ways in which the supervisory authority empowers courts to contribute to state governance by engaging with other branches. Part II illustrated how supreme courts can make policy directly, in adjudication and beyond it. Together, we see how the supervisory power expands a supreme court’s policymaking capacity beyond the binary means afforded by judicial review. These applications of the supervisory power highlight a distinctive role for high courts in state governance, thus raising broader implications for allocation of powers and interbranch dynamics.

Some recent work on state separation-of-powers principles suggests that a core commitment at the heart of state constitutions is effective government. Scholarly accounts have observed that state constitutional structure favors practical over theoretical conceptions of institutional relations.²⁹⁹ John Devlin, for instance, has argued that the distinctively mixed design of state government also suggests state constitutional structure prioritizes pragmatism and practice over political theory.³⁰⁰ This work rejects generic notions of government structure and institutional assumptions based on the Federal Constitution. Instead, scholars have elaborated on the significance of the unique structural arrangements and deliberate design choices in state charters.

This work frames state interbranch relations almost exclusively around conflict and contestation.³⁰¹ But as Jonathan Marshfield has shown, a Madisonian theory of separation of powers finds little purchase in state constitutions.³⁰² In other words, the notion that “ambition can be made to counteract ambition” between the branches is not the organizing principle behind state institutional structure. Rather, Dan Rodriguez has suggested that the core commitment that animated modern state constitutional development is good government.³⁰³ People prioritized a structural regime that is “pragmatic” and can provide for their general welfare.³⁰⁴ Part I explored this reorientation in the specific context of court reform—it was a catalyst for the

supervisory power—but Rodriguez shows it applies across the entire constitutional structure.

Developing conceptions of interbranch relations that prioritize conflict or minimize collaboration leaves this core aspect of state constitutional structure undertheorized. To be sure, friction and “showdowns” are inevitable (and perhaps desirable).³⁰⁵ But developing conceptions of interbranch relations that focus on contestation limits the explanatory value of such theories and points towards a parochial conception of state constitutional structure.³⁰⁶

This Article’s account of the supervisory power helps widen our lens accordingly and lays the groundwork for a more fulsome analysis of interbranch relations that elevates the role of cooperation.³⁰⁷ It demonstrates some of the ways the supervisory power can serve as a tool for courts to contribute to the governance process through expanded policymaking,³⁰⁸ filtered through the judiciary’s institutional expertise and distinctive political incentives (i.e., their zone of supervision).³⁰⁹

B. Normative Implications

With this conceptual analysis in mind, we might ask then what we should make of the supervisory power. As discussed above, and noted throughout the Article, the supervisory power implicates foundational questions of state judicial power and role. Absent a comprehensive theory of state courts, though, we cannot fully evaluate the supervisory power’s normative implications. Thus, in working through the primary themes of that analysis, this Section’s discussion is accordingly tentative and brief.

We might fairly describe the supervisory authority as a judicial policymaking tool. As noted in Part II, the power plays a direct (e.g., ad hoc procedural rulemaking) and indirect (e.g., reaching a constitutional issue no party raised) part in enhancing a court’s capacity to make and influence state policy. To evaluate such aspects of judicial power, the courts’ literature often inquires as to whether courts are wielding the proper power and whether they are using it appropriately.³¹⁰ This is a vast literature that spans disciplines from law to social science, but two variables common to analysis along these lines are legitimacy and a court’s proper role.

It is fairly uncontroversial to say that American constitutional governance entails some level of judicial policymaking.³¹¹ What is typically contested is how much is too much. Robert Kagan famously offered an institutional frame he termed “adversarial legalism” to help critique what he saw as an overreliance on courts as policymakers.³¹² The thrust of Kagan’s nuanced argument against a broader vision of judicial policymaking is that American litigation is overly formal and participatory, which narrows the inputs and available tools for courts, creates higher political and economic costs, and as a result is generally less desirable than less court-driven alternatives.³¹³

This critique of judicial policymaking is worth considering. However, I think the account of the supervisory power sketched here, and the broader institutional assumptions it brings with it, undermine or perhaps even obviate some of the concerns Kagan’s theory advances. In brief, Kagan’s critique assumes judicial policymaking comes exclusively through adjudication—indeed it is in the very name of his concept (adversarial). But as discussed in detail in Part II, that is not the case with the supervisory power. It can and does operate outside of the confines of adjudication.

In this way, the supervisory power pushes court authority closer to what Kagan sees as an idealized notion of “bureaucratic legalism.”³¹⁴ In this non-adjudicative context, many of the formalities associated with adjudication—rules of evidence, civil procedure, etc.—are not applicable. Instead, the process is substantially less formal, bringing judicial interventions closer to what Kagan sees as a normatively desirable government concept he terms “political and expert judgment.”³¹⁵

And yet, even when courts do rely on the power in the course of resolving a dispute, it can overcome many of what Kagan sees as the problems with making policy through adjudication. Specifically, the structure of adjudication and corresponding formality of procedural rules results in parties seeking broad policy outcomes under the guise of narrow, highly technical legal questions. Here, too, this Article’s account of the supervisory power can address some of these critiques of judicial policymaking. For example, high courts can and do rely on the authority to reframe or expand the questions presented, override otherwise rigid procedural rules, and other features that might narrow judicial inputs. Further, courts can convene commissions or task forces to operate as enhanced evidence-gatherers to supplement a lone appellate record and better inform their decision-making.

As discussed above, the supervisory power helps illuminate the institutional posture of state high courts and the ways that they challenge some of the background assumptions we typically assign to “courts.”³¹⁶ Kagan’s critique further sharpens that point: generic concepts of what courts do do not map so easily on to state courts; and, with that, nor do some of the normative arguments against robust judicial policymaking roles in governance.

The supervisory power may also have normative consequences for a high court’s legitimacy.³¹⁷ The legitimacy of judicial policymaking is the subject of rich literature, but scholars’ central theses generally focus on the concept of unaccountable institutions wielding purely discretionary power to issue sweeping, final rulings on consequential issues of social policy.³¹⁸ In short, the legitimacy considerations turn on institutional aspects of courts and the nature of the power they wield.³¹⁹

As to structural factors, policymaking by courts is thought less legitimate because of how power is allocated between and among the branches. As courts wield their power in ways that look less and less like interpretation and adjudication, some scholars suggest we should be increasingly skeptical, since constitutional design is said to leave lawmaking to the other branches.

These are important considerations, but we should consider them in light of state constitutional structure. As Neil Komesar has shown, institutional evaluation does not proceed in a vacuum.³²⁰ In other words, a narrower view of state court power—that is, rejecting the account of supervisory power advanced in this Article as normatively undesirable—will likely result in enhancing legislative and gubernatorial power. Passively redistributing authority this way towards a generic equilibrium would be generally inconsistent with the deep skepticism of policymaking by legislatures and executives that animated modern constitutional development.³²¹ It could disrupt the allocation of policymaking directed to the judiciary. In short, state constitutional structure perhaps invites more judicial policymaking than our generic conceptions of institutional roles allow.

Moreover, the accountability of courts (or lack thereof, as is often the case at the federal level) often provides a basis for evaluating the legitimacy of their power. As discussed above, and well established in the literature, state courts are more democratic, more accountable, and subject to more horizontal checks than their federal counterparts.³²² For these reasons, normative critiques of judicial policymaking generally do not map well onto state courts, as these arguments are generally tailored to federal features (e.g., life tenure) or universal conceptions of courts.

Beyond these structural elements, normative evaluations of judicial policymaking often focus on the nature of the power itself and the content of the decisions it produces. On the latter, tired rhetoric, like “legislating from the bench” is well known. But it speaks to a more serious concern that courts are straying too far from devices we generally think of as providing some limitations on court power—text, interpretive canons, precedent, etc.³²³

However, these evaluations assume a certain universe of forms of judicial power—largely a binary between constitutional and statutory interpretation. For example, consider the Warren Court’s procedural revolution. The U.S. Supreme Court crafted a host of procedural rules and frameworks that largely enhanced protections for criminal defendants based on its interpretation of the Fourth, Fifth, Sixth, and Eighth Amendments. The critiques of decisions like Miranda and others are that they lack a basis in precedent and their rules cannot reasonably be squared with the underlying text.³²⁴ These cases affected the Court’s legitimacy because for critics, traditional constitutional adjudication required more fidelity to things like text and case law.

The supervisory power, however, is a decidedly different formulation of judicial authority. As discussed in greater detail in Parts I and II, it is ideally situated for the kind of decisional contexts that require more latitude and discretion than might be available under ordinary judicial review. In this way, the power’s very flexibility is what could make it a more legitimate alternative to otherwise conventional methods of power. Indeed, as a distinctive source of authority, the supervisory power offers an additional tool that can serve as an alternative to attempting to craft doctrinal rules or tests based on ill-fitting constitutional text or precedent or engaging in the debates over “lockstepping.”

Further, we might consider judicial policymaking undesirable because the resulting decisions are sweeping and final and often concern consequential issues of social policy. As a general matter, “state judicial review does not have the same finality” as its federal analogue.³²⁵ But more specifically, the supervisory power is understood as even less final than ordinary judicial review. Whereas the latter might be thought of as “a big red stop sign” to the other branches,³²⁶ use of the supervisory power is perhaps better thought of as an invitation to “dance,” as some former chief justices have put it.³²⁷ Indeed, justices have said implicitly and explicitly that a virtue of the supervisory power is its provisional nature.³²⁸ As Chief Justice Ellen Peters put it, relying on “supervisory authority leaves more flexibility for further input from all the interested constituencies.”³²⁹ In these ways, use of the supervisory power does not have the same aggrandizing effects as other formulations of judicial power that are said to risk a court’s legitimacy.

In sum, our evaluation of the supervisory power should account for two considerations. First, our evaluation should consider its potential for courts to advance their prerogatives and conflict with other branches, as well as its potential to facilitate their cooperation and coordination. Second, while the power is broad, flexible, and highly discretionary, it is subject to boundaries and rooted in both text and institutional context of state constitutions.³³⁰ Further, under a closer examination, we see that traditional arguments against judicial policymaking do not readily track the nature of the supervisory power and structure of state constitutions so easily. As a result, our evaluations of the supervisory power should proceed at the retail rather than wholesale levels. In other words, that courts use the supervisory power along the lines sketched in this Article should not per se raise normative problems. Rather, we should take each application on its own terms and consider it in the context of a court’s zone of supervision.

Conclusion

The state supervisory power enables supreme courts to wield conventional forms of their power with fewer constraints and to assert it in seemingly unconventional ways. This Article offers a descriptive and theoretical account of this important aspect of state supreme court practice—as well as a qualified normative defense of it. It shows that the supervisory power is an essential feature of judicial independence and the broader role of state supreme courts as agents of governance. This feature of state high court practice has been an essential aspect of state constitutional structure, before state high courts’ current moment in the spotlight³³¹ and will be after. To overlook this vital feature of state governance comes at our own peril, as state supreme courts are too important—and now more than ever—to overlook.

98 S. Cal. L. Rev. 1543

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Adam B. Sopko*

*Associate Professor, University of Colorado Law School. Aaron Caplan, Zach Clopton, Adam Crews, Colin Doyle, Marcus Gadson, Tara Grove, Andrew Hammond, Jon Marshfield, Tim Mulvaney, Jim

Pfander, Miriam Seifter, Dan Walters, Bob Williams, Abby Wood, Rob Yablon, Quinn Yeargain, and Adam Zimmerman provided helpful comments. The Article also benefited from discussions at the 2025 Emerging Scholars Conference in Public Law and the Brennan Center’s State Constitutions Lab. I am grateful to Wisconsin law students Mary Berg and Charlotte Gude for terrific research assistance. The editors of the Southern California Law Review provided superb editorial assistance. Thanks also to Sarah Alexander for the constant support and Hunter Sopko for the long weekend naps that made this Article possible.

Respecting Listeners’ Autonomy: The Right to be Left Alone

September 2025September 2025Ashutosh Bhagwat*

Introduction

The core of First Amendment free speech doctrine concerns the right of speakers to convey the message of their choice, free of repression or retaliation by the government. In addition, a small but significant body of law also addresses the rights of listeners to obtain access to information and speech in the face of coercive state measures seeking to deprive them of that access. Finally, there is also a well-established “compelled speech doctrine,” which addresses the right of speakers to resist government compulsions to speak—i.e., a right not to speak. This paper considers a question heretofore largely ignored by the courts, which is whether the First Amendment also protects a right against compelled listening.

As it turns out, a right against compelled listening raises complex and difficult questions because such a putative right in fact has two possible aspects to it. The first would be a First Amendment right not to listen that operates against the state, restricting the state’s power to force an unwilling listener to hear the state’s chosen message. Such a right must exist if public discourse among citizens is to play its democracy-empowering role (and also must exist under autonomy-based theories of free speech, for obvious reasons). But it is also, as we shall see, necessarily and distinctly limited.

But the more interesting questions raised by a right against compelled listening concern not disputes between listeners and the state, which are the subject of the classic First Amendment tradition, but rather disputes between non-state speakers and listeners, which the state must somehow accommodate or resolve. In these situations, in short, the question is whether the state may or may not enforce a listener’s desire to be left alone. Furthermore, while disputes strictly between private speakers and listeners of course do not themselves trigger the First Amendment because of the state action doctrine, when the state steps in to resolve those disputes, the First Amendment is very much implicated. This paper’s ultimate goal is to identify the state’s proper and constitutional role in those situations.

Part I briefly summarizes the classic First Amendment rights of speakers to speak and listeners to listen as against state coercion. It then examines the constitutional relationship between speakers, listeners, and their rights. Part II considers whether, just as the right to speak has been interpreted to generate a right not to speak, so too a right to listen should have the converse—a right not to listen. It further explores the two possible aspects of such a “right” described above,¹ and closes by considering the role of the state in the face of speaker versus listener disputes. Finally, Part III considers some doctrinal applications of a listener’s right to be left alone.

I. The Classic First Amendment

In this Part, we will very briefly consider the nature of “classic” First Amendment rights to speak and to listen, as against state coercion. We will then explore the relationship between those rights.

A. Speakers’ Rights and Listeners’ Rights

It is conventional wisdom that First Amendment law focuses almost exclusively on speakers and their “right” to speak, free from state interference. Even those of us who embrace instrumental justifications for protecting free speech, such as advancing democratic self-governance, nonetheless tend to fixate on speakers’ interests in contributing to public discourse when we analyze First Amendment conflicts. Indeed, the bulk of First Amendment doctrine, including the concept of unprotected categories of speech² and the foundational distinction between content-based and content-neutral laws,³ all concern government suppression of speech or speakers (often, but not always, speech or speakers the state dislikes).

One further point about the right to speak that should be a given: the right to free speech under the First Amendment must incorporate a right to generally choose one’s audience (though, of course, like any other right, this right is not absolute and might be outweighed by a sufficiently strong governmental interest). The right to choose an audience is implicit in the Court’s standard test to evaluate content-neutral “time, place, or manner” regulations, which requires inter alia that any regulation “leave open ample alternative channels of communication.”⁴ If such “ample alternative channels” referred to the ability to speak to any audience, the test would have no teeth at all—and that is not the case, as illustrated by numerous cases.⁵ Furthermore, in the leading case dealing with expressive conduct, a topic closely related to content-neutral restrictions on speech, the second Justice Harlan also went out of his way to state that he would not uphold a regulation of conduct with an “incidental” impact on expression if the law “in practice has the effect of entirely preventing a ‘speaker’ from reaching a significant audience with whom he could not otherwise lawfully communicate.”⁶

Admittedly, the courts have not been entirely consistent on this issue. Thus, there are undoubtedly some cases, especially in the lower courts, suggesting that denying a speaker the ability to reach a specific audience need not be fatal to a content-neutral restriction on speech.⁷ But this simply cannot be correct. For example, this would mean that during the 2024 presidential election, a prohibition on the Trump or Harris campaign advertising in a swing state such as Pennsylvania would be permissible if both candidates were permitted to reach alternative audiences in California and Texas. Such a result would make a mockery of the First Amendment (and democracy).

In addition to a right to speak, there is a well-developed body of doctrine protecting the right of listeners to access speech the state wishes to shield them from. The foundational case here is Lamont v. Postmaster General of the United States.⁸ In Lamont, the Court unanimously struck down a federal statute that required the Post Office to block the delivery of material determined to be “communist political propaganda” and only deliver the materials on the written request of the recipient (interestingly, Lamont was the first case in which the Supreme Court invalidated a federal statute on First Amendment grounds).⁹ Crucially, for our purposes, the basis of this holding was not the right of foreigners to mail communist propaganda into the United States, which almost certainly does not exist,¹⁰ but rather the First Amendment rights of addressees to receive information without impediment¹¹—a point Justice Brennan made explicit in his concurrence.¹²

If Lamont marks the origin of listeners’ right in the Supreme Court, their apotheosis occurred a little over a decade later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc.¹³ There, prescription drug consumers challenged a Virginia ethical rule that barred pharmacists from advertising prescription drug prices.¹⁴ Because no pharmacist joined the lawsuit, the Court could only hear the merits if it recognized a First Amendment right on the part of listeners to receive information—which it explicitly did before holding for the first time that the First Amendment protected commercial speech.¹⁵

Finally, one additional case in which listeners’ rights were importantly implicated, though not central to the decision, is Red Lion Broadcasting Co. v. Federal Communications Commission.¹⁶ In Red Lion, the Supreme Court upheld the “Fairness Doctrine,” which was a federal regulation requiring radio and television broadcasters who broadcast a “personal attack” on an individual or group to provide airtime to the subject of the attack to respond.¹⁷ In doing so, the Court emphasized that in the context of broadcasting, because of the “scarcity” of available broadcast frequencies, speakers’ rights could not be the focus of attention.¹⁸ Instead, the Court said, “it is the right of the viewers and listeners, not the right of broadcasters, which is paramount” in assessing First Amendment challenges to broadcast regulations.¹⁹ So, like Lamont before it and Virginia Pharmacy after it, the Red Lion Court appeared to grant constitutional status to the First Amendment interests of listeners. Indeed, Red Lion was cited in Virginia Pharmacy for that proposition.²⁰

B. Of Speakers and Listeners

The Supreme Court has thus recognized robust First Amendment rights for speakers and listeners, but it has largely treated them as distinct rights—no doubt because in the two key listeners’ rights cases, Lamont and Virginia Pharmacy, willing speakers were absent from the litigation. But this approach cannot be correct. After all, what exactly is the point of “speaking” if no one is listening?²¹ It is true that some people keep private diaries or talk to themselves aloud—what is called “intrapersonal communication.”²² But there are reasons to doubt whether such audience-less “expression” falls within the First Amendment;²³ and in any event, it is certainly not the focus of most First Amendment jurisprudence or disputes. Normally, speech is meaningful, whether viewed from an instrumental or autonomy standpoint, if it has an audience. Admittedly, that audience need not be immediate or identifiable to the “speaker”; after all, we still read Shakespeare and Dickens. But reaching an audience is the point of communication. This is why in the area of expressive conduct, the Supreme Court has explicitly said that conduct is expressive—and so potentially protected by the First Amendment—only when “the likelihood was great that the message [intended to be communicated] would be understood by those who viewed it.”²⁴

Of course, in emphasizing the existence of listeners as necessary for speech to be meaningful, I am in some sense preaching to the choir here, since this symposium specifically focuses on listeners. But I would suggest that focusing on listeners in isolation is also a bit myopic, in the same way as a singular focus on speakers. Because just as speaking without an audience is meaningless, so too is listening without a speaker. What does it mean to speak about “listeners” and “listeners’ rights” while ignoring who the listener is listening to—who, in short, the speaker is? Yet in the few contexts in which the Supreme Court has actually considered listeners’ interests in First Amendment cases, that is largely what it has done.

Consider in this regard Virginia Pharmacy. The Court’s holding in that case that the First Amendment protects recipients of speech/information rather than just speakers, is now well-accepted; but in the context of that case, it is a bit odd. In recognizing the rights of recipients of information, the Court added a caveat that such rights exist “where a speaker exists, as is the case here,” citing to one page in the Stipulated Facts to support this assertion.²⁵ But given that pharmacists had not chosen to join this lawsuit and in fact had obvious, anticompetitive reasons to avoid advertising prices so long as their competitors did the same, the Court’s assumption that willing speakers already existed seems unjustified. Admittedly, once the advertising ban was struck down, it was likely that some pharmacists would choose to advertise drug prices, but whether that would benefit any individual plaintiff/listener was far from clear absent widespread advertising of drug prices.

The Court did somewhat better in analyzing the relationship between speakers and listeners in Red Lion. Unlike in Virginia Pharmacy, there is little doubt that Red Lion involved willing speakers—in the shape of the broadcasters themselves (the plaintiff in the case was, in fact, a broadcaster²⁶)—who would communicate to listeners/viewers. But by failing to seriously analyze both listeners’ and speakers’ interests and incentives in assessing free speech issues, the Red Lion Court created a conundrum. The Fairness Doctrine may have, in theory, advanced broadcast audiences’ interest in receiving balanced coverage of public issues, but it also incentivized broadcasters to avoid taking strong editorial positions on public issues other than anodyne centrist ones. Moreover, it disincentivized coverage of public issues in favor of generic entertainment, in order to avoid the strictures of the Fairness Doctrine.²⁷ But faced with this argument, the Court simply (and rather naively) deferred to the FCC’s views that the “possibility [of any such incentive effect] is at best speculative.”²⁸ Yet less than two decades later the FCC itself, in the course of repealing the Fairness Doctrine, concluded that the doctrine did in fact create substantial “chilling effects” because “the fairness doctrine provides broadcasters with a powerful incentive not to air controversial issue programming.”²⁹ Of course if this was true—as is likely—then without speakers, listeners during the Fairness Doctrine era were necessarily left (so to speak) in the dark regarding public policy controversies. So again, by failing to seriously analyze both sides of the communicative relationship, the Court effectively harmed both speakers and listeners.

The point of this discussion is not to suggest that listeners/audience members lack meaningful First Amendment interests—of course they do. It is merely to suggest that discussing listeners’ interests and “rights” without also considering who the relevant speakers might be produces a deeply incomplete, and sometimes meaningless analysis. Expression, in short, is not a solitary activity on either side of the speaker/listener coin. It is a joint activity, a form of interpersonal interaction or association between speakers and audiences. It is relational in nature. The First Amendment, after all, does not protect “the right to speak” or “the right to listen;” it protects “the freedom of speech.”³⁰ By focusing on individual “rights,” however, whether of speakers or listeners, courts and commentators have failed to recognize the relational nature of that freedom.

II. A “Right” Not to Listen

Until now, we have generally considered the nature of First Amendment speakers’ and listeners’ rights and their interrelationship with each other. We will now apply those insights to considering what exactly it is that the First Amendment protects vis-à-vis listeners, focusing in particular on a putative right to not listen to unwanted speech.

In considering this issue, it is important to bear in mind a structural point. Most First Amendment law addresses the relationship between speakers or listeners on the one hand, and the state on the other. The question in those cases is what limits there are on the state’s right to coerce speakers or listeners. That is where our discussion will begin, by examining rights not to speak, and not to listen, as against the state. But for reasons already discussed, “the freedom of speech” also implicates another key relationship: that between speakers and listeners. Important and difficult First Amendment questions arise about the nature of and limits on the state’s power to regulate that relationship. These are the topics of Parts II.B and II.C.

A. Converse Rights: Speakers and Listeners v. The State

As we have seen, the First Amendment famously protects the right of speakers to express the message of their choice, free from state interference. But the Court has also interpreted the First Amendment to protect a converse right—to not be compelled to speak against one’s will.³¹ The right against compelled speech was first recognized in the Supreme Court’s famous decision in West Virginia State Board of Education v. Barnette,³² in which the Court struck down a requirement that public school students participate in a flag salute that was challenged by school children whose beliefs as Jehovah’s Witnesses forbade them from participating. Barnette thus established that the positive First Amendment right to speak was paired with a negative right not to speak.

While the right against compelled speech was originally a relatively narrow and circumscribed right, in recent years, the Supreme Court has expanded its scope significantly. For example, in the 2018 case National Institute of Family and Life Advocates v. Becerra (“NIFLA”), the Court invoked the right to strike down a California statute that required so-called “crisis pregnancy centers”—medically licensed facilities run by abortion opponents who provide medical services to pregnant women—to post notices informing patients that the State of California provided funding for low- or no-cost abortions (and other family planning services) to eligible women.³³ While the NIFLA case raised many complex issues, such as whether “professional speech” received lesser First Amendment protection,³⁴ the core holding was that the required notice violated the First Amendment.³⁵ Importantly, in NIFLA, the majority blurred the distinction between the positive right to speak and the negative right against compelled speech, by holding that “compelling individuals to speak a particular message . . . ‘alte[rs] the content of [their] speech.’ ”³⁶ As such, the Court suggested that in future compelled speech cases it would apply strict scrutiny, the test it uses for content-based restrictions on speech—something the Court had not done with any consistency prior to NIFLA.³⁷

Another even more striking example of the extension of the compelled speech doctrine is 303 Creative LLC v. Elenis.³⁸ In that case, the Court held that a wedding website designer could refuse to work for same-sex couples, in violation of state antidiscrimination law, because to force her to do so would “compel speech [the designer] does not wish to provide.”³⁹ Thus, even in a situation in which a person is engaging in a commercial enterprise and providing services for payment, the Court has found that the compelled speech doctrine provides robust protections.

Of course, even in the current era, the right against compelled speech is not absolute. Most notably, the Court has indicated that in the context of commercial transactions, the First Amendment does not prohibit requiring “the disclosure of ‘purely factual and uncontroversial information about the terms under which . . . the services will be available.’ ”⁴⁰ More broadly, the Court has said that “health and safety warnings long considered permissible” remain constitutional⁴¹ and that the speech of professionals may be regulated as an incidental aspect of regulating professional conduct.⁴² In these contexts, current doctrine recognizes that listener interests can sometimes trump a speaker’s interest against compelled speech. But in the realm of ideological and cultural speech, the Court’s rule against compelling expression has come to be well-nigh absolute.

Given the robustness of the modern right against compelled speech, should the First Amendment also be understood to protect a robust right not to listen? Given the general symmetry between speaker and listener rights and their interlinked, relational nature, the answer would seem to be yes. Once the relational nature of “freedom of speech” is recognized, there is no logical reason to grant speakers greater rights than listeners; they are, after all, engaged on equal terms in a joint project—though, to my knowledge, the Court has never addressed the issue.

Moreover, not recognizing a right not to listen would have catastrophic implications for both autonomy-based and instrumental understandings of the purpose of free speech protections. The autonomy point is obvious—it is hard to imagine a greater intrusion on autonomy than forcing an individual to listen to speech they wished to avoid. But the implications for instrumental, democracy-based models of free speech are equally obvious. After all, if an incumbent government party or official can force voters to listen to the party’s propaganda but not their opponents’ propaganda, it is hard to imagine how any subsequent political election could be deemed fair or legitimate. More fundamentally, the shape and content of the public discourse essential for democracy must be under the control of the public, not the government, if popular sovereignty is to have any meaning.

It should be noted, though, that in practice, a right not to listen as against the state, while it must be real and robust in certain spheres—notably public discourse—has significant limits. The government in fact forces us to listen to messages of its choosing all the time as a condition of engaging in certain activities—often while also compelling the relevant speech. Every time one gets on a plane, one is forced to listen to a federally mandated safety announcement (and airlines are required to communicate them). Employees are forced to suffer through state-mandated trainings, such as sexual harassment trainings, all the time (and employers are required to provide them). My own employer, the University of California—a state entity—is particularly training-happy. Safety instructions are required for employees in many hazardous industries—and so on ad infinitum. But within the core First Amendment domains such as public discourse and artistic/literary expression, a very strong right not to listen—which can be offset only by the weightiest state interests—must exist. The only reason it has not been recognized, it would seem, is that governments appear to assume the existence of such a core right and so stay clear of it.

B. Relational Rights: Speakers v. Listeners

While a right not to listen as against the state seems clearly justified by basic First Amendment principles, much harder questions arise when we consider the nature of a right to be left alone in the context of the relationship between speakers and listeners. If individuals have a right not to listen to a message the state seeks to foist on them, what about a message that a private speaker wishes to force them to absorb?

Four Scenarios

To understand the nature of the relationship between speakers and listeners, it is worth considering four different scenarios. In the first, both speaker and listener are willing, and wish to communicate. That is the core of First Amendment law, in which the only question is state power to coerce—when coercing either speaker or listener necessarily coerces the other. A second scenario is when neither speaker nor listener is willing or desirous of communicating. In that situation, state interference would be fairly bizarre, except under specific regulatory circumstances, such as safety videos on airlines or workplace trainings, both situations in which neither the speaker nor listener has a choice not to participate. Indeed, the fact that we sometimes compel both speech and listening is a further indication of how speaker and listener interests are intertwined.⁴³

The difficult question arises when speakers and listeners disagree. When a listener wishes to hear a message but a speaker does not wish to speak, the compelled speech doctrine, when applicable, prevents the government from intervening on behalf of listeners. Of course, the compelled speech doctrine does not always protect speakers. As noted earlier, within the commercial sphere, disclosure requirements are ubiquitous and intended to protect listeners—presumably McDonald’s doesn’t really want to tell customers how many calories are in a Big Mac, no matter how much the customers need or want to know. But in the sphere of political and cultural speech, the speaker’s wishes will generally prevail given the strength of the modern compelled speech doctrine.⁴⁴ Nor of course can listeners engage in self-help, since physically forcing another to engage in expression is generally tortious and/or criminal conduct.

But what about the opposite situation, when a speaker wishes to speak, but their chosen audience does not want to hear their message? In that situation, does the listener have a comparable ability not to listen, as the speaker does not to speak? Note that unlike forcing someone to speak, addressing words at an unwilling listener is not inherently illegal or tortious, so speakers can—and often do—engage in “self-help” in those circumstances by foisting unwanted speech on listeners. The question is: what is the appropriate role of the government, and in particular, can the state protect listeners from unwanted speech? Oddly enough, the Supreme Court has barely addressed this question directly, and insofar as it has done so, it has suggested that the answer is no by giving little weight to listeners’ interests.⁴⁵

The most significant case to this effect is Cohen v. California.⁴⁶ In Cohen the Court, in a famously eloquent opinion by Justice Harlan, reversed Cohen’s conviction for wearing a jacket into a courthouse with the words “Fuck the Draft” written on it.⁴⁷ The case is generally understood to hold that non-obscene but offensive or indecent speech is protected by the First Amendment. But in the course of so holding, the Court had to address the objection that Cohen had “thrust [his speech] upon unwilling or unsuspecting viewers” and that the government had the right to shield that audience from offense.⁴⁸ The Court’s response was that absent an “intrusion in to the privacy of the home,” the only remedy for offended viewers was “averting their eyes.”⁴⁹ The Court failed, it should be noted, to explore how that remedy would work with respect to oral speech.⁵⁰

A more recent decision involving highly offensive speech, Snyder v. Phelps,⁵¹ adopts a similar tone. In Snyder, members of a church (the Westboro Baptist Church of Topeka, Kansas) repeatedly protested at military funerals to publicize their belief that God was punishing the United States for its tolerance of homosexuality, especially in the military.⁵² After one such protest, the father of the fallen soldier whose funeral the church picketed sued the church and its members for intentional infliction of emotional distress and after trial, won a significant verdict.⁵³ But the Supreme Court, by an 8-1 vote, reversed. It held that because the protesters’ speech was “on a matter of public concern,” the First Amendment flatly precluded imposing liability based on the offensiveness or hurtfulness of the speech.⁵⁴ And crucially for our purposes, when confronted with an argument based on the enormous (and uncontested) emotional harm that the protesters’ choices imposed on the father, the Court responded as follows: “But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a ‘special position in terms of First Amendment protection.’ ”⁵⁵ In other words, the Court’s view was that at least in the public forum, the rights of offensive speakers almost always trump those of offended listeners. Nor are Cohen and Snyder alone in holding that at least in public places, offended audiences must bear the significant burdens and costs of offense.⁵⁶

The only nod the Court has given towards the notion that audience members have some interest in avoiding unwanted speech can be found in the so-called “captive audience” doctrine. In theory, the captive audience doctrine provides that when speech is being forced upon listeners who cannot reasonably avoid it, the government may step in and silence the speech.⁵⁷ And famously, in 1974 in the Lehman v. City of Shaker Heights decision, the Court—albeit in a splintered opinion—applied that doctrine to uphold a municipal regulation that refused to accept political advertising in the interior of buses and street cars, even though other advertising was accepted.⁵⁸ But in fact, a closer look shows that since 1974, the so-called “captive audience” doctrine is more bark than bite.

It is true that in a handful of cases, the Court has invoked concepts of captive audiences to uphold restrictions on speech. Thus in Rowan v. United States Post Office Department, the Court cited the captive audience doctrine in upholding a law that permitted mail recipients to refuse to accept more mail from a particular sender.⁵⁹ Similarly, in F.C.C. v. Pacifica Foundation, the Court justified a restriction on daytime broadcasts of “indecent” materials in part on the theory, citing Rowan, that broadcasting invades the home.⁶⁰ And perhaps most famously, in Frisby v. Schultz, the Court upheld a municipal prohibition on targeted, residential picketing on the basis of the state’s strong interest (citing both Rowan and Pacifica Foundation) in shielding individuals from unwanted speech in their homes.⁶¹ However, all of those cases involve the home, where special privacy considerations (quite aside from the First Amendment) obviously exist. Outside of the home, Lehman remains the only significant precedent applying concepts of “captive audiences,” and truth be told under the modern (post-1974) public forum doctrine, concepts of captive audiences are likely unnecessary to uphold the City of Shaker Heights’s subject-matter-based, but viewpoint-neutral, restriction on speech in a nonpublic or limited public forum.⁶²

The Court’s decision in Snyder also supports the proposition that the captive audience doctrine has, in recent years, been limited to the home. When the plaintiff in Snyder raised a captive-audience argument in favor of restricting the Westboro Baptist Church’s funeral protests, the Court dismissed the idea that a father might be a captive audience at his son’s funeral by invoking Cohen’s holding that the burden was on Mr. Snyder to “avert[] his eyes.”⁶³ When posed with a captive-audience argument, the Snyder Court strongly suggested that that doctrine was largely restricted to speech intruding into the home, citing Rowan and Frisby.⁶⁴ It is true that in its discussion the Court also referred to the fact that when driving to the funeral, Snyder could only see the tops of Westboro’s signs;⁶⁵ but, there is no indication in the Court’s opinion that the result would have been different if Snyder had seen the signs, so long as the Westboro demonstration did not actively interfere with or disrupt the funeral.

Why is it that a Court that is so ready to recognize a robust right not to speak—one that operates against the state and listeners—seems to be unaware of the possibility of a similar right not to listen (at least outside the listener’s home) as against insistent speakers? The answer, I would posit, lies in the much-neglected interaction between speakers’ and listeners’ rights. In particular, recognizing a right not to listen raises the problem of how to reconcile a speaker’s interest in reaching a particular audience, with a listener’s interest in not being part of that audience. Moreover, the leading scholarly discussion of a putative right not to listen similarly adopts a unilateral rather than a relational approach.⁶⁶ In that article, Caroline Mala Corbin makes a compelling case, based both on the autonomy interests of listeners,⁶⁷ and on more instrumental concerns about democratic self-governance,⁶⁸ for a First Amendment right not to listen, and I am happy in this article to accept and build upon that analysis. But she does not address the implications of such a right for the corresponding rights of speakers, or the relationship between what she treats as independent rights of speakers and listeners. We will therefore turn to that issue next.

A Right to Be Left Alone

In evaluating the nature of a right not to listen as against speakers, the crucial initial insight is that when a listener positively objects to being exposed to the speaker’s message, a conflict arises between a speaker’s right to choose her audience, and a listener’s right to choose her speakers/messages. In that situation, the Supreme Court, in cases such as Cohen and Snyder, seems to assume that unless the speaker and speech are intruding into the home, a speaker’s interest in expounding her message to any and all must prevail over a listener’s desire to not listen, and to be left alone. But the Court gives no explanation in any of these cases for why this is so, other than generalized references to the need for robust public discourse. And because the Court has never addressed, much less recognized, a right not to listen outside the home, it does not seem to realize that the situation potentially poses a problem of competing constitutional interests, not just a speaker’s right prevailing over general societal interests. But in fact, for all the reasons already stated there are strong reasons to recognize constitutionally grounded listeners’ interests in such contexts, which makes some effort towards reconciliation necessary.

In seeking to reconcile speakers’ and listeners’ rights when they potentially conflict, it is absolutely essential to recognize the deeply interrelated nature of those rights—something the Court has failed to do. As discussed earlier, speakers and listeners are just two sides of the same expressive coin; indeed, it might be said that there are not two rights at issue here, but rather one joint right to engage in/receive expression. But as in so many other situations, when joint rights holders—or for that matter, joint property owners—disagree, resolving such conflicts is extremely difficult.

Nonetheless, recognizing the joint roles of speakers and listeners in expression does lead to some important insights. Most importantly, recognizing the relational nature of freedom of speech strongly suggests that there is little to no social value associated with speakers who address specific listeners against their will. But even here, an important distinction must be made. When unpopular or even deeply offensive ideas are expounded as a part of what I will call “one-to-many” speech, which is to say speech that is available to the public or significant portions of it,⁶⁹ speakers’ rights must normally prevail over listeners’ rights.⁷⁰ The reason is that in that situation, permitting listeners to prevail would scrub public discourse of unpopular ideas, a result which is anathema to the First Amendment. Put differently, permitting individual listeners to invoke a right not to listen to shut down one-to-many speech would amount to an impermissible heckler’s veto.

The analysis is very different, however, when dealing with one-to-one or one-to-a few speech. When speakers address unwilling, individual listeners who have expressed their desire not to be spoken to, the primary goal of continued speech is often no longer to convince or to add to the putative “marketplace of ideas.” It is rather to inflict harm on the listener/victim. As such, it has no legitimate claim to First Amendment protection in light of the greatly diminished speaker interests and very strong listener interest in not listening. It is this principle that led the Court to uphold a ban on targeted, residential picketing in Frisby v. Schultz, while clarifying that a ban on non-targeted residential picketing would almost certainly be invalid.⁷¹ The Court seemed to be assuming, reasonably in my view, that targeted picketing was overwhelmingly likely to be one-to-one speech, while nontargeted picketing was one-to-many. Its error was to assume in Frisby and other captive audience cases that a listener’s interest in avoiding one-to-one speech is limited to the home.

The very idea that speakers have some sort of First Amendment right to thrust their speech on unwilling listeners is based on a rigid, “individual rights” based approach to First Amendment analysis, which does not sufficiently account for complexity. Once one recognizes the interpersonal and associational nature of communications as a joint enterprise between speaker and audience, it should be obvious that no speaker has a “right” to thrust their views on unwilling audience members any more than an individual has a right to insist on joining a First Amendment association in which they are not welcome.⁷² To posit such a right—as the Supreme Court appears to in cases like Cohen and Snyder—is to posit a personal right on the part of individuals to try to persuade or convert other individuals to the speakers’ beliefs against their will, not as a part of public debate and discourse, but as a part of a personal conversation.

But where could such a right possibly arise from? If, as I have posited, the “freedom of speech” protected by the First Amendment is an interpersonal, relational concept, then the right surely does not arise from the First Amendment. After all, we do not understand any constitutional right to encompass an entitlement to coerce others—the Second Amendment may protect gun ownership,⁷³ but it does not protect the stick up. And it must be remembered that the First Amendment only protects speakers from censorship or silencing by the state, not from censorship by other private individuals.⁷⁴ Recognizing this seemingly mundane point, however, points a way towards how we might reconcile a posited right to be left alone with a speaker’s right to their chosen audience, all the while bearing in mind important First Amendment limits on state power.

C. Reconciliation: The State as Referee

What then, is the role of the government when a speaker seeks out a specific audience, but that audience is not willing to listen? And in particular, because (as noted earlier) listeners have a limited ability to engage in self-help (at least outside the home) vis-à-vis a persistent speaker, is there a role for the government in empowering unwilling listeners?

In that regard, one conclusion follows easily from basic First Amendment principles. Because “above all else, the First Amendment means that the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,”⁷⁵ it is clear that the government may not itself decide, purportedly on behalf of unwilling listeners, that speech of a specific content or viewpoint will be unwelcome. That role lies solely with the listeners themselves, and for the government to take on the role of proxy censor could very easily become a vehicle for censoring speech the government itself disfavors. Indeed, even when empirically it seems very likely that a targeted audience will not want to be exposed to particular speech—for example, anti-abortion speech directed at abortion clinic patients, or anti-military protests directed at attendees at a military funeral—it remains true that the government’s role cannot be to silence the speech on the assumption that it will be unwelcome. This is why the rule against content discrimination remains in place, and should remain in place, even in particularly sensitive situations such as the home, reproductive health care facilities, and funerals.

That said, however, once one recognizes that speakers have no First Amendment right, free of government regulation, to foist themselves upon unwilling listeners—and indeed, that listeners do have legitimate interests in avoiding undesired speakers or content—it seems clear that the government has a legitimate role to act as facilitator, assisting listeners to invoke their “right” to be left alone—or perhaps better put, their desire not to engage in a communicative relationship with a particular speaker. For that reason, there should be no constitutional problem with the state creating mechanisms that enable listeners to communicate to speakers that they desire to be left alone. There should also be no First Amendment barrier, assuming the listener(s) do invoke their First Amendment interest in being left alone, to the government penalizing a speaker who nonetheless persists in pursuing their unwilling victims. In that situation, the speaker has no First Amendment rights at stake, so a penalty is perfectly constitutional.

To be clear, the government has no obligation to create such a mechanism. Since unwilling listeners have no First Amendment rights against private speakers, they have no constitutional claim to be left alone. But what should be recognized is that in the context of willing speakers and unwilling listeners, or vice versa, given the relational nature of the “freedom of speech,” neither party has a constitutional right at stake, and so some forms of government interventions should not be barred.

Putting this insight in doctrinal terms argues for the courts to recognize a separate category of unprotected speech that is based not on the unprotected content of the speech (as with obscenity, “true threats,” etc.), but on the fact that it is foisted (exclusively) upon unwilling listeners after they have invoked their desire not to listen. Whatever one calls this category—harassment, stalking, or something else—it would permit punishment by the state purely upon proof that the speaker was made aware of their audience’s desire not to listen but nonetheless continues to communicate.

Needless to say, however, for reasons already discussed, any mechanism designed to protect listeners’ desires to be left alone cannot be invoked in one-to-many speech situations, in which there are other, willing listeners in the broader audience who would be deprived of their access to speech. In this situation, “freedom of speech” does exist, and so silencing the speaker will violate both the speaker’s and the willing listeners’ First Amendment rights. And because the First Amendment presumptively favors speech over silence, it clearly cannot permit letting some unwilling listeners’ rights to trump two other sets of rights.⁷⁶ Note that with respect to speech occurring in open public dialogue, such as public protests or speech in the media (including social media platforms), there will essentially always be some willing listeners in the audience, and so recognizing a right to be left alone would never result in suppressing such speech. In other words, recognizing a constitutionally based interest in being left alone has little or no implications for broad, public debate. Importantly, this ensures that all individuals, even the most irascible, will regularly be exposed to viewpoints they reject, and so will have the opportunity to change their minds.

Note that under this view, Snyder v. Phelps was correctly decided. The speech in that case, a public protest by the Westboro Church was a form of one-to-many speech, not speech directed solely or mainly at the victim. Indeed, as noted earlier, the plaintiff in that case, the grieving father, did not even see the signs at the time of the protest.⁷⁷ In that situation, it was impermissible for the state to silence the speakers in order to protect Snyder’s desire to be left alone, because the result would be to silence protected speech as to other listeners. The Pacifica Foundation Court, however, was wrong to uphold the FCC’s restrictions on indecent broadcasting, at least insofar as it relied on the existence of unwilling listeners, because radio broadcasts are a classic form of one-to-many speech (whether protecting children might separately support the rule is a different matter).

Therefore, a right of listeners to be left alone should not impact public debate or cleanse it of unpopular or offensive ideas. In the context of privately communicated speech, however, the implications of the above analysis are significant. It means that individuals who insist on repetitively speaking to their chosen audience/victim(s) after the listener has invoked their right to be left alone have no First Amendment rights—and so can be prosecuted without raising constitutional concerns. It also means that in a myriad of other situations in which the Court has suggested that the burden must be on listeners to avert their eyes, move on to another place, or simply suffer, the state has a legitimate role to play in reducing that burden so long as it does not impact public debate.

Developing a specific legislative proposal for how state or federal laws might assist unwilling listeners in protecting their desire to be left alone is beyond the scope of this paper. It should be noted, however, that some such mechanisms already exist and have been endorsed by the courts—though they all, unsurprisingly, involve the home. Thus in Martin v. City of Struthers, the Court struck down a city ordinance banning the door-to-door distribution of literature, primarily on the grounds that the city could have achieved its goal of protecting tranquility in the home with narrower means such as a model ordinance that “would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed.”⁷⁸ This approach was preferable, the Court said, because such a law “leaves the decision as to whether distributors of literature may lawfully call at a home where it belongs—with the homeowner himself,”⁷⁹ which in the language of this essay means in the hands of the unwilling listener. The Court’s decision in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, recognizing a home “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors,”⁸⁰ is to similar effect. The ordinance upheld in Rowan⁸¹ permitting mail recipients to refuse to receive additional mail from unwanted mailers is as well.⁸²

It is true, of course, that it is much easier to put up an outdoor “No Solicitation” sign at one’s home—the remedy endorsed in Martin and Watchtower Bible—than in public places. But given the above analysis, there is no good reason to limit the principle established in these cases to the home. Moreover, it is not hard to imagine a law stating that when an individual is addressing another and the listener uses unambiguous language indicating an intent to be left alone, such as “please stop talking to me,” “I don’t want to hear this,” or “leave me alone,” the speaker then will have a legally enforceable obligation to stop speaking to that individual (but not to others, so in one-to-many situations this law would have no impact).

Some clarifications are necessary, however. First, at least outside of the home, invoking the right to be left alone cannot be indefinite—any statute protecting that right must specify a time period after which the invocation expires and has to be re-invoked.⁸³ That caveat, like the continuing protection for one-to-many speech, leaves open the possibility that unwilling listeners can and will sometimes change their minds. Further, the period after which invocation by unwilling listeners expires may well vary with circumstances—and again, any statute addressing this issue must specify that. And in this respect, homes are arguably special. No Solicitation signs outside one’s home constitute essentially permanent invocations—though signs can of course be taken down—as did the request to stop mail upheld in Rowan, though of course that too could be revoked. In some settings such as online interactions, one can imagine invocations lasting for weeks or months. But in personal interactions, it might well be reasonable to require reinvocations every hour or two. Details such as these are for legislatures to work out, the results of which should be due a good deal of deference from courts.

To be sure, in evaluating situations in which a speaker’s desire to communicate collides with their audience’s wishes not to be communicated to, and the state has stepped in to protect the listener, courts must tread with caution, bearing in mind the following considerations. First, it is inevitable that the government—in the shape of both legislatures and executive enforcers—will sometimes manufacture unwilling listeners as a tool to silence speech that the government itself objects to. Therefore, courts must examine any listeners’ rights laws carefully to smoke out such censorship (most obviously by insisting that the listener, not the state, identify unwanted speech). In addition, courts themselves must be cautious to not permit their own instincts as to what constitutes “undesirable” or “offensive” speech to color their decisions, by finding listener objections when none truly exists. Thus courts must insist that any enforcement of a listener’s right to be left alone must be accompanied by a clear and unambiguous invocation of that right by the rights-holder themselves.

In short, there are details to be worked out, and there are undoubtedly complexities raised by attempts to legally empower listeners to avoid unwanted speech, especially outside the home. But the crucial point is that there should be no First Amendment objection to government efforts to so empower listeners—with all the caveats laid out above, including in particular the point about one-to-many speech. There are statutory mechanisms available that could achieve those goals. Indeed, as the next Part discusses, some such mechanisms are already in place whose constitutionality has been questioned but should not be, albeit perhaps after some changes are made to reflect concerns discussed above.

III. Applications

In this Part, we will consider some practical applications of listeners’ rights to be left alone in areas where divisive litigation has been common and courts have struggled mightily to craft consistent and facially plausible solutions.

A. Counterman, Stalking/Harassment, and Fighting Words

The most obvious area in which the above analysis has application is the status under the First Amendment of laws regulating harassment and stalking. The Supreme Court considered this issue in its recent decision in Counterman v. Colorado,⁸⁴ but because the majority completely failed to consider listener interests in its analysis, and as a result failed to distinguish between “threats” cases (which involve the fear of violence) and harassment/stalking cases (which involve unwilling listeners), Justice Kagan’s majority opinion frankly botched the analysis.

Counterman involved a criminal prosecution arising out of a deeply disturbing set of facts. The defendant, Counterman, repeatedly sent Facebook messages to C.W., a local musician whom he had never met.⁸⁵ Some were prosaic, if bizarre (since they were from a stranger), but others were menacing.⁸⁶ Ultimately, Counterman was convicted under Colorado’s anti-stalking statute, the relevant part of which makes it a crime to “repeatedly . . . make any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”⁸⁷ The Colorado courts rejected Counterman’s First Amendment defense on the grounds that his speech constituted unprotected “true threats,” applying an objective definition of a threat as speech which a reasonable person would view as threatening.⁸⁸ The Supreme Court, however, reversed. In a majority opinion by Justice Kagan, the Court held that to prosecute a true threat, the First Amendment required proof of a subjective mental state, in particular recklessness, meaning that the speaker acted with conscious disregard of the risk that the speech at issue would instill fear in the victim.⁸⁹

What is truly odd about this analysis is that Counterman was not actually a case about threats at all; it was a case about unwanted speech. While some of Counterman’s messages may have been threatening, the harassment and stalking aspects of his awful behavior were not dependent on that—they would have existed even if all the messages were prosaic. The Colorado courts presumably applied the true threat doctrine because they reasonably believed that to uphold Counterman’s conviction, they had to pigeonhole it into a category of “unprotected speech” that the Supreme Court had previously recognized, and true threats is such a category.⁹⁰ Indeed, as Genevieve Lakier and Evelyn Douek explain, since the Supreme Court’s pathbreaking 2010 decision in United States v. Stevens sharply limiting the power of courts to recognize new categories of unprotected speech,⁹¹ lower courts have been able to uphold anti-stalking legislation only by characterizing the speech at issue as falling within an already recognized category of unprotected speech—generally either “speech integral to criminal conduct” or “true threats.”⁹² Eugene Volokh similarly argues that under current law, lower courts cannot treat “harassment” as unprotected speech unless it falls within a category such as threats—a position that Justice Alito took in an opinion predating his elevation to the Supreme Court, which has been followed by numerous other jurisdictions.⁹³

All of which is well and good—but it has no relevance to the Supreme Court itself, which of course does have authority to expand the realm of unprotected speech. Even if Stevens indicates that the Court will not recognize new categories of unprotected speech based on the content of the speech absent a historical tradition,⁹⁴ it certainly does not close the door to recognizing factors other than content that might take speech outside of First Amendment protections—such as its unwanted nature. The Supreme Court had an opportunity to recognize such a category in Counterman but failed to do so because it failed to distinguish harassment and stalking from threats.⁹⁵

It is quite possible that the Court’s failure to consider harassment/stalking as a separate speech problem from threats was because that is how the parties to the litigation (and the lower courts) posed the issue. But by analyzing the case as it did, the Court has created a serious risk that moving forward, lower courts will treat harassment and stalking issues as co-extensive with the threats doctrine, thereby ignoring the implications of Rowan and the right to be left alone.⁹⁶ If the Court had analyzed the case properly, it would have recognized that because Counterman’s speech was unwanted, and because his victim had invoked her right to be left alone, as she did in that case by repeatedly blocking Counterman on social media,⁹⁷ the existence of a threat was irrelevant. Counterman’s expression was a classic case of repeated infliction of unwanted speech in a one-to-one context, and so there should have been no barrier to his prosecution under a properly drafted statute—though it is unclear whether the actual Colorado statute in that case satisfied those standards.

Nor are the implications of paying attention to listeners’ interests limited to stalking. Most obviously, laws designed to enable listeners to enforce their right to be left alone, such as the Federal Trade Commission’s Do Not Call Registry, are clearly constitutional on this view.⁹⁸ Similarly, prohibitions on telephone or other harassment under which penalties are triggered when the victim communicates their desire to be left alone also pose no constitutional concerns.⁹⁹ More generally, recognizing that speakers have no First Amendment interest in forcing speech onto unwilling listeners opens the door to a wide range of regulations addressing such things as email spam, spam texting, and even junk mail (following in the footsteps of Rowan).

Consider also harassment litigation arising out of campus protests regarding the Gaza war,¹⁰⁰ or complaints by members of Congress that by failing to control such protests campuses permitted harassment of Jewish students.¹⁰¹ Insofar as these harassment claims are rooted in one-to-one speech, such as following students around and yelling slurs or otherwise directing hostile speech at individual students who have demanded to be left alone, the First Amendment under the above analysis provides no protection to such speech. (Whether universities have a legal obligation to protect victims from such speech is, of course, a different matter.) On the other hand, to the extent that claims of harassment are rooted in slogans yelled during protests such as “From the River to the Sea,” which many people consider antisemitic, or the allegedly antisemitic content of signs, this is classic one-to-many speech which cannot be condemned purely because of its unwanted nature; indeed, at least with respect to public universities silencing such speech, it would almost certainly constitute viewpoint discrimination in violation of the First Amendment. The same would be true even regarding calls for genocide that Republican members of Congress such as Elise Stefanik complained about,¹⁰² since such calls surely would not qualify as unprotected incitement under the stringent test of Brandenburg v. Ohio.¹⁰³ After all, for better or for worse, there is no “awful speech” exception to the First Amendment.

Finally, consider the “fighting words” doctrine. In its 1942 decision in Chaplinsky v. New Hampshire, the Court held that so-called “fighting words”—which is to say curse words or insults delivered in person—are not protected by the First Amendment.¹⁰⁴ This holding is rooted in assumptions that fighting words are likely to trigger a violent response from their target, and that such a response would be justified.¹⁰⁵ The fighting words doctrine has been subject to sharp criticism,¹⁰⁶ but the Court has yet to abandon it. In truth, though, the assumptions underlying the doctrine seem seriously outdated, and are also highly gendered, based as they are on a “real men” ethos. Based on the reasoning of Chaplinsky alone, therefore, the doctrine probably should be overruled.

On the other hand, it seems likely that in most circumstances fighting words are going to be unwanted speech, from the listener’s perspective. Furthermore, the typical fighting words situation involves one-to-one speech (indeed, it is doubtful if the fighting words doctrine would apply to one-to-many speech).¹⁰⁷ If, however, a target of fighting words expresses to the speaker a desire to be left alone, then any subsequent speech by that speaker would, under my approach, violate the right to be left alone, and so become unprotected. Admittedly, this approach to fighting words does not address the “first blow” of curse words spoken only once; but it does have the advantage of not resting on dubious assumptions.

B. Hill, McCullen, and Avoiding Offense

Another area in which conflicts between speakers and listeners regularly arise is in the context of protests and other expression near health care facilities that provide abortion services. The difficulty arises because on the one hand, the speech of protestors and others—whether pro- or con-abortion rights—is obviously speech on important, controversial, and politically charged topics, and so receives the highest level of First Amendment protection. But on the other hand, it seems reasonable to assume that most members of the audience for this speech—who are overwhelmingly employees or patients of the relevant clinics—would prefer not to hear the speech, sometimes strenuously so. Therefore, courts and legislatures struggle with how to address these conflicts.

While First Amendment cases involving speech near abortion clinics, even in the Supreme Court alone, are myriad, I will focus my discussion on two of the most important and controversial of them. The first is Hill v. Colorado.¹⁰⁸ Hill involved a challenge to a Colorado statute that limited speech within one hundred feet of the entrance to a healthcare facility.¹⁰⁹ In particular, the law prohibited any person within that area from approaching within eight feet of another person without their consent “for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person.”¹¹⁰ Characterizing the issue before it as whether this law “reflects an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners,”¹¹¹ the Court ultimately upheld the statute. In doing so, the Court relied heavily upon the government’s interest in protecting an “unwilling listener’s interest in avoiding unwanted communication,” citing Frisby and Rowan.¹¹²

Justice Scalia’s dissent took sharp issue with this reasoning. He argued that because the Colorado statute was based on the assumption that only speech within the statutory prohibition—“protest, counseling, and education”—was likely to be unwelcome, the law was content-based and so invalid.¹¹³ At least as to this point, it should be noted, Justice Scalia’s argument is entirely consistent with my analysis set forth above (and concomitantly, the majority’s is not). The State may not decide for itself what speech is unwelcome, and insofar as Colorado did so, its law was invalid.

But Justice Scalia did not stop at this point. He went on to argue that any law targeting unwanted communications was automatically content-based, because the law was triggered by the communicative impact of the unwelcome communication. As such, he would have invalidated any such law.¹¹⁴ But that goes a step too far, insofar as it suggests that speakers have a right to impose their speech on others when their audience has actively asserted a desire not to listen. In a later abortion case (discussed next), Justice Scalia suggested that his argument that the government had no legitimate interest in protecting people from unwanted speech was limited to restrictions on speech “in the public streets and sidewalks.”¹¹⁵ But again, Justice Scalia is off the mark. The key question is not where the speech occurs, but whether the speech is directed solely at unwilling listeners, as opposed to a broader audience (in other words, one-to-one versus one-to-many). Certainly, in many instances, including Snyder, it is reasonable to assume that speech in public places is directed at the public. But that assumption does not hold in the context of all anti-abortion protests, in which the speech is sometimes directed solely and directly at often-unwilling employees and patients. In Snyder, the Westboro Baptist Church sought out a broader audience for their protest by contacting the press and drawing attention to themselves; it is therefore doubtful if the protest would have proceeded if no one aside from funeral attendees had shown up (remember that the plaintiff in Snyder did not even see the speech at the time of the protest). But the same is very much not true of anti-abortion protests, which regularly occur without any broader public presence, and which are sometimes, though certainly not always, designed and intended to cause emotional harm to their “audience.”

Now consider the Court’s most recent, significant decision in this area, McCullen v. Coakley.¹¹⁶ There, the Court unanimously invalidated a thirty-five foot “buffer zone” that Massachusetts mandated around the entrances of abortion clinics, in which no one was allowed to enter or remain in, except for specific purposes such as simply walking through, people on clinic business, and law enforcement and other public functions.¹¹⁷ The Court, however, divided sharply on its reasoning. A five-Justice majority (with Chief Justice Roberts writing) found the law content-neutral but nonetheless concluded that it failed intermediate scrutiny.¹¹⁸ The concurring Justices (led again by Justice Scalia) would have invalidated the law as a content-based restriction on speech.¹¹⁹

What is interesting for our purposes is that in the course of finding content-neutrality, even the majority conceded (without mentioning Hill, oddly) that if the Massachusetts law had been “concerned with undesirable effects that arise from ‘the direct impact of speech on its audience’ or ‘listeners’ reaction to speech,’ ” it would have been content-based.¹²⁰ And Justice Scalia in his concurring opinion of course agreed with this point (while lambasting the majority for not expressly overruling Hill).¹²¹ The only issue on which the Justices disagreed was whether this was, in fact, the actual purpose of the Massachusetts law.

But unanimous or not, the Justices seem simply wrong on this point. Certainly, anti-abortion speakers have a right to make their case to the public, even if the ways in which they do so are distasteful or offensive. And certainly, the state has no interest in purging their speech from public debate, including in one-to-many speech in particular, simply because some members of the audience object to it. But to suggest that the state has no interest in protecting unwilling speakers at all is just wrong, in giving no weight to listener interests and failing to distinguish between public debate (meaning one-to-many speech) and private speech (meaning one-to-one speech).

In short, the bottom line is that insofar as the Colorado and Massachusetts laws in Hill and McCullen were based on the state’s assumption that anti-abortion speech is unwelcome, the Court was wrong to uphold the Colorado law and correct to invalidate the Massachusetts one. And the Justices are, to reiterate, also clearly correct that speech cannot be expunged from public debate simply because it might offend or discomfit some who hear it. But by going further and suggesting, as Justice Scalia did in Hill and all the Justices did in McCullen, that the state has no interest in enforcing listeners’ expressed preferences to be left alone, they are just wrong. The question of how a state might design a mechanism to enforce those expressed preferences has already been discussed; but for the purposes of this discussion the key point is that the Court appears in these cases to be conflating two entirely separate questions: the exclusion of offensive speech from public debate, which is impermissible, and the enforcement of listeners’ expressly invoked right to be left alone, which is not.

C. Regulating the Internet

In the summer of 2024, the Supreme Court issued an opinion in Moody v. NetChoice, LLC.¹²² The case involved challenges to two statutes, one enacted in Florida and the other in Texas, which both regulated the content moderation practices of social media platforms. In particular, the Florida law restricted the power of such platforms to moderate posts by “journalistic enterprise[s]” and posts by and about political candidates.¹²³ The Texas law more broadly forbade platforms from moderating content based on the viewpoint expressed in a post or the viewpoint of the poster.¹²⁴ Both laws also granted users certain procedural rights when their posts were moderated,¹²⁵ but those aspects of the laws are less relevant to this article. The Supreme Court ultimately declined to resolve the claims because the plaintiffs had chosen to bring a facial, as opposed to as-applied, challenge, and both lower courts had failed to apply the proper standard for facial challenges.¹²⁶ But in the course of providing instructions on remand, a solid majority of the Court made it clear that the First Amendment provided strong protections for platforms’ editorial choices in the form of content moderation.¹²⁷ As such, the Court was quite clear that if platforms chose to bring as-applied challenges to the application of at least the Texas law to their moderated “feeds” or homepages, the challenges were very likely to succeed.¹²⁸

The majority’s reasoning in NetChoice was clearly correct as a First Amendment matter¹²⁹ and is more than sufficient to sustain properly framed challenges to the Texas, and, truth be told, Florida, laws. But a focus on listener interests suggests that there is something more fundamentally problematic about Florida’s and Texas’s approaches to regulating platforms. The laws of both states are rooted in the basic assumption that legislators (and Governors) know best what content listeners/users should and should not be exposed to. But that assumption and approach are antithetical to First Amendment principles. It is for individuals, not the state, to decide what expressive interactions they wish to participate in.

A much better approach would be one proposed by a group of researchers at Stanford University, led by Francis Fukuyama, which seeks to introduce competition and choice in “middleware,” meaning the software that that performs editorial and content moderation functions on platforms.¹³⁰ Requiring platforms to permit users to pick their middleware of choice from a competitive menu of options empowers users/listeners to choose what speech to consume, and what not to consume, and so such a law would advance listeners’ rights. Of course, such a legal requirement would still burden platforms’ editorial rights, but in a less blatantly biased (and political) manner than Florida and Texas sought to do and so might be constitutionally defensible.¹³¹

Another area in which a listener-centric approach yields important insights is in regulations restricting targeted advertising. For example, Article 28(2) of the European Union’s Digital Services Act (“DSA”) prohibits platforms from delivering targeted advertising to users who are minors based on their personal data.¹³² While the First Amendment of course does not apply to the EU, given the so-called “Brussels Effect,”¹³³ it would not come as a surprise if the United States or one or more states within the United States, including California, followed the EU’s lead in this regard.

But the EU’s approach is misguided. It assumes that targeted advertising directed at children is inherently harmful or invasive. But, in fact, for vulnerable groups such as LGBTQ youth, shielding them from targeted content can cause substantial harm.¹³⁴ And more fundamentally, it is always better for the state to empower listeners, even minor listeners—who after all enjoy significant First Amendment rights to access information¹³⁵—than to make choices for them as the DSA does. For that reason, if the United States or an individual state felt it necessary to restrict targeted advertising directed at minors, it would be much better to empower minors or their parents to opt out of all, or specific forms of, targeted advertising than to enact a flat ban as the DSA does. Admittedly, authorizing parents to restrict targeted advertising could also have deleterious effects on vulnerable youth (sometimes parents are the problem); but that is a difficulty that pervades our society and can only be addressed through broader legal reforms, particularly in family law.

Conclusion

This article argues in favor of recognizing listeners’ rights to, and interests in, not to listen/be left alone. Such a right/interest comes in two forms. The first is a First Amendment right against the state, which generally would prohibit the state from forcing ideological content on unwilling listeners, a proposal that hopefully is not controversial. More difficult is a potential listener interest in avoiding speech from private speakers. Such an interest does not directly implicate the First Amendment, given the lack of state action; but in this paper I argue that nonetheless, the interest is a genuine one rooted in principles of free speech, which should be recognized: a right, as it were, to be left alone. The key implication of recognizing such a right is that it suggests that the First Amendment should not be understood to protect private speech directed at an unwilling listener who has invoked their right to be left alone, at least in a one-to-one situation. This in turn means that the First Amendment does not prohibit the state from adopting measures designed to enable unwilling listeners to invoke and legally enforce their right to be left alone, though nor does it mandate such measures.

This is not to say that protecting the right not to listen, and the right to be left alone, do not raise concerns. For one thing, it will reduce the occasions in which individuals will be exposed to ideas they do not like, which might be to the detriment of the quality of public discourse.¹³⁶ Furthermore, a right to be left alone that must be invoked to be effective might well be less useful to the disempowered in our society, who might therefore be harmed if the government is prevented from taking the initiative in shielding them from harmful speech.¹³⁷ But all rights come with a cost; and on balance, this paper argues that recognizing and empowering listener autonomy is worth the cost.

Finally, it should be noted that the analysis above regarding a right to be left alone, and how it can be reconciled with a speaker’s right to an audience, can also be extended to the converse situation—when the right to listen conflicts with the right against compelled speech. Here, too, one faces a potential conflict between two First Amendment interests when a listener desires some information or message but the speaker does not want to share it (perhaps the situation in the Virginia Pharmacy litigation). In this situation, as noted earlier, normally the government cannot force speakers to communicate because of the compelled speech doctrine. But as with a right to be left alone, it may well be that the government has a legitimate role in facilitating voluntary relationships between willing speakers and listeners, and in incentivizing reluctant speakers on behalf of listeners. But that is another, and complicated, topic of inquiry.

98 S. Cal. L. Rev. 1129

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Ashutosh Bhagwat*

* Distinguished Professor and Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality, UC Davis School of Law, contact: aabhagwat@ucdavis.edu. Thanks to Professor Erin Miller and the staff of the USC Law Review for organizing this event. Thanks also to Eugene Volokh for agreeing to serve as Discussant for this paper, and to Joseph Blocher, Alan Chen, and all the participants at the 2024 Southern California Law Review Symposium for providing extraordinarily valuable feedback.

Listening on Campus: Academic Freedom and Its Audiences

September 2025September 2025Joseph Blocher*

Introduction

Current debates about campus speech often conflate two related but importantly distinct values: free speech and academic freedom. Both are widely perceived to be in crisis,¹ but they are not interchangeable, and slippage between the two makes it even harder to frame, let alone address, difficult questions about speech in university settings. Many of the most fundamental challenges—indeed, much of what makes campus speech unique in the first place—arise from the need to accommodate both values. In doing so, defenders of academic freedom must, as advocates of free speech have, more clearly articulate an account of listener interests. The basic project of this Article is to frame that challenge and take a few initial steps toward answering it.

The most prominent (and successful, at least if success is measured by legislative and popular action) critics of the campus speech climate are invoking a free speech paradigm. Their central complaint is that faculty, administrators, and students are selectively silencing speakers and ideas. The paradigmatic victims are often isolated conservative voices,² faculty and speakers attacked for things they write or say,³ and students who find themselves inhibited from speaking their minds on campus.⁴

These critics have pushed for a range of purported remedies, including cutting funding for diversity, equity, and inclusion (“DEI”) programs; requiring intellectual diversity statements; weakening the protections of tenure and collective bargaining; forbidding the teaching of certain supposedly divisive concepts involving race, gender, and sexuality;⁵ and ousting university leaders.⁶ Though framed as protections of free speech principles such as viewpoint neutrality, many of these efforts have the effect (and perhaps purpose) of restricting those very principles. In that sense, they invoke free speech but are not actually rooted in the free speech tradition.⁷ Sometimes the motivation seems to be nakedly punitive or political—a thumb in the eye of a liberal professoriate—or to make martyrs of provocateurs who have no business speaking in an academic setting to begin with.

But these critiques and purported reforms can also be understood in more principled terms as protecting listeners—most prominently the students and others who have an interest in hearing a range of ideas and speakers. Getting a handle on the campus speech debate therefore requires a clear account of listener interests, as this symposium invites. Doing so is especially important because many of the interventions flowing from the listener-based free speech critique are in tension with, and sometimes flagrantly undermine, the other essential element of campus speech: academic freedom. That freedom has many dimensions, each with its own value proposition: “freedom of research and publication, freedom in the classroom, freedom of intramural speech, and freedom of extramural speech.”⁸ For simplicity’s sake, I will call the expression associated with these freedoms “scholarly speech.”⁹

Such speech is governed not by the rules and principles governing public discourse (the free speech paradigm) but by the rules and principles of academic disciplinarity. In the words of the AAUP’s 1940 Statement of Principles on Academic Freedom and Tenure, which codified the principles and practices of academic freedom: “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.”¹⁰ The search for and exposition of truth in scholarly settings are subject to the academic judgment of peers, not the broadly permissive principles that prevail in the marketplace of ideas.

This does not mean that free speech and disagreement have no place on college campuses; to the contrary, they remain essential.¹¹ But in order to provide the essential benefits that are the core of their mission—the production and dissemination of knowledge¹²—universities must be tightly governed by themselves, not by donors and legislatures, and the relevant standards of research, publication, and teaching must be disciplinary, not political.

In short, the current debate has turned campus speech against itself, in part by leveraging listeners’ free speech interests to undermine academic freedom. The free speech critique has a clear account of value and harm (one largely rooted in listener interests) and has the additional benefit of constitutional moorings that are more secure than those of academic freedom.¹³ By invoking the importance of students’ exposure to a broad marketplace of ideas—a distinctly free speech-based frame—would-be reformers have justified a broad range of interference with universities’ self-governance. The tension between those principles has asymmetrically favored free speech both rhetorically and conceptually. Defenders of academic freedom must respond with an account of its value¹⁴—as something that not only protects scholars-as-speakers but ultimately and more importantly serves “the common good,”¹⁵ which can only happen if scholarly speech reaches the right audiences.

The goal of this Article is to suggest that academic freedom and the scholarly speech that it protects would benefit, as its critics have, by better articulating a listener-based account. Centering threats to scholarly speakers is consistent with standard doctrinal approaches to freedom of speech, and descriptions of individual professors and students facing repercussions for their speech may be rhetorically effective, just as stories of “cancelled” speakers have supported the free speech critique.¹⁶ But following First Amendment scholarship’s increasing exploration of listener interests in theory¹⁷ and in doctrine,¹⁸ accounts of academic freedom can and must focus on the audiences of scholarly speech.

Part I illustrates how critics of the current campus speech climate are pitting the free speech and academic freedom paradigms against one another, in large part by leveraging listener interests—for example, by attempting to justify interference with university governance as necessary to protect the interests of students-as-listeners. This listener-based critique can and should be answered with a listener-based defense of academic freedom. Doing so is not only important as a matter of rhetorical strategy, but necessary for a full and accurate description of academic freedom’s value. Indeed, the very justification for academic freedom is less concerned with the interests of scholars-as-speakers than it is with their role in producing and spreading knowledge—an inevitably collective activity, and one whose contribution to the common good is broadly predicated on the presence and engagement of various listeners.

Part II explores the distinct interests of three such audiences: students, scholars, and the general public.¹⁹ Each raises important issues and challenges. Emphasizing the rights of students-as-listeners may help ground their still-murky claims to academic freedom,²⁰ even as it both confirms and confounds standard accounts of listener interests in the free speech paradigm. On the one hand, the freedom of teaching (one prong of academic freedom) is undeniably rooted in students’ interests as listeners. On the other hand, students-as-listeners—despite being an arguably captive audience, lacking power vis-à-vis their professors—do not have a broad right not to listen, as many First Amendment principles suggest. Moreover, their rights as listeners vary significantly depending on the setting: classrooms and other curricular settings, guest speakers and other extracurricular events, and their dorm rooms.

Faculty are the prototypical speakers in the academic freedom paradigm, but they are also important listeners; the communal nature of knowledge production through research and publication requires as much. Moreover, individual scholars must constantly re-evaluate their own positions in light of others’ work—what I have called elsewhere (in the context of free speech) the “virtue of persuadability,”²¹ and what in the context of academic freedom essentially means holding oneself to disciplinary standards.

Finally, and perhaps most crucially, there are the listening interests of the general public. In the words of the AAUP, universities exercise a “public trust” which requires that they be immune to the “tyranny of public opinion,” allowing them to serve as “an intellectual experiment station, where new ideas may germinate and where their fruit, though still distasteful to the community as a whole, may be allowed to ripen until finally, perchance, it may become part of the accepted intellectual food of the nation or of the world.”²² That trust will only hold so long as the listening public believes it is indeed receiving something of value. Against a backdrop of growing skepticism about the very notion of scholarly expertise and a troubling rise of public and private attacks on research and teaching, defenders of academic freedom must persuade the public that their work is indeed furthering the common good.

I. Using Listener Interests to Put Free Speech Ahead of Academic Freedom

At the heart of current controversies about expression in colleges and universities²³ are two related but importantly distinct forms of expression: free speech and academic freedom. Both have important roles to play in a university, and I will refer to them collectively as “campus speech.” But to understand or address the perceived crisis it is essential first to be clear about the overlap and distinction between them—and, crucially, the ways in which listener interests are being invoked to turn free speech against academic freedom.²⁴

Many of the most serious concerns about the campus speech climate are about free speech as such. As Keith Whittington puts it in Speak Freely: Why Universities Must Defend Free Speech, “[f]ree speech on college campuses is perhaps under as great a threat today as it has been in quite some time.”²⁵ The reasons for and manifestations of these apparent threats take various forms whose propriety in any particular situation might of course be debated: shouting down speakers, students and faculty posting on social media, requesting or demanding trigger warnings, withdrawing job offers for students or faculty based on their speech, and more. The underlying conception of freedom being threatened in this paradigm is roughly akin to the freedom of speech protected by the First Amendment in the public sphere: a broadly libertarian marketplace of ideas in which expression must be “uninhibited, robust, and wide-open.”²⁶

The free speech paradigm and the familiar slate of First Amendment rules and principles accompanying it has an important role to play in many areas of university life. Most obviously and explicitly, many campuses have established various “free speech zones” in which students, faculty, and perhaps others can express themselves subject only to relatively narrow limitations for harassment, true threats, and the like. That same broad freedom might extend, whether declared or not, to other areas of a university campus such as open quads, streets, and other arguable analogues of public fora. Indeed, many universities claim to have broad or even absolute commitments to speech and are regularly evaluated or even ranked based on that basis.²⁷

The free speech paradigm also plays an important role in the scholarly enterprise that is at the heart of the university. In Whittington’s words, “[f]or universities, . . . free speech is valuable precisely because of its utility in generating, testing, and communicating ideas.”²⁸ This epistemological utility is only one of the values that free speech might serve in other contexts, like democratic participation or individual autonomy. Universities are not necessarily set up in opposition to values of democratic participation and individual autonomy, and indeed might well further them,²⁹ but their central mission is to generate and disseminate knowledge—to be “a space where ideas are held up to critical scrutiny and our best understanding of the truth is identified and professed.”³⁰ As the Supreme Court put it in Sweezy v. New Hampshire—a case often cited in the literatures involving both listener interests and campus speech—we “must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”³¹ Keyishian v. Board of Regents, which likewise has a prominent place in both literatures, similarly declared that “[t]he classroom is peculiarly the ‘marketplace of ideas.’ The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’ ”³²

But the university, let alone the classroom, is a “marketplace of ideas” in a very particularized sense. Surely, scholars must be free to attack shibboleths and to push the boundaries of knowledge beyond received academic orthodoxy. Moreover, the commitments to communication, reasoning, and persuasion in the classroom might make it an especially valuable site of the marketplace’s supposed truth-seeking capability, which has been subject to withering criticism elsewhere.³³ And yet even the most ardent champions of the free speech model would accept that scholarly discourse, including in the classroom, not only permits but requires speech regulations that would not be acceptable in the traditional public marketplace of ideas.³⁴ It would violate the First Amendment if a state were to fine its citizens $50 for espousing flat earth beliefs in public discourse. It would not violate the First Amendment if a state university’s geology department were to deny tenure to a faculty member espousing such beliefs in her scholarship. In innumerable ways, communication in university settings is appropriately subject to restrictions that would be unthinkable under standard free speech principles.

Some of these limitations can be reconciled with the free speech paradigm on the grounds that they represent applications of well-worn First Amendment principles like time, place, and manner restrictions, but the underlying tension is fundamental. Time, place, and manner restrictions must be content-neutral,³⁵ but what is a curriculum except a restriction on the content of faculty and student speech? The prohibition on viewpoint discrimination is nearly ironclad in public discourse,³⁶ but not in scholarly settings.³⁷ How else to describe the situation of the geology professor, who after all is simply advocating a scholarly viewpoint? Or consider the fact that in public discourse, speaker equality is a fundamental principle.³⁸ In a scholarly setting, ideas and speakers should not be disregarded simply because they are politically unpopular, but it does not follow that all must be accorded equal respect.³⁹ Those that do not measure up to the relevant scholarly standards not only can but should be excluded, even if they must be accepted in public discourse.

The rules governing scholarly speech are fundamentally different than those governing free speech because they have different and sometimes conflicting accounts of value. Academic freedom is protected because of its role in generating and spreading knowledge, not speech as such.⁴⁰ That requires a different set of rules and principles than those that apply to public discourse, including that scholarly speech be governed by the relevant standards of scholarly disciplinarity. This is why universities’ academic freedom policies often appear alongside their tenure policies; the two are deeply intertwined. In the realm of academic discourse, the right to “speak freely” looks very different than it does in public discourse, and it is not true that all “dissenting voices must be tolerated rather than silenced”⁴¹ in all campus settings. The central challenge is determining whether and how universities can regulate speech in service of their educational mission.⁴²

Many of the current battles over campus speech are playing out atop this tension, which has at least two potentially pernicious results. The first is evaluating matters of academic freedom—freedom of research and publication or freedom in the classroom, for example—according to the principles of public discourse. The second is prescribing remedies that not only ignore but might in fact undermine the institutional independence necessary for academic freedom. When a state legislature declares that professors are failing to treat their classrooms like the marketplace of ideas, it risks committing the first error. When that legislature then shuts down (or for that matter creates) academic centers with the goal of achieving ideological balance,⁴³ it risks committing the second.

There are many facets to the tension between free speech and academic freedom—indeed, it might be taken as an overall description of the campus speech crisis⁴⁴—but for present purposes and in keeping with the theme of this symposium it will suffice to focus on one: the interesting, important, and generally under-appreciated role of listener interests. Broadly speaking, advocates of the free speech paradigm have consistently and effectively invoked listener interests to suggest that students are being deprived of important ideas and that they are being forced to listen to objectionable ones. The latter line has become particularly prominent in the wake of the October 7, 2023 attacks in Israel, and has led to allegations of inconsistency and even hypocrisy on all sides. Whatever one thinks about those complaints, the point is that both are rooted in audience impact. Defenders of the academic freedom paradigm, by contrast, have done little to articulate the listener interests at stake for scholarly speech. The result is that listener interests are being used to turn free speech against academic freedom.

This is perhaps most evident in the strenuous critiques, mostly but not exclusively from the political right, alleging that universities are systematically underprotecting freedom of speech. Some critics have focused on the harms to speakers,⁴⁵ occasionally making martyrs out of provocateurs and others whose potential contributions to knowledge-producing discourse are marginal at best.⁴⁶ That strategy has undoubtedly been effective, but it has also had the distorting effect of elevating the profiles of professional attention-getters rather than those with a genuine dedication and ability to contribute meaningful ideas—including unpopular or disfavored ideas—to campus discourse.

Alongside this speaker-focused critique, however, there is a deeper and more serious element that focuses on the interests of potential listeners, including students who are denied access to important voices and ideas (primarily conservative ones). That critique takes multiple forms as well. One emphasizes the danger that conservative students will be alienated and harmed in campus settings where they cannot hear voices like their own or that students who are not exposed to such ideas will be indoctrinated with liberal orthodoxy.⁴⁷ Some conclude that the appropriate solution is to impose more control from the outside. Often the diagnosis and prescription are explicitly political, as with the “Freedom from Indoctrination Act,” whose supporters say would—by “[r]eclaiming [a]cademic [f]reedom”—give students “the freedom to take coursework without a distinctive left-wing ideological valence.”⁴⁸

As a matter of education and pedagogy, the most fundamental risk is that listeners in an academic setting will be harmed if not given sufficient opportunity to hear and consider ideas different than their own.⁴⁹ As John Stuart Mill put it in On Liberty: “Both teachers and learners go to sleep at their post as soon as there is no enemy in the field.”⁵⁰ If a university community presents only one side, its thinking process is thereby distorted, just as “the thinking process of the community” can be distorted by restrictions on speech (to borrow a phrase form Alexander Meiklejohn).⁵¹

One might object to the predicate assumptions—perhaps conservative voices are not being silenced; perhaps students have access to all the viewpoints they need—but at the very least these are arguments, rooted in listener interests, that must be taken seriously. They have been used to “undermine[] the legitimacy” of universities⁵² and sometimes to directly threaten the institutional autonomy that is essential to academic freedom, for example by imposing restrictions on subject matter,⁵³ interfering with hiring decisions,⁵⁴ and weakening tenure.⁵⁵ The most prominent threats appear to be coming from the political right, but left-associated programs like DEI can present threats as well. As Khiara Bridges notes, “If institutions take it as their duty to ensure student comfort—and if antidiscrimination laws are wielded in a way to enforce that duty—then academic freedom surely will suffer.”⁵⁶

Defenders of the academy have rightly called out these ongoing attacks. But ringing the alarm bells is only part of the task. Proponents of academic freedom must be able to do at least two things: hold it out as something distinct from free speech, and provide a theory of value. These are not new tasks. Roughly coincident with the awakening of free speech in constitutional doctrine, academic freedom found its first and most important articulation of identity and value in the foundational texts and practices of

American academic freedom: the 1915 Declaration of Principles on Academic Freedom and Academic Tenure⁵⁷ and the 1940 Statement of Principles on Academic Freedom and Tenure.⁵⁸

At the time of the 1915 Declaration, the “philosophical birth cry” of academic freedom in the United States,⁵⁹ the major threats to faculty independence were triggered by professors’ speech, not by speech they were supposedly stifling. Today, the threat is often presented as being to free speech itself—a concept that was, as a constitutional matter, still in its infancy at the time of the AAUP’s original efforts.⁶⁰ Responding to that threat today, it seems especially worthwhile to attach the value of academic freedom to its manifestation in scholarly speech.⁶¹ In doing so, defenders of academic freedom would be well served to embrace the challenge posed by this symposium and articulate a value of listener interests akin to what defenders of free speech have done.

Indeed, there are good reasons to think that for universities—and thus for academic freedom—listener interests have always been central, even if (as with the freedom of speech) the freedoms themselves are articulated in terms of speaker rights. The very raison d’être for academic freedom, after all, is the production and dissemination of knowledge, which presupposes recipients. As Justice Brennan put it in another context (in a passage often cited by those expounding listener interests), “[t]he dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”⁶² It is not coincidental that some of the clearest legal language supporting the listener-focused approach comes from cases involving educational settings.⁶³

Broadly speaking, universities might be a particularly special kind of institution in terms of listener interests—one in which speaker and listener interests are generally aligned. RonNell Andersen Jones has identified and explored this dynamic in the “constitutionally symbiotic relationship between the institutional speakers of the press and their public audiences,” which she calls the “most notable” example.⁶⁴ But much of what she says about the press is true of universities as well. Like the press, universities are “a specially protected institutional speaker with both a uniquely powerful speech relationship with listeners and a uniquely heightened threat of being targeted by government regulators.”⁶⁵ And like the press, universities are not mere conduits for speech, but rather play an active role along with their listeners in shaping that speech.⁶⁶

Of course, universities are not singular entities but institutions comprising a complex web of speakers and listeners, each with different interests, as the following Part explores in more detail.

II. The Audiences of Scholarly Speech

The discussion thus far has attempted to highlight connections between three concepts—free speech, academic freedom, and listener interests—that are themselves contested and hard to define. This Part attempts to make the analysis more concrete in at least two ways.

The first goal is to disaggregate some of the various audiences of the scholarly speech protected by academic freedom, including students, faculty, and the public.⁶⁷ Those audiences have different and sometimes-conflicting interests, which raises tensions for the concept of academic freedom and scholarly speech. The second goal is to try to identify particular—and difficult—campus speech issues and controversies that might be illuminated or better understood with attention to the listener interests involved. Recognizing listener interests will not and cannot provide simple solutions.⁶⁸ But it might help illustrate the challenge.

A. Students

Perhaps the most obvious and immediate audience for scholarly speech (which, again, I use as shorthand for the kind of speech that academic freedom enables) is students. And, as detailed above, their interests as listeners have been made central to the current debates over free speech on campus, so it makes sense to begin by considering how those interests as listeners relate to academic freedom.

Classrooms and Other Curricular Settings

Classrooms are a “peculiarly”⁶⁹ useful place to begin considering listener interests, though the lessons they provide in that regard are not straightforward. Indeed, it may be better to think of classrooms as peculiar not in the sense that they are especially a marketplace of ideas but—in keeping with the other meaning of peculiar—that they are an odd marketplace of ideas.

On the one hand, the interests of student-listeners provide a solid justification for instructors’ freedom of teaching, which has been a pillar of academic freedom for at least a century. When professors are prevented from teaching their best understanding of the subject matter in which they are expert, the most significant and concrete harm is likely to the students whose educations are hampered by denial of access to that information. This is fully consistent with the fact that it is typically professors, not students, who assert that freedom. After all, “speakers often have the job of asserting listeners’ rights” because they “are often best placed to challenge allegedly censorial governmental action.”⁷⁰

It does not follow, however, that freedom of teaching is bounded by students’ narrow and immediate preferences. Certainly faculty do not have unbridled freedom to teach students who do not wish to learn; the rights and duties of academic freedom do not work that way, and no one is obliged to attend university and be exposed to ideas they would prefer to avoid. But faculty must and do have control over the curriculum, even when that means teaching material that students—or for that matter legislatures or trustees—find boring, difficult, or otherwise objectionable.⁷¹ The relevant standards are those of academic disciplinarity and good pedagogy, not what students or others prefer at any given moment. If those standards are satisfied, then students-as-listeners can be expected to give their attention, whether or not they reject the information or even find it despicable or threatening.⁷² Students who choose not to listen can legitimately face consequences (such as lower grades); students who disrupt the flow of information to other willing listeners can be disciplined.

This is the central reason why efforts to either forbid or require the teaching of certain subject matters is so troubling: Even as they invoke students’ interests in “free speech” or “academic freedom,” such efforts limit the institutional autonomy to make curricular choices, essentially turning academic freedom on its head and thus undermining students-as-listeners’ interests in being taught by experts.

That does not mean, of course, that individual faculty are free to teach whatever they like—that would be a different, but still inappropriate, use of a free speech paradigm. Attention to disciplinary standards is the core of academic freedom, and it imposes limits both on faculty as speakers and on students as listeners. As then-Judge Samuel Alito put it in a Third Circuit case rejecting a free speech claim brought by a professor who tried to teach religious materials in contravention of curricular expectations, “a public university professor does not have a First Amendment right to decide what will be taught in the classroom.”⁷³

The situation is therefore one in which the interests of students-as-listeners are paramount—the predicate for freedom of pedagogy—but universities (not outside bodies) must have control of the curriculum. This is in tension with some of the principles that emerge in standard accounts of listener interests within the free speech paradigm. After all, one “fundamental” value at issue in the free speech tradition is that “the state wrongs citizens by arrogating to itself the authority to decide what messages they ought to hear.”⁷⁴ But that is just what teachers do.

A variety of other listener-based principles also play out differently for students in classrooms than for people in public discourse. In most First Amendment settings it is generally accepted that “captive” audiences— those who cannot avoid a message and should not have to abandon a particular space in order to do so—have a greater right not to listen.⁷⁵ By contrast, those who can take steps to avoid an unwanted message are expected to do so,⁷⁶ especially in public places.⁷⁷ In Cohen v. California, the Supreme Court reasoned that unwilling viewers did not have privacy interests that would justify such speech suppression because, rather than being “powerless to avoid [the] conduct,” they “could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”⁷⁸

As Caroline Mala Corbin observes, “[l]ike employees at work, students on campus are often a captive audience.”⁷⁹ But it would be too much to conclude that students have a right to disregard—or, worse, interfere with others’ access to—pedagogically-appropriate lessons about the rule against perpetuities because they find it too difficult, or Dobbs v. Jackson Women’s Health Organization⁸⁰ (or for that matter Roe v. Wade⁸¹) because they find it upsetting. Of course institutions and instructors might choose to provide exceptions and accommodations for pedagogical reasons (pedagogy has its own disciplinarity, which includes understanding one’s listeners), but not simply to avoid relevant materials. Thus, even though it involves listeners who are in some sense captive, the classroom is an exception—or at least qualification—to the notion that “[s]tudents have a right to ignore speech that they find appalling and unpersuasive, or to take up the challenge to counter such speech with arguments of their own.”⁸²

Second, although law sometimes gives primacy to listeners’ interests over those of speakers in contexts where speakers have more power or information,⁸³ the same is not true in the classroom. Helen Norton explains:

Even absent any relationship of trust, listeners become vulnerable to speakers when those speakers exert physical, legal, or economic control over them. The sorts of listeners subject to speakers’ dominion in these ways include those in government custody, patients in certain health care settings, and many workers. Listeners in these settings are less likely—and sometimes entirely unable—to question, rebut, or escape powerful speakers.⁸⁴

Norton does not mention students, but there can be no doubt that in many ways (if not all⁸⁵) they have “less information or power”⁸⁶ than their professors, especially in the classroom setting.⁸⁷ This is akin to the danger of what Erin Miller has described in the context of media companies as the “skewing power” of an “epistemic funnel,” which can disrupt a person’s epistemic rationality, or “ability to form rational, justified beliefs.”⁸⁸ A fundamental goal of teaching is to further epistemic rationality, not undermine it, but the imbalance and risk are ever-present.

And yet, as with the principle of captivity, it does not follow that students can invoke their interests as listeners to opt out of curricular requirements or particular lessons. In that respect, the undoubted inequality between students as listeners and faculty as speakers does not lead to the outcome that it might in the free speech paradigm. In other ways, however, the two are not necessarily inconsistent. After all, in other contexts involving asymmetry of knowledge or power such as professional speech,⁸⁹ free speech principles tolerate various forms of regulation in order to ensure that listeners—even if they are at a disadvantage of power or information—are receiving information that satisfies the relevant professional standards.⁹⁰ In the context of teaching, these listener-protective standards are supplied and enforced by the relevant academic unit. For example, the AAUP’s 1915 Declaration specifically warns faculty to “guard against taking unfair advantage of the student’s immaturity by indoctrinating [them] with the teacher’s own opinions” before the student is in a position to examine other opinions and “form any definitive opinion of [their] own.”⁹¹

Third, many standard listener-based accounts of free speech emphasize the autonomy interests of listeners. As Jones puts it:

If listeners, like speakers, have dignitary rights to self-fulfillment and self-definition, they “must also be free to shape their own identities and preferences.” Listening should be an independent source of legal right because a listener possesses not only “a powerful dignitary interest in shaping and defining the hearer’s self,” but also “an instrumental interest in gaining access to information and ideals that will assist the hearer in making rational, informed choices,” and a legitimate “fear that government will abuse any power to cut the hearer off” from speech that meets these needs.⁹²

Once again, a simple version of autonomous listener interests cannot account for curricular settings, at least not without modification. Students might earnestly believe that they should be free to shape their identity and preferences by avoiding particular information. But that will not excuse them from curricular requirements regarding those topics.

There are ways to blunt the tension. One might say that students have, by enrolling in a program with transparent requirements, autonomously pursued their “instrumental interest in gaining access to information and ideals that will assist the hearer in making rational, informed choices,” and that their objections to any particular steps along the way should be subsumed to the larger autonomous choice. This effectively treats the students’ choice to listen as a kind of rolling consent. After all, the student version of academic freedom traces itself to the German Lernfreiheit, or freedom to learn, which originally “referred simply to the freedom to choose one’s course of study.”⁹³

Of course, none of this means that students do or should have no say in the curriculum.⁹⁴ As Khiara Bridges notes, “a society that purports to value equality benefits when professors learn to experience this pressure not as a constraint on academic freedom but rather as an entreaty about the destination to which their exercise of academic freedom might lead.”⁹⁵ Good pedagogy not only licenses but requires attention to one’s audience. The point is not to describe knowledge but to convey it, and careful instructors therefore account for structure, presentation, and pacing, all of which depend in part on students’ abilities, interest, and experiences. Perhaps a broad mandate of trigger warnings and class exemptions hinders learning. But professors who stubbornly insist on teaching material without considering their students’ perspectives are simply abdicating the responsibility to teach well.

Campus Speakers, Events, and Other Extra-Curricular Settings

The analysis thus far has focused on the classroom, where the importance of students-as-listeners and demands of academic freedom as a form of disciplinarity seem most clear. Matters are more difficult when it comes to nominally extra-curricular campus speech like outside speakers and events.

It is one thing to say that students are obliged to listen and learn the prescribed material in a class for which they have registered or which is otherwise required by the curriculum. It is quite another to say that they are obliged to give their attention to any particular campus speaker or lunchtime event. To do so might be a virtue, but attention is a precious resource⁹⁶ and students-as-listeners retain substantial control over how they choose to spend it. In that regard, the autonomy principle plays a more important role when it comes to extra-curricular speech than it does in the classroom.

Most campus speaker controversies—which can serve as a stand-in for the broader category of on-campus, extra-curricular speech—do not involve students deciding not to listen, but rather efforts to protest or disrupt such speeches so that others cannot listen, either. Most (albeit not all⁹⁷) discussions, celebrations, and condemnations of these efforts have focused on either the protesting students or the “cancelled” speakers. This has had a number of unfortunate effects. One is distorting understandings of the campus speech climate by treating the actions of a few students at a few schools as if they are representative of the millions of students across the country. Another is amplifying the supposed interests of would-be speakers, some of whom are neither seeking nor likely to communicate anything of academic interest. Making the loudest of them into martyrs distorts the real issues of academic freedom at stake, as well as the valid audience-interests that generally count in favor of including controversial scholarly speakers.

Students who object to a speaker might be asserting their own interests as listeners—as they have every right to do—but they also risk interfering with the listening interests of others. Some degree of protest, aggressive questioning, or heckling might be appropriate and could even contribute to the educative value of the event.⁹⁸ But disrupting the match between a willing speaker and a willing audience is the essence of interfering with listeners’ interests.⁹⁹ Student-listeners’ opposition to a speech they are not required to attend cannot, without more, be a reason for either them or the university to unduly disrupt the event. This is generally consistent with First Amendment doctrine, which holds that “[l]isteners’ reactions to speech are not the type of ‘secondary effects’ ” that may insulate a regulation from heightened scrutiny¹⁰⁰—in this context, the protest or disruption would be the equivalent of a regulation.

As with classroom pedagogy, of course, this does not mean that student objections to a particular speaker or event should be ignored. Greg Magarian’s suggested solution is that a university has a “duty of faithful service to its students,” and that if it invites a speaker “for reasons that diverge from the interests of the student community” then the validity of the invitation should ultimately turn on “the university’s process for inviting the speaker.”¹⁰¹ This focus on listeners’ interests in the process of selection rather than with regard to the merits of an individual speaker raises an important potential framing question when it comes to listeners’ interests—namely, whether they should be measured at any one moment or across a broader time frame.¹⁰² Education, after all, is a process of development over time, many moments of which (exams, particular lessons, and for that matter particular ideas and speakers) might be objectionable to a listener.

Dormitories and Other Private Spaces

While it may be true that the primary mission of a university is the production and dissemination of knowledge, it does not follow that this mission is exclusive, nor even that it is primary in every corner of a campus. In some contexts, academic freedom is not the sole or even primary value, and standard free speech principles hold sway, including that of students-as-listeners to limit the speech of others.

Consider the dormitory. An Urban Institute study based on data from 2015 and 2016 found that nearly two-thirds of full-time students at private nonprofit four-year colleges and universities live in college housing, as do about a third of those at public four-year college students.¹⁰³ Student housing occupies something of a liminal space in that it is undoubtedly part of a university, and yet is also at least equally the private home of an individual.¹⁰⁴

In the First Amendment context, courts and scholars have typically recognized a right to choose what one listens to in the home. That right can be affirmative, as in Stanley v. Georgia, which declared that the “right to receive information and ideas, regardless of their social worth, is fundamental to our free society” and that it gains “an added dimension” when exercised “in the privacy of a person’s own home.”¹⁰⁵ But it also encompasses a right not to listen to unwanted speech in the home,¹⁰⁶ even if that means interfering with the flow of ideas. As the Supreme Court put it in Frisby v. Schultz, upholding a restriction on picketing in residential neighborhoods, “[t]here simply is no right to force speech into the home of an unwilling listener.”¹⁰⁷ In Rowan v. U.S. Post Office Department, the Court upheld a federal law permitting homeowners to opt out of receiving mailed advertisements that the homeowner believed to be “erotically arousing or sexually provocative,”¹⁰⁸ invoking a similar rationale:

We therefore categorically reject the argument that a vendor has a right under the Constitution or otherwise to send unwanted material into the home of another. If this prohibition operates to impede the flow of even valid ideas, the answer is that no one has a right to press even “good” ideas on an unwilling recipient.¹⁰⁹

The final line goes a bit too far—the government cannot always shut down speech on behalf of unwilling recipients—but it is generally sound in the context of homes and other locations that people cannot or should not have to leave.¹¹⁰

The same listener-focused principle applies to students in campus housing. Whether or not students are a captive audience in every campus context,¹¹¹ they have a valid claim to that categorization when in their own rooms. It follows that, just as with freedom of speech, others’ claims of academic freedom do not entitle them to force messages, regardless of their merit, onto students in the privacy of their dorms. Again, this tracks basic listener-based approaches to the freedom of speech, including the Court’s invocation of “the First Amendment rights of speakers against the privacy rights of those who may be unwilling viewers or auditors.”¹¹²

It should go without saying that the distinctions between these categories are neither bright nor inevitable. Indeed, the boundaries of the “home” on campus are significantly contested, and many critics claim that students are over-using it to protect themselves from unwanted ideas.¹¹³ In a much-publicized incident at Yale in 2017, students confronted the master of Silliman residential college, with one of them saying to him that “[i]t is your job to create a place of comfort and home for the students that live in Silliman . . . Do you understand that?”¹¹⁴ When the master responded that he had a different view of the role, the student responded: “Then step down! If that is what you think about being a Master, then you should step down. It is not about creating an intellectual space! It is not! Do you understand that? It’s about creating a home here! You are not doing that. You’re going against that.”¹¹⁵ Whatever one thinks of the student’s conclusions or the context and tone in which they were delivered, the invocation of the residential college as a “home” is not unjustified. Universities are more than just classrooms; they are “communities whose members not only work and learn together but also live, eat, and socialize together.”¹¹⁶

The lines between curricular and extra-curricular settings are similarly contestable. It might be easy in theory for a student to avoid listening to a lunchtime speaker, but what if the pressure from faculty, administrators, or classmates is so strong that it shades into compulsion?¹¹⁷ A student may be justified in claiming her dorm room as a private space where she has a freedom not to listen to controversial speech, but what about shared living rooms, quads, dining halls, and the like? What if her roommate does wish to discuss controversial topics? There is simply no way to give a single ex ante definition that will answer such questions, any more so than First Amendment doctrine can easily sort public from limited from nonpublic forums.

B. Scholars

Students are in some sense the most obvious listeners on campus, but they are far from the only ones. Whereas faculty as speakers are often central to debates about campus speech, they are also a crucial audience when it comes to academic freedom and scholarly speech.

The scholarly pursuit of knowledge is a communal enterprise.¹¹⁸ This is true in the obvious sense that a scholar must publish, teach, or otherwise disseminate what she knows in order for others to hear and benefit from the knowledge-production that justifies her academic freedom. But it is also true in the sense that to acquire such knowledge in the first place she must be embedded in a functioning community of speakers and listeners; one that appropriately takes its cues from (i.e., listens to) disciplinary experts.

The point is that the production of knowledge—the process of scholarly inquiry itself¹¹⁹—involves scholars simultaneously speaking and listening to one another. It is a community-wide instantiation of what Seana Shiffrin has described in treating individuals as “thinkers,” rather than speakers or listeners.¹²⁰ The justification for academic freedom is not simply that universities are in possession of truths that others have a valid interest and perhaps right to hear. Rather, it is that academic freedom is necessary to pursue and identify such truths.

This makes it essential that faculty be able to listen to one another. The freedom of research and publication at the heart of the 1915 Declaration is not solely—nor perhaps primarily—for the benefit of the researcher or publisher, but for those who might read and perhaps respond to her work. Actions that prevent scholars from benefiting from one another’s work threaten academic freedom by undermining those listening interests; they are a form of what Meiklejohn called the “mutilation of the thinking process of the community.”¹²¹ Scholars must be able to hear one another in order to build on or for that matter repudiate one another’s work.¹²² This model of knowledge production relies on self-policing institutions, not individuality;¹²³ scholars using their expertise to question received orthodoxy are not the same as no-nothings on the internet “just asking questions.”

Faculty also have an important interest in listening to their students,¹²⁴ as two of the Court’s most distinguished former professors noted in opinions relating to campus speech. In Justice William O. Douglas’s words, “If we are to become an integrated, adult society, rather than a stubborn status quo opposed to change, students and faculties should have communal interests in which each age learns from the other.”¹²⁵ Justice Felix Frankfurter characterized the interaction between teachers and students as “a kind of continuing dialogue.”¹²⁶

The student connection goes deeper still. It is said that being a student “means being open to others in ways that allow one to expand one’s thinking, to enhance one’s capacities for appreciation, for empathy and for civic participation.”¹²⁷ Such openness to growth and change surely should not be limited to students. Members of a university community “do not have the right to insist that others in fact find . . . arguments persuasive” but they do “have the right to expect that others in the community will be open to persuasion,”¹²⁸ and that expectation in turn can only be legitimate if faculty expect—and demand—the same of themselves. This does not mean wielding disciplinary standards as a cudgel, but working to shape justified beliefs; as Erin Miller observes, “[p]ersuasion engages, rather than subverts, epistemic rationality.”¹²⁹

I have argued elsewhere for the importance of persuadability as a First Amendment virtue.¹³⁰ In the context of scholarly speech, that virtue becomes something closer to a duty.¹³¹ A scholar who is not open to being persuaded is merely a speaker, not a listener, and in that sense is not genuinely involved in knowledge production—just dissemination of what that scholar takes to be the truth.

C. The Public

Faculty’s interests as listeners are essential to the practice of scholarly disciplinarity, but the ultimate justification for academic freedom is rooted in the interests of another audience: the general public. As we have seen, academic freedom as a matter of self-governance—freedom from outside control—was originally justified and must be constantly re-defended on the basis that such disciplinarity is actually practiced and also that it serves “the common good.”¹³² Both of those essential propositions are under great stress.

First, much of the current critique of campus speech is based on the notion that professors are failing to apply the disciplinary standards that justify academic freedom.¹³³ Such a failure can be taken as a default on the obligations that in turn justify academic freedom. As the AAUP’s 1915 declaration recognized, “[t]here are no rights without corresponding duties.”¹³⁴ Or in the words of the Executive Director of Heterodox Academy, which is at the forefront of campus speech battles today, “this is a pretty fair bargain. Professors receive wide latitude to run their own affairs as experts, in exchange for a certain professorial ethos of fair-mindedness, intellectual humility, and self-restraint.”¹³⁵

It is important that universities combat the impression of knowledge-stultifying homogeneity. One way to do so might be through modeling the virtue of persuadability described above—showing that scholars are in fact listening in meaningful ways. In their critique of cancel culture on college campuses (which is valuable, though it leans too heavily into the free speech paradigm), Greg Lukianoff and Rikki Schlott argue that, “[t]he antidote to an epistemic crisis is an expert class that exhibits epistemic humility. That means acknowledging when they might be wrong.”¹³⁶ The perception and arguable reality of “epistemic crisis” and characterization of an over-confident ivory tower can only be addressed through an appreciation of the public’s listening interests.

The second point of stress is that the listening public has increasingly come to doubt that academic expertise really does deliver value. A tendency to distrust the ivory tower is nothing new in American life, of course.¹³⁷ But in the current moment, that crisis of confidence is increasingly deep and partisan. A survey from 2022 found that only 37 percent of Republicans and 73 percent of Democrats believe that colleges and universities have a “positive effect” on society—numbers that have fallen precipitously.¹³⁸ This undoubtedly feeds into what Lukianoff and Schlott describe as one rule of “the right’s Efficient Rhetorical Fortress”; namely that “[y]ou don’t have to listen to experts (even conservative experts, if they have the ‘wrong’ opinion).”¹³⁹

There is no simple solution to this problem. In prior work, I have argued that the basic lodestar of an epistemic approach to the First Amendment might be reimagined not as truth but as knowledge—defined roughly as justified true belief.¹⁴⁰ To do so would mean focusing not just on the accuracy of information but the basis for believing it. And that, in turn, would direct attention to what ultimately is the underlying crisis of the “post-truth” society; not a failure to value or pursue individualized conceptions of truth, but a tendency to value and pursue individualized conceptions of truth regardless of justification. The crisis is one of social epistemology; of losing shared trust in the institutions that give us justified true belief. Any way out of that crisis must be rooted in the interests and perspectives of the listening public, who must be convinced that “[f]or society’s good—if understanding be an essential need of society—inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible,”¹⁴¹ and that the university “will function for the benefit of society, provided it is a center of independent thought.”¹⁴²

Conclusion

In contexts as diverse as employer speech,¹⁴³ robotic speech,¹⁴⁴ amplified speech,¹⁴⁵ commercial speech,¹⁴⁶ and search engines,¹⁴⁷ scholars and judges have identified and explored the status and role of listeners in giving life to the freedom of speech and the rights of speakers. For doctrinal and technological reasons, those inquiries are as important today as they have ever been, and this symposium is an invitation to take them further. The goal of this Article has been to suggest some ways in which consideration of listener interests might illuminate current debates about campus speech. Students’ interests as listeners are essential to justifying the freedom to teach, and yet students do not have the full panoply of listener-associated interests one might find in other speech contexts. Faculty, meanwhile, are generally treated as the paradigm speaker in campus speech controversies, but also have essential rights and duties as listeners; the production of knowledge through disciplinarity requires as much. And the academy’s authority to govern itself according to disciplinary standards is fundamentally predicated on convincing the public—a broad but essential audience—that the scholarly enterprise is in fact generating valuable knowledge.

* * *

98 S. Cal. L. Rev. 1161

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Joseph Blocher*

* Lanty L. Smith ’67 Distinguished Professor of Law and Senior Associate Dean of Faculty, Duke Law School. Many thanks to Erin Miller for including me in this symposium, to Ash Bhagwat, Rebecca Brown, Alan Chen, James Grimmelmann, Richard Katskee, Tomer Kenneth, Greg Magarian, and Nomi Stolzenberg for incredibly valuable feedback, and to Jack Townsend for research assistance.

First Amendment Governance: Social Media, Power, and a Well-Functioning Speech Environment

September 2025February 2026Yasmin Dawood*

Introduction

In Moody v. NetChoice, LLC,¹ the Supreme Court declared, in a majority opinion by Justice Kagan, that “it is critically important to have a well-functioning sphere of expression, in which citizens have access to information from many sources. That is the whole project of the First Amendment.”² In Moody, social media platforms claimed that their expressive freedom had been violated by state laws mandating certain content-moderation policies.³ Although Moody was decided on the criteria required to bring a facial challenge, it nonetheless provided some direction with respect to what the government can and cannot do vis-à-vis the First Amendment rights of social media platforms.⁴

This decision also implicitly raises the question of what it means for a democracy to have a well-functioning political speech environment in the digital era. This question seems particularly urgent given the profound dilemma that social media poses for democratic theory and practice. On the one hand, social media democratizes communication and promotes egalitarianism by reducing the cost of speech.⁵ It provides new avenues for expression and association, thereby strengthening public discourse. It has also been harnessed to enable citizen participation in political decision-making.⁶ On the other hand, social media can undermine democratic functioning, giving rise to various challenges such as disinformation, echo chambers, troll armies, bots, microtargeting, citizen distrust, and foreign election interference.⁷ As various attempts at election subversion, including the attack on the Capitol, demonstrate, election disinformation can have damaging and destabilizing effects on democracy and can diminish the confidence that citizens have in elections. The ongoing stability of political institutions should not be taken for granted in our era of democratic decline.⁸

Although free speech has always posed this particular dilemma—both essential for, yet potentially injurious to, democracy—key features of the new digital era raise questions as to whether conventional regulatory approaches are sufficient to safeguard the public sphere. Social media platforms enjoy unprecedented asymmetries of wealth and power as compared to their users. These platforms play a crucial role in providing and regulating the online speech environment⁹ and, hence, in constructing a significant dimension of public discourse. Aside from their dominance, these powerful social media platforms were not created to provide a healthy expressive realm for democracy. Instead, they engage in “surveillance capitalism”—a behavioral advertising business model that sells users’ data for immense profits.¹⁰ This profit motive arguably renders the platforms unreliable as self-regulators.¹¹ The outsized power of social media platforms to shape the expressive sphere, combined with their non-public regarding orientation, raises genuine concerns about the ongoing health of the political marketplace of ideas.

While the overwhelming power of the state has always—and rightly—been viewed as particularly perilous for the freedom of speech, dominant private actors, particularly those who either control or have disproportionate access to the means of communication, can likewise pose a threat to free speech. Is it possible to address such asymmetries of power consistent with the First Amendment? Should social media platforms be regulated to provide for the type of speech environment necessary for democracy? What are the normative attributes of a well-functioning sphere of political expression? More generally, what should be done to protect listeners, a category of democratic actor that tends to receive less scholarly attention than speakers?

This Article offers a preliminary analysis of these issues. It is organized in three parts. Part I begins by providing a brief overview of First Amendment doctrine as it applies to speakers and listeners. In addition, it outlines the three principal values—democracy, autonomy, and truth-seeking—that animate the First Amendment. For the purposes of the ensuing analysis, this Article adopts the view that the First Amendment is geared to promoting democratic self-government. Part I then sets out a normative account of a healthy expressive realm. A well-functioning political speech environment for speakers and listeners, I suggest, is one that is free of domination and coercion and in which acute asymmetries in political and economic power do not distort the capacity of individuals to engage in self-government, principally with respect to three central activities: (1) informed voting; (2) discussion and deliberation; and (3) meaningful participation. I claim further that the speech environment ought to protect individuals’ liberty, equality, epistemic, and nondomination interests in order to foster a healthy sphere of expression for these self-governing activities.

While this Article sets out an admittedly idealized account of what a well-functioning political speech environment would entail, and while such an account may never be attained in full (or even in part), a normative theory provides, I suggest, a useful benchmark by which to assess current challenges and their possible regulatory solutions.¹² To this end, Part I also identifies certain challenges posed by the digital public sphere, and, in addition, advances a claim of “digital exceptionalism”—the idea that the online world of expression has distinctive features that not only distinguish it from the non-digital world but that also pose unique and profound difficulties for the attainment of a well-functioning expressive realm.

Part II turns to First Amendment jurisprudence to see whether it enables the government to address the challenges posed by the digital world so as to provide for a well-functioning political speech environment. It begins by describing the positive conception of the First Amendment, under which the state is viewed as having an affirmative role in protecting the democratic public sphere from the distortive influence of powerful private entities. Part II then offers a snapshot view of the current law of public discourse, focusing in particular on campaign finance regulation and the Moody decision, to show that the Court has largely abandoned the positive conception in favor of an approach that prohibits the government from ensuring a greater diversity of expression.

While the Court’s approach protects listeners from the power of the state, it gives rise to the troubling conundrum that the political speech environment is left unprotected not only from the dominant power of private tech giants but also from the deficits of the digital public sphere. Neither the state nor the platforms protect listeners from the effects of acute asymmetries of private power. Indeed, many regulatory responses to the challenges of digital exceptionalism would likely fall afoul of the First Amendment. For this reason, the sizeable gap between the normative ideal of a well-functioning political speech environment and the often disheartening reality of the digital public sphere cannot be closed by contemporary First Amendment doctrine.

In response to this conundrum, Part III makes an argument for “countervailance,” which is, in essence, the idea that certain mechanisms could counter, or at least lessen, these asymmetries in power and their resulting deficits such that listeners’ interests are better protected, even if that protection does not rise to the level of establishing the kind of equality needed for self-governance. I briefly consider a suite of countervailing mechanisms—including disclosure and transparency rules, a narrow prohibition of false election speech, strategies to manage deepfakes, state-led incentives structures and norms, public jawboning, and civil society efforts—that can be deployed by public entities, social media platforms, and civil society institutions. Given First Amendment constraints, however, these measures are necessarily modest in their scope and cannot serve as full-blown solutions to the challenges of digital exceptionalism.

I. A Well-Functioning Speech Environment and its Challenges

This Part sets out a normative account of a well-functioning political speech environment. It also argues for “digital exceptionalism”—the idea that the challenges faced by the digital public sphere are unique and may therefore require a tailored regulatory response. To ground the discussion, I begin with a brief overview of First Amendment values and doctrine as they apply to speakers and listeners.

A. Speakers, Listeners, and the First Amendment

In his philosophical examination of the freedom of expression, T.M. Scanlon identifies three groups of interests: those of participants, audiences, and bystanders.¹³ Burt Neuborne’s Madisonian reading of the First Amendment likewise identifies a range of participants in a “neighborhood” of expressive freedom, including, most prominently, speakers and listeners.¹⁴ For Neuborne, listeners ought to be treated as equal partners, who, like speakers, require expressive freedom to develop their own identities and preferences.¹⁵ Speakers and listeners thus go hand in hand: the “free flow of ideas and information generated by autonomous speakers” is “essential to the ability of hearers to make the informed decisions on which the efficient functioning of choice-dependent institutions like democracy, markets, and scientific inquiry depend.”¹⁶

In First Amendment doctrine, however, listener interests play a limited role; indeed, such interests are typically protected to the extent that they correspond to speaker interests.¹⁷ To be sure, the underlying logic of the categorical approach to First Amendment jurisprudence—under which the Supreme Court has created tiers of speech based on the value of particular kinds of speech to public discourse—is implicitly oriented to the perspective of listeners.¹⁸ For instance, political speech is afforded maximum protection because it provides indispensable information for citizens to fulfill their democratic roles, while libel is accorded no value because defamatory statements do not enhance, and indeed detract from, reasoned discourse.

The Supreme Court has also recognized that under the First Amendment, listeners may enjoy a “right to know” or an “independent right to receive information.”¹⁹ Indeed, the right of listeners to receive a free flow of information has served as the basis of the First Amendment’s protection of commercial and corporate speech.²⁰ However, in the face of the Court’s increasingly deregulatory posture toward commercial speech, critics have argued that rather than protecting listener interests, the Court has subordinated them to corporate speech rights.²¹ Although speaker interests usually trump listener interests in the event of a conflict, there are some circumstances outside of public discourse in which listener interests can prevail. As Helen Norton explains, when “listeners have less information or power than speakers,” the law can prohibit speakers from providing false information or can require truthful disclosures with respect to, for example, consumer products or professional speech.²² The Supreme Court’s deregulatory turn on compelled professional speech,²³ however, has created uncertainty about the status of a broad range of consumer-protective regulations.²⁴

For both speakers and listeners, there are three principal values that animate the First Amendment: democratic self-government; autonomy or self-fulfillment; and truth seeking through the marketplace of ideas.²⁵ An additional value proposed by Vincent Blasi—checking the abuse of power—also seems particularly relevant for democratic self-government.²⁶ On this view, the freedoms of speech, assembly, and a free press provide a crucial countervailing force for checking the abuse of power by public officials.

However, there is considerable debate as to which value is predominant. According to Alexander Meiklejohn’s influential theory, the First Amendment is exclusively geared to producing a democratic system of government; hence, “[w]hat is essential is not that everyone shall speak, but that everything worth saying shall be said.”²⁷ Owen Fiss likewise argues that the “purpose of free speech is not individual self-actualization, but rather the preservation of democracy, and the right of a people, as a people, to decide what kind of life it wishes to live.”²⁸ On this view, individual autonomy is simply a means to achieve collective self-determination.²⁹

For Robert Post, however, the value of autonomy is inseparable from democratic self-government because democracy depends on the active participation of citizens.³⁰ Public discourse and free public debate—and, by extension, the autonomy of speakers—must be protected in service of democratic government.³¹ Some scholars place primacy on individual autonomy or self-realization apart from self-government,³² on the basis that, following Kant, all individuals possess the right to be treated as ends in themselves.³³ Finally, the value of truth seeking emphasizes the First Amendment’s role in protecting, and indeed maximizing, the free flow of information, in order for society to better pursue the truth. As stated by Justice Holmes, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”³⁴

This Article takes the view, as expressed by Cass Sunstein, that the First Amendment is “fundamentally aimed at protecting democratic self-government.”³⁵ The other values—autonomy, truth seeking, and checking the abuse of power—will be treated as serving the democracy value.

A related, but conceptually distinct, question concerns the role of the democratic state: should the government regulate speech in order to promote the democracy value? There are two competing constellations of ideas, which correspond roughly with the libertarian and egalitarian approaches to speech. The libertarian approach asserts that state regulation of speech is particularly dangerous for democracy. Speech itself is a form of power: it enables citizens to hold leaders to account and check the abuse of official power. Given state incentives to stifle dissent and criticism, content-based regulations of speech are prohibited save for a few tightly circumscribed and justified exceptions for particularly disfavored speech such as obscenity or libel.³⁶ The overall posture is one of distrust of government,³⁷ in keeping with what Vincent Blasi has termed the “pathological perspective,” whereby the First Amendment is “targeted for the worst of times.”³⁸ Under the libertarian approach, expressive liberties are best served by minimizing state regulation, thereby enhancing the free flow of information in the marketplace of ideas. In general, this constellation of ideas is associated with a negative rights approach to the First Amendment, under which the role of the state is to refrain from interfering with citizens’ freedom of speech.

The second, and opposing, constellation of ideas holds that the primary value of a system of free expression is to enable citizens to “to arrive at truth and make wise decisions, especially about matters of public import.”³⁹ Under the egalitarian approach, listeners have an interest in being exposed to a wide range of competing views.⁴⁰ However, due to certain factors, such as, for example, the cost of political advertising in the campaign finance context, the marketplace of ideas may be skewed toward elite viewpoints. Listeners would thus be deprived of hearing the full range of ideas and political preferences necessary to reach an informed decision. To ensure that listeners are fully informed, the government may have to impose restrictions in order for all points of view to have a roughly equal opportunity of being heard.⁴¹ As described in more detail below,⁴² this constellation of ideas is associated with a positive rights approach to the First Amendment, under which the government may have to take affirmative steps to protect individuals’ expressive freedoms.

B. A Normative Account of a Well-Functioning Speech Environment

As Justice Kagan observed, a “well-functioning sphere of expression” is “the whole project of the First Amendment.”⁴³ But what does it mean to have such a sphere of expression?⁴⁴ This Article argues, as a normative matter, for the promotion of a well-functioning political speech environment for speakers and listeners, one that is free of domination and coercion, and in which acute asymmetries in political and economic power do not distort the capacity of individuals to engage in various self-governing activities, including the following:

(1) Informed Voting: individuals form opinions on public matters based on reliable information in both digital and non-digital mediums, with access to a wide array of competing viewpoints, thereby engaging in informed voting;

(2) Discussion and Deliberation: individuals engage in discussion and deliberation with other citizens whether online or in person as an integral and ongoing democratic practice necessary to self-governing activities, including but not limited to voting; and

(3) Meaningful Participation: individuals participate meaningfully in the democratic process through a variety of avenues, including voting, deliberating, associating with others whether online or in-person, organizing events, consuming or producing political content online, petitioning, and the like, thereby ensuring governmental responsiveness and accountability.

The idea is that democratic citizens should be able to participate in the democratic process with full knowledge and equal freedom.

To foster a healthy expressive realm for these self-governing activities, I further claim that the speech environment ought to protect individuals’ liberty, equality, epistemic, and nondomination interests. The protection of these interests, I suggest, is required to ensure that public discourse is organized and conducted in a manner that serves the value of democratic self-government. To be sure, there will inevitably be conflicts among these interests that would require certain choices and tradeoffs to be made.⁴⁵ These interests may also overlap in various ways such that a given outcome could be described as involving, say, both equality and epistemic considerations. While it is beyond the scope of this Article to provide a full account of these interests and their possible conflicts, a few preliminary observations follow.

As described above with respect to the libertarian approach, individuals’ liberty interests are best served by the robust protection of their expressive and associational freedoms under the First Amendment.⁴⁶ Speakers ought to be able to freely express their political opinions and policy preferences, while listeners’ right to know should likewise be shielded from government censorship. In addition to their liberty interests, citizens have equality interests in being exposed to speech that reflects a wide range of competing views, ideas, and political preferences. As described above with respect to the egalitarian approach, the government may have to take affirmative steps to protect listeners’ equality interests in hearing a wide range of viewpoints because the marketplace of ideas may be skewed in favor of elite viewpoints.⁴⁷ The speech environment should also protect citizens’ epistemic interests in receiving accurate and reliable information, which is required for reaching good judgments. As Melissa Schwartzberg observes, these epistemic interests ought to also be understood to encompass the kinds of institutions and instruments needed to develop, inform, and assess such judgments.⁴⁸ To be sure, epistemic interests may overlap with equality intersts to the extent that good judgments depend upon an exposure to a wide range of viewpoints.

Finally, a healthy expressive environment should also protect democratic actors from domination or coercion. As Philip Pettit argues in his influential account of republican freedom, an individual has dominating power over another person to the extent that they have the capacity to interfere on an arbitrary basis in certain choices that the other is in a position to make.⁴⁹ An act of interference is arbitrary to the extent that the dominating agent is not forced to track the avowable or relevant interests of the victim but instead can interfere as their will or judgment dictates.⁵⁰ Individuals’ nondomination interests broadly capture the idea that speakers and listeners ought to be protected from the capacity of powerful agents, whether public or private, to interfere arbitrarily in their choices.⁵¹

While these four interests—liberty, equality, epistemic, and nondomination—apply to all three self-governing activities, they take different forms depending on the context. In addition, the self-governing activities overlap in various ways: meaningful participation may require informed discussion, for example. The discussion below provides additional details for each self-governing activity.

Informed Voting

Freedom of speech is a precondition for informed voting. As noted by the Supreme Court, the First Amendment has the objective of “securing . . . an informed and educated public opinion with respect to a matter which is of public concern.”⁵² Voters learn about the key issues at stake in the election, the differences among political candidates, and the main features of the platforms of various political parties. As Meiklejohn observes, the well-being of the political community depends on the wisdom of voters to make good decisions.⁵³ For voters to make wise decisions, they must be aware, to the extent possible, of all the relevant facts, issues, considerations, and alternatives that bear upon their collective life.

Thus, a well-functioning political speech environment provides voters with epistemically reliable information on matters of public import from a wide range of competing sources and perspectives. For this to take place, speakers’ liberty interests must be fostered, and listeners’ equality, epistemic, and nondomination interests must be satisfied. Under these conditions, listeners as voters have access to the information they need to understand matters of public concern.

Discussion and Deliberation

Discussion and deliberation are crucial activities for those individuals we formally deem to be speakers. However, listeners are also, at times, speakers. Listeners do not develop their views in a vacuum: the activities of discussion and deliberation require democratic listeners to engage with others as they evaluate matters of public importance. The idea here is one of active listening, which involves not just the passive receipt of information but requires discussion and debate. Informal conversations among listeners enable them to consider issues of public policy and to make up their minds about what is best for their common lives—activities that lie at the heart of self-government. The First Amendment is principally concerned with the “authority of the hearers to meet together, to discuss, and to hear discussed by speakers of their own choice, whatever they may deem worthy of their consideration.”⁵⁴

As such, the normative account offered here departs in significant ways from Habermas’s formal account of ideal deliberation. Habermas’s theory of the “ideal speech situation” envisions a reasoned discussion among free and equal participants who aim for consensus by being persuaded by the force of the better argument.⁵⁵ Formal accounts of deliberative democracy, while differing in various respects, all tend to share a commitment to reaching collective decisions through public reasons, that is, reasons that are generally persuasive to all the participants in the deliberation.

However, in my view, this ideal form of deliberation is not mandatory in order to achieve a well-functioning sphere of expression. Instead, as John Dryzek observes, deliberation can include informal discussion, humor, emotion, and storytelling.⁵⁶ Rather than requiring consensus, we should instead focus on the values of mutual respect, reciprocity, cooperation, and compromise.⁵⁷ That being said, a basic predicate of a well-functioning speech environment is that speakers and listeners can engage in discussion, debate, and deliberation free of coercion, harassment, and deception.

To be sure, deliberation has come under criticism for being exclusionary because it tends to favor advantaged citizens.⁵⁸ Critics have also charged that deliberation is simply unfeasible given the complexity of democratic institutions⁵⁹ or is difficult to realize in practice given the realities of electoral campaigns.⁶⁰ In addition, deliberation may accentuate group polarization.⁶¹ These criticisms underscore the need for a more capacious and inclusive understanding of deliberation.

Meaningful Participation and Governmental Responsiveness

A well-functioning political speech environment must also facilitate meaningful participation by listeners and speakers. Participation can take many forms, including voting and deliberating, but can also include such activities as joining a political party, attending a town hall or a candidate rally, volunteering for a political cause, penning an op-ed, marching and protesting, organizing a petition, or running for office. Meaningful participation has online analogues, such as reading or posting messages on social media platforms, consuming or developing political content, reading or writing blogs, listening to podcasts, or running websites. Citizens engage in meaningful participation when they criticize public officials or government policies. Or when they join forces with like-minded others and vote for change. Or when they organize to influence public policy and legislation. All of these activities depend upon a robust sphere of expressive freedom.

Meaningful participation could also be understood as requiring a relatively equal opportunity to influence the outcome of an election. On this view, listeners as voters would have a strong interest in ensuring a somewhat level electoral playing field.⁶² Meaningful citizen participation is also crucial for ensuring governmental responsiveness and accountability. By communicating and associating with one another, citizens can join together to vote for new political leaders. The threat of being removed from office in the next election is one of the most effective mechanisms for ensuring governmental accountability. A well-functioning speech environment is thus indispensable to ensure that state power is responsive to the interests of citizens.

C. Digital Exceptionalism

Does the digital public sphere provide the conditions necessary to foster a well-functioning political speech environment? In what follows, I identify the central features of what I shall call “digital exceptionalism,” the idea that the digital public sphere has distinctive features that not only distinguish it from the non-digital world but that also pose unique challenges for the promotion of a healthy expressive realm.

A principal challenge is that social media platforms wield vast “asymmetries of knowledge and power” over their users.⁶³ The platforms act as private governors of online speech—enacting, implementing, and enforcing the rules that govern online expression.⁶⁴ In addition, their power is remarkably concentrated: the digital public sphere is controlled in the main by three companies—Apple, Google, and Meta—that serve as the gatekeepers to online public discourse.⁶⁵ To be sure, the media landscape in the pre-digital age was likewise highly concentrated: three networks shaped the news on television and a small handful of newspapers comprised the national market.⁶⁶ This concentration of pre-digital media power is likewise problematic for it undoubtedly reduced the plurality of differing points of view. However, certain mitigating features of the pre-digital public sphere are either absent, or greatly attenuated, in the digital world, and conversely, certain features unique to the digital world amplify the dangers posed by these power asymmetries. I briefly canvass a few of the relevant distinctions, noting, first, that these observations capture general trends and, second, that there are, of course, notable exceptions to each of these distinctions.

The first difference is that the pre-digital news media exerted a “strong gatekeeper” approach as compared to the “weak gatekeeper” approach of social media platforms.⁶⁷ The traditional news media is bound by journalistic standards of objectivity and factual reliability. By contrast, social media platforms impose far fewer gatekeeping controls: while they filter certain prohibited topics such as graphic violence and pornography and rank or label other sorts of disfavored messages, there is far less ex ante quality control. Indeed, as of this writing, Meta has announced that it will eliminate fact checkers in the U.S. and rely instead on a “community notes” system similar to X (formerly Twitter).⁶⁸

Second, as a result of this weak gatekeeping, there is said to be higher levels of misinformation on social media platforms. For example, Elon Musk’s false or misleading claims about elections accrued nearly 1.2 billion views on the social media platform X.⁶⁹ Recent empirical evidence suggests, however, that the degree of exposure to misinformation tends to be overstated with respect to the vast majority of users, at least in North America and Europe.⁷⁰ Jurisdictions that rely heavily on social media, however, may have different outcomes. For instance, digital misinformation has proved to be a serious challenge in Brazil, with 90% of Bolsonaro supporters believing at least one piece of fake news in 2018.⁷¹ In addition, deepfake technology may pose significant challenges for public discourse in the future.⁷² This is particularly true as the capacity to generate deepfakes using generative AI will soon outstrip both the platforms’ and users’ ability to detect them.⁷³ A counterpoint, however, is that AI was used extensively, reportedly in a largely successful manner, in India’s recent national election, wherein politicians connected with voters by including deepfake impersonations of candidates and deceased politicians in campaign materials.⁷⁴

A third difference is that social media platforms create a loss of epistemic trust. The decline in trust, rather than truth, may ultimately prove to be more damaging to the public sphere. Experimental evidence suggests that while exposure to deepfakes did not mislead participants, it left them feeling uncertain about the truthfulness of content.⁷⁵ This uncertainty, in turn, led to lower levels of trust with respect to news on social media. Researchers surmise that an increase in political deepfakes “will likely damage online civic culture by contributing to a climate of indeterminacy about truth and falsity that, in turn, diminishes trust in online news.”⁷⁶ Epistemic distrust “can severely undermine a sense of democratic legitimacy among large parts of society.”⁷⁷ The decay of trust also benefits leaders with authoritarian impulses.⁷⁸ By contrast, in the pre-digital world, misinformation in public discourse was counteracted by civil society organizations, in particular the traditional news media, which maintained common standards for accuracy and objectivity, thereby instilling widespread trust in epistemic authorities.⁷⁹

Fourth, social media platforms generate “epistemic fragmentation”—the idea that citizens no longer share a common set of facts and understandings about political life.⁸⁰ Social media platforms tailor content for each user, leading to what Sunstein has dubbed “the Daily Me.”⁸¹ Platforms also enable political campaigns to engage in microtargeting so that political advertising messages vary depending on the race and gender of the recipient. By contrast, citizens under the traditional news media paradigm were more likely to engage with the same news stories.⁸² This fragmentation has compounded challenges to epistemic trust because “citizens no longer trust the same sources of information, and the reliability of the sources they do trust varies substantially.”⁸³

A fifth difference is that social media platforms rely on behind-the-scenes algorithms to do the vast majority of content filtering, in an effort to provide listeners with the kind of filtered experience that each user is seeking.⁸⁴ Because the predominant characteristic of the expressive environment online is the scarcity of listener attention, an important “means of controlling speech is targeting the bottleneck of listener attention, instead of speech itself.”⁸⁵ As a result of this algorithmic filtering, Erin Miller argues that media companies could exert “skewing power” over certain “consumers’ information pools in a way that prevents them from forming epistemically justified beliefs.”⁸⁶

Finally, social media platforms “were not created principally to serve democratic values and do not have as their lodestar the fostering of a well-informed and civically minded electorate.”⁸⁷ Instead, the platforms engage in “surveillance capitalism,” trading users’ behavioral data for vast profits.⁸⁸ This behavioral advertising business model depends on maximizing the amount of time users engage with social media. A variety of deleterious phenomena are thus good for the bottom line, including addictive behavior, sensationalist and divisive content, and weakened privacy norms.⁸⁹ Unlike the traditional news media, internet platforms “are not built to create a digital public sphere of common concern.”⁹⁰ In addition, the platforms’ system of private governance threatens citizens’ opportunities to engage meaningfully in democratic participation, particularly in light of their lack of accountability to users.⁹¹

These features of the digital public sphere, taken together, raise serious questions about whether the online speech market provides the conditions necessary to sustain a well-functioning political speech environment. As of this writing, the asymmetry of power between platforms and users has arguably been heightened by the intertwining of governmental and private tech interests. Because social media platforms exert asymmetrical power on users in a way that does not track the public interest, this gives rise to the apprehension that listeners’ interests in nondomination are not satisfied. By contrast, selection intermediaries that act in public-regarding ways, such as a well-run national broadcasting corporation, do not pose the same degree of risk. To be sure, traditional media could also exert dominating power on their listeners to the extent they are not forced to track listeners’ avowable interests in a well-functioning public sphere. What matters is whether the selection intermediary is upholding public-regarding standards such as the provision of accurate information and a diversity of competing viewpoints.

Digital exceptionalism does not mean that the government must intervene in a way that differs from its regulation of traditional news media. Instead, the distinctive features of the digital public sphere suggest that a specialized and tailored set of regulatory responses may be warranted to foster a well-functioning speech environment. Jack Balkin’s distinction between the “old-school” speech regulation of the predigital world and the “new school” speech regulation of digital intermediaries seems applicable.⁹² Finally, the concerns raised here do not amount to a blanket condemnation of social media platforms. These platforms provide a range of goods such as entertainment, commerce, convenience, and connection that are rightly valued by consumers.

II. Law and the Speech Environment

To what extent is the normative account outlined in Part I reflected in First Amendment jurisprudence? Or to put the question another way: does the First Amendment offer any conceptual resources that would enable the government to respond to the challenges posed by digital exceptionalism? While it is beyond the scope of this Article to provide a comprehensive answer to these questions, this Part begins by briefly describing the positive conception of the First Amendment, under which the state’s role is to affirmatively protect the democratic public sphere from powerful private actors. Part II then offers a snapshot view of the current law of public discourse,⁹³ focusing in particular on campaign finance regulation and the Moody decision to show that the Supreme Court has for the most part abandoned the positive conception and, as a result, has significantly restricted the range of allowable regulatory responses to the deficits of digital exceptionalism.

A. The First Amendment as a Positive Right

A positive conception of the First Amendment, as mentioned above, holds that the government may have to take affirmative steps to protect expressive freedom from powerful private entities.⁹⁴ Owen Fiss asserts, for instance, that “the impact that private aggregations of power have upon our freedom” means that “sometimes the state is needed simply to counteract these forces.”⁹⁵ The state has a duty to “preserve the integrity of public debate” in order to “safeguard the conditions for true and free collective self-determination.”⁹⁶ In keeping with this duty, the state may have to intervene to protect the “robustness of public debate in circumstances where powers outside the state are stifling speech.”⁹⁷ Sunstein argues for a “New Deal for speech” under which the supposed democratic interferences with the autonomy of private actors are not abridgements of speech; indeed, the autonomy of private actors is itself a product of law and may amount to an abridgment.⁹⁸ As such, “what seems to be government regulation of speech might, in some circumstances, promote free speech, and should not be treated as an abridgment at all.”⁹⁹

As Genevieve Lakier observes, the Supreme Court understood the freedom of speech as having a positive dimension during the New Deal and Warren Court eras.¹⁰⁰ That is, the First Amendment did not only provide individuals with personal expressive freedom; it also provided them with the means for democratic self-government.¹⁰¹ For example, in Red Lion Broadcasting Co. v. FCC, the Supreme Court upheld, against a First Amendment challenge, the FCC’s fairness doctrine, which required broadcasters to provide adequate and fair coverage to public issues in a way that accurately captured competing viewpoints.¹⁰² According to the Court, the fairness doctrine furthered the “First Amendment goal of producing an informed public capable of conducting its own affairs.”¹⁰³ However, in the ensuing years, the Court has largely abandoned the positive conception of

the First Amendment,¹⁰⁴ including in the campaign finance context, as discussed below.

B. Public Discourse and Campaign Finance Regulation

The Supreme Court has interpreted the First Amendment as providing the highest possible protection to public discourse due to its centrality to self-government. One of the main ways in which public discourse—specifically electoral speech—is regulated is through campaign finance law.¹⁰⁵ In recent years, the Supreme Court has taken a deregulatory posture to campaign finance law, striking down significant parts of the legal infrastructure governing money in politics. This skepticism was apparent in an early landmark case, Buckley v. Valeo,¹⁰⁶ in which the Court struck down limits on campaign expenditures because they were not justified by the government’s interest in preventing the actuality and appearance of corruption. In Buckley, the Court explicitly rejected the egalitarian—or equalization—rationale, stating that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”¹⁰⁷ Hence, the “governmental interest in equalizing the relative ability of individuals and groups to influence the outcome of elections” did not justify expenditure limits.¹⁰⁸ The Buckley court found, however, that limits on campaign contributions were justified by the government’s interest in preventing corruption and its appearance. The provision of large contributions “to secure political quid pro quos from current and potential office holders” undermined the integrity of representative democracy.¹⁰⁹

In a subsequent decision, Austin v. Michigan State Chamber of Commerce,¹¹⁰ the Supreme Court broadened the definition of corruption beyond quid pro quo corruption to encompass the concept of antidistortion which arose from the “corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas.”¹¹¹ The antidistortion concept was ultimately based on an equality rationale.¹¹² Concentrated corporate wealth gives certain voices far greater political influence than others due to the fact that speech is expensive.¹¹³ As a result of these inequities in speech capacities, listeners do not have access to the full range of views, which may affect their voting patterns and, hence, skew electoral outcomes. In McConnell v. FEC,¹¹⁴ the Court held that corruption also encompassed the “undue influence on an officeholder’s judgment, and the appearance of such influence.”¹¹⁵ Undue influence arises when political parties sell special access to federal candidates and officeholders, thereby creating the perception that money buys influence. The undue influence standard is concerned with the skew in legislative, rather than electoral, outcomes.

The Supreme Court’s decision in Citizens United v. FEC,¹¹⁶ however, marked a turning point, implicating listener interests in at least four ways. First, the Supreme Court rejected Austin’s antidistortion rationale on the basis that it was actually an equalization rationale in violation of Buckley’s central tenet that the First Amendment prevents the government from restricting the speech of some in order to enhance the voice of others. The Court held that preventing quid pro quo corruption or the appearance thereof was the only governmental interest strong enough to overcome First Amendment concerns. Listener interests in the maintenance of a relatively level electoral playing field were undercut by this decision. In other cases, the Court has rejected equality-based arguments on the grounds that leveling the electoral playing field is impermissible under the First Amendment.¹¹⁷

Second, the Court held in Citizens United that corporations were henceforth allowed to spend unlimited sums from their general treasury funds as independent expenditures. According to the Court, independent expenditures do not give rise to the actuality or appearance of quid pro quo corruption. This reasoning gave rise to the emergence of Super PACs. In a subsequent case, SpeechNow.org v. FEC,¹¹⁸ a lower court struck down contribution limits on PACs that engaged exclusively in independent spending—entities that are now known as Super PACs. Super PACs can accept unlimited contributions from individuals, corporations, and labor unions to fund independent ads supporting or opposing federal candidates. Listener interests are arguably undermined by the phenomenon of Super PACs: these entities have changed the political landscape by flooding huge sums of money into elections.¹¹⁹ Not only is coordination with candidates a reality,¹²⁰ but Super PACs lack accountability and transparency relative to political parties and candidates, thereby further decreasing the influence of individual listeners on the democratic process.

Some may argue, however, that the increases in corporate advertising, and hence in available information, are beneficial to listeners. Indeed, the Court majority in Citizens United took this position, stating that the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”¹²¹ The Court also asserted that “it is inherent in the nature of the political process that voters must be free to obtain information from diverse sources in order to determine how to cast their votes.”¹²²

Third, Citizens United and the deregulatory turn it ushered in, has broader implications for democracy. Money skews legislative priorities because it provides legislative access to large donors and lobbyists.¹²³ While access does not guarantee legislative outcomes, it is required to exert political influence. As such, officeholders are disproportionately responsive to the wishes of large donors than to other constituents.¹²⁴ Empirical studies have shown, for instance, that elected representatives are more responsive to the preferences of the affluent than to the preferences of low-income and middle-income individuals.¹²⁵ The emphasis on the donor class disproportionately impacts the participation and representation of people of color and ordinary citizens.¹²⁶ Empirical research has demonstrated that donors “are not only wealthy, they are almost all white.”¹²⁷ This racial gap has an impact on representation by affecting the electoral candidate pool and the behavior of legislators in office.¹²⁸

Finally, listener interests were at issue in the Court’s holding that disclosure and disclaimer requirements survived exacting scrutiny. The Court found that disclosure was “justified based on a governmental interest in ‘provid[ing] the electorate with information’ about the sources of election-related spending.”¹²⁹ The transparency resulting from disclosure “enables the electorate to make informed decisions and give proper weight to different speakers and messages.”¹³⁰ Abby Wood argues that disclosure provides multiple informational benefits for voters.¹³¹ By contrast, critics argue that disclosure rules violate privacy and raise the risk of retaliation. In a recent decision, Americans for Prosperity Foundation v. Bonta,¹³² however, the Supreme Court has made it easier for disclosure laws to be found unconstitutional.¹³³

C. Public Discourse and Social Media Platforms

In the campaign finance realm, listeners’ liberty interests in unrestricted access to the commercial speech market are protected. However, their equality interests in a relatively level electoral playing field are significantly undermined. A similar pattern is evident in the emerging law of social media platform regulation. Listeners’ liberty interests are largely protected on social media platforms given the sheer volume of information available, but their equality interests in a level electoral playing field, an open deliberative sphere, and access to competing viewpoints appear to be compromised in the online world. As described in Part I.C above, listeners’ epistemic and nondomination interests are likewise threatened as a result of the key features of digital exceptionalism.

In Moody v. NetChoice, LLC,¹³⁴ the Court considered the constitutionality of state laws from Florida and Texas that restricted the ability of social media platforms to engage in content moderation. The laws required internet platforms to carry speech that might otherwise be demoted or removed due to the platforms’ content moderation policies.¹³⁵ The laws also required a platform to provide an individualized explanation to any user whose posts had been altered or removed.¹³⁶ The states’ underlying concern was that the platforms were politically biased and were unfairly silencing the voices of conservative speakers.¹³⁷ NetChoice, an internet trade association, brought facial challenges to the laws. The U.S. Court of Appeals for the Eleventh Circuit upheld a preliminary injunction, finding that the Florida law likely violated the First Amendment.¹³⁸ However, the Court of Appeals for the Fifth Circuit reversed a preliminary injunction of the Texas law, partially on the basis that the platforms’ content moderation activities did not amount to speech, and hence did not infringe the First Amendment.¹³⁹

Writing for the Supreme Court in Moody, Justice Kagan vacated the lower court decisions and remanded the cases, on the grounds that there was an insufficient record to sustain a facial challenge.¹⁴⁰ While the Court was unanimous that NetChoice’s facial challenge had failed, Justice Kagan, speaking for a six-member majority,¹⁴¹ nonetheless proceeded to provide substantive guidance as to how the lower courts should conduct the facial analysis.

The Court majority’s central proposition was that the laws in question infringed the First Amendment rights of large social media platforms (specifically with respect to Facebook’s NewsFeed, YouTube’s homepage, and the like). Drawing an analogy to newspapers, the Court asserted that such platforms should be viewed as speakers with the right to compile and curate the speech of others. Justice Kagan relied on Miami Herald Publishing Company v. Tornillo,¹⁴² in which the Court had struck down a right-of-reply law that required newspapers to print the reply of any political candidate who received critical coverage in their pages. In Tornillo, the Court held that the First Amendment protects newspaper editors in their “exercise of editorial control and judgment.”¹⁴³ The Court majority drew upon additional cases—involving a private utility’s newsletter (Pacific Gas and Electric Co. v. Public Utilities Commission of California),¹⁴⁴ must-carry rules for cable operators (Turner Broadcasting System, Inc. v. FCC),¹⁴⁵ and regulations affecting parades (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc.)¹⁴⁶—to find that the First Amendment prohibits the government from directing a private entity to include certain messages where that entity is curating the speech of others to create its own expressive product.¹⁴⁷

In the same way, the curating activity of social media platforms amounts to expressive activity protected by the First Amendment. Justice Kagan noted that Facebook’s News Feed and YouTube’s homepage use algorithms to create a personalized feed for each user.¹⁴⁸ Their content moderation policies filter prohibited topics, such as pornography, hate speech, and certain categories of misinformation, and rank or label disfavored messages. In making these choices, social media platforms “produce their own distinctive compilations of expression.”¹⁴⁹ The Moody majority thus appears to have resolved the debate as to whether platforms should be treated as publishers or as common carriers under the First Amendment (at least with respect to Facebook’s NewsFeed and the like).¹⁵⁰

Consistent with the campaign finance context, the Court majority was adamant that the First Amendment prevents the state from interfering with “private actors’ speech to advance its own vision of ideological balance.”¹⁵¹ Government may not “decide what counts as the right balance of private expression,” and must instead “leave such judgments to speakers and their audiences.”¹⁵² This principle holds true even when there are credible concerns that certain private parties wield disproportionate expressive power in the marketplace of ideas. The majority noted that the regulations in Tornillo, PG&E, and Hurley “were thought to promote greater diversity of expression” and “counteract advantages some private parties possessed in controlling ‘enviable vehicle[s]’ for speech.”¹⁵³ The Court also drew on its campaign finance jurisprudence, citing Buckley’s proposition that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.”¹⁵⁴ Justice Kagan argued that “[h]owever imperfect the private marketplace of ideas, here was a worse proposal—the government itself deciding when speech was imbalanced, and then coercing speakers to provide more of some views or less of others.”¹⁵⁵

In a concurring judgment, Justice Alito (joined by Justices Thomas and Gorsuch) agreed with the majority’s facial unconstitutionality argument but took issue with the majority’s First Amendment analysis. Justice Alito argued that the states’ laws, at least in some of their applications, appeared to regulate passive carriers of third-party speech, which receive no protection under the First Amendment.¹⁵⁶ He criticized the majority for failing to address the states’ argument that Facebook and YouTube amount to common carriers,¹⁵⁷ as did Justice Thomas in a separate concurrence.¹⁵⁸ Justice Alito also seemed more sympathetic to the states’ concerns, noting that the content moderation decisions of social media platforms can have “serious consequences,” including impairing “users’ ability to speak to, [and] learn from,” others; impairing a political candidate’s “efforts to reach constituents or voters”; compromising “the ability of voters to make a fully informed electoral choice”; and exerting “a substantial effect on popular views.”¹⁵⁹ He described the Florida law as an attempt “to prevent platforms from unfairly influencing elections or distorting public discourse,”¹⁶⁰ in a manner reminiscent of the very antidistortion arguments that were rejected by the conservative Justices in the campaign finance context.

III. Possibilities for Countervailance

The Moody majority’s stance was consistent with a long line of precedent that has treated state control of speech with grave distrust. By “requir[ing] the platforms to carry and promote user speech that they would rather discard or downplay,”¹⁶¹ the states’ content moderation policies violated a central tenet that the government may not influence the content of speech. However, the Supreme Court’s interpretation of the First Amendment gives rise to a genuine conundrum: although this approach protects listeners from the power of the state, it does not protect the speech environment from the power of the platforms nor from the deficits that ensue from digital exceptionalism. Indeed, actions on the part of the state that would amount to an effective fix of the challenges of digital exceptionalism would very likely involve too great a governmental intrusion into expressive freedom. Hence, the gap between the ideal of a well-functioning speech environment and the challenges of digital exceptionalism cannot be resolved without dramatic changes to current First Amendment jurisprudence. As a result, there is a very narrow space for measures that might lessen the deleterious effects of digital exceptionalism without falling afoul of the First Amendment.

In light of this conundrum, this Part canvasses some possibilities for countervailance; that is, mechanisms that could lessen the deficits of the digital public sphere such that listeners’ interests are better protected, even if that protection does not rise to the level of establishing the kind of equality required for democratic self-governance. With respect to the challenge of disinformation in social media, I have argued elsewhere for a “multifaceted public-private approach that employs a suite of complementary tactics including: (1) disclosure and transparency laws; (2) content-based regulation and self-regulation; (3) norm-based strategies; and (4) civic education and media literacy efforts.”¹⁶² Using Canada as a case study, I suggested that the “combined and interactive effects of a multifaceted approach provide helpful protections against some of the harms of disinformation while still protecting the freedom of speech.”¹⁶³

A similar type of approach might be an appropriate way to think about countervailance. The idea is not that any one countervailing tactic will protect listener interests. Instead, the combined and interactive effects of a number of measures may serve as a countervailing force against the immense power of social media platforms. A caveat, however, is in order. These countervailing measures are imperfect, even deeply so, in terms of their ability to counter the challenges of digital exceptionalism. These measures will not on their own bring about a well-functioning speech environment; instead, they will bring such an environment closer to realization. Hence, the effect of this countervailance will no doubt be modest: listeners would still very much be at the mercy of the platforms. The objective would be to at least lessen the acuteness of the asymmetry and its resulting deficits.

Indeed, the majority opinion in Moody suggests that there are possibilities for regulation. Justice Kagan acknowledged, for instance, that “[i]n a better world, there would be fewer inequities in speech opportunities; and the government can take many steps to bring that world closer.”¹⁶⁴ Citing Turner I,¹⁶⁵ Justice Kagan explicitly recognized that the “government can take varied measures, like enforcing competition laws, to protect th[e] access”¹⁶⁶ to information from many sources. In recent years, the federal government has been pursuing antitrust cases against Google, Meta, and Amazon. The Court majority also noted that “[m]any possible interests relating to social media” can meet the First Amendment intermediate scrutiny test.¹⁶⁷ The Court was pointed in its assertion that “nothing said here puts regulation of NetChoice’s members off-limits as to a whole array of subjects.”¹⁶⁸

In what follows, I briefly canvass an array of countervailing mechanisms, including disclosure and transparency rules; a narrow prohibition of false election speech; strategies to manage deepfakes; state-led incentive structures and norms, including mechanisms to provide listeners with increased choices and powers of their own; public jawboning; and civil society efforts. Each of these measures warrants a far more extensive treatment—particularly with respect to their advantages and disadvantages—than I am able to offer here. Although it is beyond the scope of this brief discussion to attempt anything more than a cursory analysis, I hope that it nonetheless provides some indication of the kinds of possibilities that merit attention.

A. Disclosure and Transparency

As described above, disclosure provides multiple informational benefits for voters, including not only the content of the disclosures but also their quality and the amount of information provided.¹⁶⁹ Disclosure and disclaimers with respect to online political advertising would help to facilitate counterspeech and deter disinformation.¹⁷⁰ Disclosure would also provide listeners with the context they need to assess political advertising. That being said, the disclosure regimen in the campaign finance context is subject to various limitations, including structural barriers to connecting disclosures to voters and enforcing disclosure rules against violators.¹⁷¹ Disclosure rules have also been criticized for violating privacy, raising the risk of retaliation, chilling speech, and discouraging political participation.¹⁷²

Outside of the campaign finance context, online platforms could increase transparency about the content curation decisions they make. Transparency requirements are also an appropriate regulatory response to political disinformation.¹⁷³ Compared to other regulatory responses, transparency laws have various benefits: they provide additional information to consumers, allow for public accountability, and nudge companies to make better decisions in anticipation of public disclosure.¹⁷⁴ In his concurring opinion in Moody, Justice Alito remarked that the platforms are providing various disclosures under the European Union’s Digital Services Act, and that “complying with that law does not appear to have unduly burdened each platform’s speech in those countries.”¹⁷⁵ Justice Alito further suggested that courts on remand should investigate whether such disclosures chilled the platforms’ speech.

B. False Election Speech

In general, falsehoods and lies are constitutionally protected speech.¹⁷⁶ As Sunstein observes, “[p]ublic officials should not be allowed to act as the truth police” because if they are empowered to “punish falsehoods, they will end up punishing dissent.”¹⁷⁷ There are, of course, a few narrow exceptions to the general rule that false statements are protected speech, such as, for example, regulations concerning defamation and false or misleading advertising.

The best response to false speech is not censorship but counterspeech. As the Supreme Court plurality noted in United States v. Alvarez, “[t]he remedy for speech that is false is speech that is true. This is the ordinary course in a free society.”¹⁷⁸ Abby Wood observes that as a remedy for disinformation, counterspeech “fits well in the court’s ‘marketplace of ideas’ theory of the First Amendment.”¹⁷⁹ Lies stated by a candidate during an election campaign should likewise be addressed by the counterspeech of the candidate’s political opponent.¹⁸⁰ That being said, counterspeech is often ineffective given the realities of echo chambers and the partisan divide in the news media.

Although restrictions on false speech are generally unconstitutional, a narrowly drawn prohibition of false election speech aimed at disenfranchising voters might survive constitutional scrutiny.¹⁸¹ Such a prohibition would target the mechanics of voting. Indeed, in Minnesota Voters Alliance v. Mansky, the Supreme Court indicated that false speech about when and how to vote could be banned by the government.¹⁸² The government’s compelling interest in protecting the right to vote could serve as the justification for the law. An additional consideration is that false speech about the mechanics of voting would be difficult to redress with counterspeech particularly in the few days leading up to an election.¹⁸³

C. Deepfakes and AI

Deepfake technology poses serious threats of harm to democracy, including by distorting public discourse, eroding citizens’ trust in news media, and manipulating elections.¹⁸⁴ There have been several attempts to regulate deepfakes by the states,¹⁸⁵ such as legislation in California and Texas that prohibited the use of deepfakes within a designated pre-election period.¹⁸⁶ However, deepfakes are better regulated—by both public officials and private entities—through disclosure and counterspeech rather than by outright bans.¹⁸⁷ Disclosure requirements could, for example, label deepfakes as “altered.”¹⁸⁸

To be sure, there are real dangers to having the government determine what is true and false, which suggests that laws regulating deepfakes should be treated with caution. If platforms on their own accord institute deepfake bans, they should exempt parody, education, or art, and should provide accountability to users for any speech that is suppressed, including a meaningful opportunity to contest the decision.¹⁸⁹A growing challenge facing both public and private interventions, however, is that it will become increasingly difficult to detect deepfakes, particularly given the availability of generative AI.¹⁹⁰ As the technology advances, the capacity to create deepfakes “will diffuse and democratize rapidly.”¹⁹¹

D. Incentives and Norms

The government can also use incentive structures to pressure platforms into making responsible choices about the democratic public sphere. For example, online platforms are protected from liability for hosting third-party content under Section 230 of the Communications Decency Act—a protection that arguably encourages platforms to moderate harmful speech and thereby perform a task that the government is not permitted to do.¹⁹² Platforms may also be motivated to respond to harmful content out of a concern that the government could amend Section 230 if they fail to take action (although this eventuality is, of course, dependent on the priorities of the incumbent administration).¹⁹³ The Digital Services Act promulgated by the European Union provides a more extensive regulatory model, one that is unlikely to be adopted in the U.S. It imposes several mandatory obligations on platforms, including transparency, notice-and-takedown systems, internal complaint handling systems, deplatforming, and independent auditing.¹⁹⁴

The government could also create incentives for platforms to provide users with greater control over the content they receive. Many platforms already enable users to block or mute content they do not wish to see. However, they could take additional steps to enable users to actively moderate their own feeds.¹⁹⁵ In addition, the government could impose data interoperability requirements, thereby enabling users to easily move their data across platforms.¹⁹⁶ Platforms that violate users’ rights would lose followers in favor of rival platforms with healthier environments.¹⁹⁷ To be sure, greater user control could also lead to greater epistemic fragmentation if users choose to avoid competing viewpoints.

Public-regarding behavior could be indirectly encouraged by such mechanisms as digital charters.¹⁹⁸ These public-private norm-based initiatives “identify standards, best practices, and objectives to govern the digital world.”¹⁹⁹ For example, the Declaration of Electoral Integrity, an initiative between the Canadian government and the major platforms, endorsed the values of integrity, transparency, and authenticity as the pillars of a healthy political discourse.²⁰⁰ Another initiative, the Digital Charter, identified ten principles, including universal access; safety and security; control and consent; transparency, portability and interoperability; a level playing field; strong enforcement and real accountability.²⁰¹ Although these norm-based approaches were not legally binding, they identified democracy-enhancing norms that could serve as a “standard by which to judge actions taken or not taken.”²⁰²

E. Public Jawboning

Can public jawboning play a salutary role as a countervailance mechanism? A recent Supreme Court decision, Murthy v. Missouri,²⁰³ involves what is colloquially referred to as “jawboning,” which takes place when the government pressures private actors to take certain actions without directly using its coercive power to do so. In Murthy, the record revealed that, over the last few years, White House and other federal officials had routinely communicated with social media platforms about misinformation related to COVID-19 vaccines and electoral processes. Some of these communications were public: government officials, in response to vaccine misinformation on the platforms, opined that reforms to antitrust laws and to Section 230 of the Communications Decency Act may be in order.²⁰⁴ Other communications were private: officials in the White House, CDC, FBI, and CISA “regularly spoke” with platforms about misinformation over several years.²⁰⁵ The District Court for the Western District of Louisiana had issued a preliminary injunction, which was affirmed by the Fifth Circuit, on the basis that government officials had “coerced or significantly encouraged” the platforms to censor disfavored speech in violation of the First Amendment.²⁰⁶

In a 6-3 majority opinion by Justice Barrett, the Supreme Court overturned the Fifth Circuit’s decision on standing grounds.²⁰⁷ Dissenting in Murthy, Justice Alito (joined by Justices Thomas and Gorsuch) asserted that the issue was whether the government engaged in “permissible persuasion” or “unconstitutional coercion.”²⁰⁸ While the government may inform and persuade, it is barred under the First Amendment from coercing a third party into suppressing another person’s speech.²⁰⁹ Drawing on the Court’s approach in National Rifle Association v. Vullo,²¹⁰ Justice Alito analyzed three factors—the authority of the government officials; the nature of the statements made by those officials; and the reactions of the third party alleged to have been coerced—to find that the government had engaged in coercion.²¹¹

Ashutosh Bhagwat draws a helpful distinction between public jawboning and private jawboning: while public jawboning should rarely be considered coercive, in large part because government actors routinely hector corporations and often do so as part of their official responsibilities, private jawboning can sometimes amount to unconstitutional coercion.²¹² However, “[d]etermining when private jawboning crosses the constitutional line . . . raises extremely difficult questions,” which require courts to engage in a highly contextual analysis.²¹³ Justice Alito contended, for instance, that while the coercion in Murthy was “more subtle than the ham-handed censorship found to be unconstitutional in Vullo . . . it was no less coerceive.”²¹⁴ The danger is that if “a coercive campaign is carried out with enough sophistication, it may get by.”²¹⁵ Ilya Somin catalogues the various ways in which government agencies post-Murthy can ensure that their pressure tactics avoid judicial scrutiny.²¹⁶

Despite these legitimate concerns, there may be a role for public, but not private, jawboning to serve as a countervailing force against the power of the tech giants. Helen Norton’s “transparency principle”—namely, “an insistence that the governmental source of a message be transparent to the public”—could serve as a guide.²¹⁷ As Norton observes, the “government’s speech is most valuable and least dangerous to the public when its governmental source is apparent: only then is the government’s speech open to the public’s meaningful credibility and accountability checks.”²¹⁸ In an August 2024 letter to Congress, Mark Zuckerberg was unequivocal that Meta would no longer compromise its content standards in response to government pressure.²¹⁹ Indeed, Meta later announced the adoption of a new content moderation protocol that, among other things, removed restrictions on topics such as immigration and gender identity. If other platforms follow Meta’s lead, the protection (or not) of listener interests would be even more subject to the platforms’ decisions. Provided that the government’s use of public jawboning does not violate Vullo’s standards for coercion, it may prove to be a useful measure to protect users from the overwhelming power of the platforms.

F. Civil Society and the State

Civil society can also play a countervailing role. Truth-finding institutions, such as journalists and political activists, can combat false statements in an iterative process akin to the scientific method.²²⁰ Collaborations between platforms and outside researchers could also lead to better responses for online misinformation.²²¹ More generally, the concept of “knowledge institutions,” as developed by Vicki Jackson, captures the indispensable contribution of public and private entities, including universities, government agencies, libraries, and the press, to the collection and dissemination of knowledge needed for democratic self-governance.²²²

The state can bolster the speech environment by supporting knowledge institutions. Over the last several decades, the federal government has fostered the public sphere by enacting legislation to support newspapers, establishing a system of broadcast licenses, regulating cable, and implementing antitrust laws.²²³ With respect to the threats currently facing private news organizations, Martha Minow argues that “[n]othing in the Constitution forecloses government action to regulate concentrated economic power . . . or strengthen public and private investments in the news functions presupposed by democratic governance.”²²⁴ Minow further suggests that the “First Amendment’s presumption of an existing press may even support an affirmative obligation on the government to undertake reforms and regulations to ensure the viability of a news ecosystem.”²²⁵ Emily Bazelon proposes that federal and state governments could create publicly funded TV or radio, in addition to funding nonprofit journalism.²²⁶ To be sure, the independence of news organizations must be protected by

various mechanisms so that the government cannot control the media it funds and supports.²²⁷

Finally, community participation in regulating online platforms may also improve the speech environment. For example, Reddit is internally governed by volunteer moderators, who establish and enforce rules about what conduct is permitted or prohibited in each subcommunity.²²⁸ These moderators often put in “dozens of hours a week to ensure that content meets community standards and that participants understand why their content was permitted or banned.”²²⁹ Although Reddit is by no means perfect, it may be an example of what Aziz Huq has described as an “island of algorithmic integrity”; that is, a model of a well-functioning social media platform that acts in public-regarding ways and may thereby shift norms and expectations.²³⁰

Conclusion

This Article has offered a normative account of a well-functioning speech environment for speakers and listeners, under which individuals engage in three self-governing activities—informed voting; discussion and deliberation; and meaningful participation—while having their liberty, equality, epistemic, and nondomination interests satisfied. It also argued for digital exceptionalism—the idea that the expressive realm on social media platforms suffers from certain unique deficits that not only undermine the speech environment but that also pose challenges for regulation. The Article then turned to the law of public discourse, focusing on campaign finance regulation and the Moody decision, to find that First Amendment jurisprudence provides few conceptual resources to protect listeners’ equality, epistemic, and nondomination interests. Finally, the Article argued for countervailance, which is the idea that certain mechanisms could lessen the deficits of the online realm such that listener interests are better protected.

To be sure, there continues to be great uncertainty about how digital technologies will evolve over time and what new difficulties they will pose. The rapidly changing landscape of social media technology poses genuine challenges for regulation. While the Moody majority insisted that free speech principles do not change despite the challenges of applying them to evolving technology, the concurring Justices expressed reservations about how evolving algorithmic and AI technology would be covered by the First Amendment. For example, Justice Barrett queried whether there was a difference between an algorithm that did the curation on its own versus an algorithm that was directed by humans.²³¹ Justice Alito noted that the vast majority of the content moderation on the platforms is performed by algorithms, and now that AI algorithms are being used, the platforms may not even know why a particular content moderation decision was reached.²³² He asked: “Are such decisions equally expressive as the decisions made by humans? Should we at least think about this?”²³³ It is fair to say that much work remains to be done when considering how best to protect and promote a well-functioning political speech environment.

98 S. Cal. L. Rev. 1193

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Yasmin Dawood*

* Professor of Law and Political Science, and Canada Research Chair in Democracy, Constitutionalism, and Electoral Law, Faculty of Law, University of Toronto; J.D. Columbia Law School, Ph.D. (Political Science) University of Chicago. I am very grateful to Ashutosh Bhagwat, Daniel Browning, James Grimmelmann, Aziz Huq, Michael Kang, Heidi Kitrosser, Erin Miller, Helen Norton, Eugene Volokh, Abby Wood, and the participants at the Listener Interests Symposium at USC Gould School of Law and the Public Law Colloquium at Northwestern Pritzker School of Law for very helpful comments and conversations. Special thanks to David Niddam-Dent for excellent research assistance and to the editors of the Southern California Law Review for their valuable editorial work.

Listeners’ Choices Online

September 2025September 2025James Grimmelmann*

The most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal regulatory regime is the one that gives listeners the most effective control over the speech that they receive.

In particular, we should distinguish four functions that intermediaries can play: (1) broadcast, such as radio and television, transmits speech from one speaker to a large and undifferentiated group of listeners, who receive the speech automatically; (2) delivery, such as telephone, email, and broadband Internet, transmits speech from a single speaker to a single listener of the speaker’s choosing; (3) hosting, such as YouTube and Medium, allows an individual speaker to make their speech available to any listeners who seek it out; and (4) selection, such as search engines and feed recommendation algorithms, gives listeners suggestions about speech they might want to receive. Broadcast is relevant mostly as a (poor) historical analogue, but delivery, hosting, and selection are all fundamental on the Internet.

On the one hand, delivery and hosting intermediaries can sometimes be subject to access rules designed to give speakers the ability to use their platforms to reach listeners because doing so gives listeners more choices among speech. On the other hand, access rules are somewhere between counterproductive and nonsensical when applied to selection intermediaries because listeners rely on them precisely to make distinctions among competing speakers. Because speakers can use delivery media to target unwilling listeners, they can be subject to filtering rules designed to allow listeners to avoid unwanted speech. Hosting media, however, mostly do not face the same problem, because listeners are already able to decide which content to request. Selection media, for their part, are what enable listeners to make these filtering decisions about speech for themselves.

Introduction

This is an essay about listeners, the Internet, and the First Amendment. In it, I will argue that the most useful way to think about online speech intermediaries is structurally: a platform’s First Amendment treatment should depend on the patterns of speaker-listener connections that it enables. For any given type of platform, the ideal First Amendment regime is the one that gives listeners the most effective control over the speech that they receive.

This essay does not stand alone. In a previous article, Listeners’ Choices, I outlined a two-part theory of the First Amendment based on recognizing listeners’ choices about what speech to hear.¹ First, any free-speech principle that does not take listeners’ choices seriously is self-defeating. In a world where speakers pervasively compete for listeners’ attention—which is to say, in our world—listeners’ choices provide the only normatively appealing way to resolve the inevitable conflicts among speakers. Second, existing First Amendment doctrine regularly defers to listeners’ choices. Many cases that are seemingly about speakers’ rights snap into focus as soon as we pay attention to which listeners are willing and which listeners are not. Listeners’ choices among speakers are typically content- and viewpoint-based, but a legal rule that defers to those choices can be content-neutral.

The theory I presented in Listeners’ Choices was skeletal. Here, my purpose is to flesh out the listeners’-choice principle so that it does useful doctrinal and policy work in our modern media environment. I will analyze the role of listeners’ choices in four structurally different functions that media intermediaries can carry out:

Intermediaries carrying out a broadcast function, such as radio and television, connect one speaker to a large and undifferentiated group of listeners who receive the speech automatically;
Intermediaries carrying out a delivery function, such as telephone, email, and broadband Internet, transmit speech from a single speaker to a single listener of the speaker’s choosing;
Intermediaries carrying out a hosting function, such as YouTube and Medium, allow an individual speaker to make their speech available to any listeners who seek it out; and
Intermediaries carrying out a selection function, including search engines and feed recommendation algorithms, give listeners suggestions about speech they might want to receive.

Notice that I refer to distinct “functions,” because media and intermediaries are not monolithic. There is no set of First Amendment rules for “the Internet,” nor can there be. The Internet is too vast and variegated for that to work. Distinguishing among broadcast, delivery, hosting, and selection helps us see that these functions can be disaggregated. On the Internet, we are accustomed to thinking of hosting and selection as intertwined; the term “content moderation” encompasses them both. But they do not necessarily need to be: YouTube the hosting platform and YouTube the search engine are different and could be subjected to different legal rules.

The original sin of broadcast was that it inextricably combined selection and delivery into a single take-it-or-leave-it package, in a way that was uniquely disempowering to listeners. Bandwidth limitations mean that broadcast media present listeners with a limited array of speakers to choose among. And the fact that listeners receive broadcast speech as a group, rather than individually, means that it is hard to protect unwilling listeners from that speech without blocking willing listeners’ ability to receive it. The result is a body of doctrine and theory that purports to act in listeners’ interest but is primarily concerned with allocating scarce bandwidth among competing speakers.

In contrast, listeners can be far more empowered on the Internet than they were offline. Delivery, hosting, and selection are all more listener-friendly than broadcast. The individually targeted nature of delivery media means that media intermediaries can block unwanted communications to unwilling listeners without offending core free-speech values. The pinched kinds of choices that broadcast media needed to make among competing speakers were a poor proxy for the much broader kinds of choices that listeners can make for themselves on hosting media. And the recommendations that selection media provide to help listeners choose among competing speakers are fundamentally oriented towards facilitating listeners’ autonomy, not speakers’.

Turning to the specifics of how these different kinds of media should be regulated, there are two structurally different kinds of legal rules that can apply to them:

Access rules ensure that speakers are able to use a medium, even when an intermediary would prefer to exclude them.²
Filtering rules ensure that listeners are able to avoid unwanted speech, even when speakers would prefer to subject them to it. Sometimes they empower an intermediary to reject that speech on behalf of listeners (i.e., they are the opposite of access rules), but sometimes they require speakers and intermediaries to structure their communications in a way that enables listeners themselves to reject the speech.

From a speaker’s point of view, access rules look like they promote free speech and filtering rules look like they inhibit it. But from a listener’s point of view, both types of rules can promote the values of the First Amendment.

For access rules, the key distinction is between rival and non-rival media. Delivery and hosting can be non-rival on the Internet, where bandwidth is immense and can be expanded as needed. Speakers who use delivery and hosting media mostly do not interfere with each other, and so an intermediary can treat most speakers identically. But selection is fundamentally rival: listeners rely on these intermediaries to help them distinguish among speakers, and so selection intermediaries must favor some speakers and disfavor others. As a result, delivery and hosting intermediaries can often be subjected to access rules requiring even-handed treatment of all interested speakers, but the First Amendment mostly forbids imposing access rules on selection intermediaries.

For filtering rules, the key distinction is that delivery situates the relevant choices among speaker-listener pairings upstream (closer to speakers) while hosting situates those choices downstream (closer to listeners). When listeners can make their own choices among speech (as on hosting intermediaries), filtering rules—whether imposed by intermediaries or by the legal system—have the effect of thwarting those choices. However, when speakers make those choices in the first instance (as on delivery intermediaries), sometimes filtering rules are necessary to empower listeners to make choices for themselves. Selection media, for their part, provide listeners the information they need to choose which content on hosting media to request, and which content on delivery media to receive.

In part, this essay is a love letter to selection media, written on behalf of listeners. Selection media play an utterly necessary role in an environment of extreme informational abundance, and they can be more responsive to listeners’ informational choices and needs than any other form of media.³ Access rules are often nonsensical when applied to them, and filtering rules must be applied with care, lest they trample on the filtering work that selection media are already doing.⁴

But the fact that selection media are often listener-friendly does not mean that they always are. I have argued previously that search engines can be regulated when they behave disloyally or dishonestly towards their users,⁵ and the same goes for selection media. More generally, I will argue here that structural regulation of selection media is often appropriate. For example, an intermediary could be forced to disaggregate its hosting and selection functions; the former can—and sometimes should—be regulated in ways that the latter cannot. Indeed, an intermediary might need to open its delivery or delivery platform up to competing selection intermediaries (so-called “middleware”) to give listeners broader and freer choice over the speech they receive.

Finally, a note on scope. This is an essay about intermediaries, not an essay about all forms of media. I am focusing on intermediaries’ roles in carrying third-party speech from speakers to listeners, not on their own first-party speech that they want to share with listeners. Different structural and First Amendment considerations apply to first-party speech. I will argue in places that solicitude for intermediaries’ speech interests should not prevent us from regulating them in ways that promote listeners’ speech interests. But this is not primarily an essay about intermediaries’ speech itself.⁶

This essay has four substantive Parts. Part I provides a short review of the argument from Listeners’ Choices and can be skipped if you are familiar with it. Part II describes the structural differences among broadcast, delivery, hosting, and selection media, and explains how they relate to each other. Part III considers how access rules play out in these four types of media, and Part IV does the same for filtering rules. As we will see, the appropriate legal treatment of these different kinds of intermediaries and rules falls out naturally. First Amendment doctrine becomes radically simpler when we carve up media at their joints.

I. Listeners’ Choices: A Review

The starting point of Listeners’ Choices is that we can think about speech as a matching problem: in an environment where billions of people speak and billions of people listen, who speaks to whom? This way of thinking about speech is mostly content-neutral: it focuses on the network structure of connections between speakers and listeners, rather than on the content of the speech they exchange over those connections. I called an actual arrangement of speakers and listeners a “matching” to emphasize its mutuality and the fact that it is a collective property of speakers and listeners overall.

The possible structures of speaker-listener matching are shaped by two things: choices and scarcities. Regarding the former, speakers make choices about what to say and how; regarding the latter, listeners make choices about what to listen to and how. Not all their choices can be simultaneously honored, but the heart of this way of thinking about free speech is that speakers and listeners make choices among each other, and that these choices are in large part constitutive of the values that free expression serves. They are subjective, individual, and profoundly content- and viewpoint-based. Some conflicts among speakers’ and listeners’ choices arise simply from their diverging values and goals; I called these conflicts “internal” limits on possible speaker-listener matchings.

As for scarcities, another class of limits on speaker-listener matchings are what I called “structural” limits: some combinations of who speaks to whom are physically or practically impossible. In particular, three types of scarcity shape the patterns of speech everywhere and always: bandwidth, attention, and ignorance. Bandwidth limits, such as the limited range of the human voice or the limited number of very high frequency (“VHF”) television channels, restrict the ability of speakers’ messages even to reach listeners. Attention limits are hard-wired into human anatomy and psychology. Although speech consists of information, which is potentially infinitely replicable, each person can only pay attention to one or a few speakers at a time. Finally, ignorance about the content of speech can lead people to make choices about what to listen to—choices that would not have made if they were fully aware of what the speech would be.

The upshot of having these scarcities is that listeners’ choices among competing speakers provide a compelling way to decide among competing speech claims. Listeners’ choices are valuable in themselves because listening is an indispensable part of any communication, and listeners’ choices should be elevated over speakers’ choices because of the scarcity of attention; the capacity to listen is limited in a way that the capacity to speak is not. In order to tune into a preferred speaker, a listener must be able to tune out other speakers, and a speech environment in which listeners cannot do so is one in which effective speech is impossible. From this general point, a few specific observations follow.

First, in one-to-many cases of conflicts between willing and unwilling listeners, willing listeners generally prevail. The “Fuck the Draft” jacket in Cohen v. California⁷ and the drive-in movie screen in Erznoznik v. Jacksonville⁸ were seen by both willing and unwilling viewers. To censor these forms of expression at the insistence of the unwilling ones would deprive the willing ones of speech they were willing (and in Erznoznik, affirmatively choosing) to see. The unwilling ones are expected to avert their eyes or change the channel. This looks like a preference for speakers’ right of expression as against unwilling listeners, but really it is a preference for willing listeners over unwilling ones.

Second, in true one-to-one cases where a speaker addresses a single unwilling listener, the analysis is far less speaker-friendly. The Supreme Court has affirmed homeowners’ rights to literally and figuratively shut their doors to unwanted solicitors⁹ and mail.¹⁰ A general ordinance prohibiting Jehovah’s Witnesses from going door-to-door¹¹ or prohibiting the mailing of communist literature would be unconstitutional,¹² because of the presence of potentially willing listeners among the audience. That concern drops away when the speaker can stop attempting to communicate with individual listeners who specifically object while still reaching those who do not. Listeners can choose not to pay attention, and speakers who attempt to overcome listeners’ defenses (for example, with amplified sound trucks) can be barred from doing so.¹³ The caselaw here is rich and context-sensitive; a rule that listeners always win would be as wrong as a rule that speakers always win. Instead, the cases grapple with the interests of speakers, willing listeners, unwilling listeners, and—importantly—undecided listeners, who cannot decide whether they want to hear what the speaker has to say unless the speaker at least has an initial chance to ask.¹⁴

Third, the general problem of sorting listeners into the willing and the unwilling involves what I call “separation costs”: the effort that willing listeners must take to hear, or that unwilling listeners must take to avoid hearing, or that speakers must take to distinguish between the two, or some combination of the above. The scale and distribution of separation costs can vary greatly based on the technological environment. I argue that the legal system, in a very rough way, seeks out the least-cost-avoider of speech conflicts: when a party can take a simple and inexpensive action to resolve the conflict, the law often expects them to do so.

II. Four Media Functions

This Part reviews the structural differences among the four media functions: broadcast, delivery, hosting, and selection. Along with some examples of each type, I discuss the ways in which each of them is one-to-one or one-to-many.¹⁵ I defer discussion of scarcity and bandwidth constraints to the next Part, as these issues bear heavily on access rules.

A. Broadcast

Start with the wired and wireless mass media that dominated most of the twentieth century: radio, broadcast television, satellite television, and cable. These mass media are characterized by their extensive reach: they enabled a single speaker to reach a large potential audience of listeners. They are, in Eugene Volokh’s taxonomy, one-to-many media.

To be clear, broadcast media collectively enable numerous speakers to reach large audiences; there are many TV stations, and each station broadcasts many different programs. Instead, when I say that broadcast is one-to-many, I mean that each individual speaker reaches a large and undifferentiated audience. Broadcast aggregates numerous such one-to-many communications, dividing them up by time (for example, WNBC-TV broadcasts the news at 7:00 and Access Hollywood at 7:30) and by intermediary (WNBC-TV and WABC-TV both broadcast their respective news programs at 7:00). The structural point is that WNBC-TV can only broadcast a single program at a time—such as Access Hollywood at 7:30—and when it does, it enables a one-to-many communication from Access Hollywood to its viewers.

B. Delivery

Next, consider delivery media like mail, telegraph, telephone, email, direct messaging, and Internet service. They all transmit speech from an individual speaker to an individual listener selected by the speaker, making them one-to-one media.¹⁶ More precisely, they are one-to-one with respect to individual communications from speaker to listener. In aggregate, they are many-to-many. The postal service delivers millions of letters, but each letter goes from a single sender to a single recipient. Delivery is therefore a kind of disaggregated broadcast: instead of sending joint communication to all listeners at once, individual communications are sent to individual listeners at the speaker’s request.

Most delivery media use some form of medium-specific addresses for a sender to specify their chosen recipient. A letter goes to a specific postal address; a telephone call to a specific telephone number; an email to a specific email address; an Internet Protocol (“IP”) datagram to a specific IP address; and so on. A speaker can choose to send the same message to many listeners by sending many individual communications to different addresses. Conversely, by having an address, a listener makes themselves reachable by speakers and then can receive a mostly undifferentiated stream of communications from any speaker who wants to reach them.

Some delivery media—such as telephone and direct messaging—are interactive, but it still makes sense to talk of “the speaker” and “the listener.” First, at the beginning of a conversation, one user is trying to establish a connection with another: the phone rings, or an email appears in the inbox. The user trying to establish the connection is the one who chose to initiate the communication, chose when to do it, and most importantly, chose with whom to establish it. They are a speaker, and if the other user agrees, they receive the message and become a listener. Second, what we think of as “interactive” media are really bidirectional media. A telephone connection is “full duplex”: it requires two speech channels, one in each direction. The same is true for a Zoom call, an email conversation, or anything else that travels on the Internet. These interactive exchanges are made up of individual IP datagrams, each traveling from a sender to a recipient identified by IP address. Third, all delivery media are interactive on a long-enough time scale. Pen pals exchange letters, trading off the roles of speaker and listener. Each letter is still a discrete one-to-one communication carried by the postal service; mail is still a delivery medium.

C. Hosting

A third category of Internet media consists of hosting platforms. Third-party speakers send content to these intermediaries, which make the content available to listeners on request. For example, an artist uploads illustrations from her portfolio of work to a Squarespace site and individual fans visit the site to view the illustrations.

Other examples of hosting intermediaries include (1) bulk storage like Google Drive and Amazon S3; (2) content-delivery networks (“CDNs”) like Akamai and Cloudflare; (3) hosting functions of social-media platforms like YouTube and X; and (4) web-based self-publishing features of platforms like Medium and Substack. Structurally, online marketplaces are also hosting services as long as they (a) sell digital content instead of physical goods or services, and (b) feature speaker-submitted third-party content. Examples include App Stores by Apple and Google, e-book stores by Barnes & Noble and Amazon, video game stores by Steam and Epic, and even Spotify as a distributor of podcasts and music.

Hosting is the mirror image of delivery. Both are one-to-one media; each individual communication goes from a single speaker to a single listener. The difference is that in delivery media, the speaker selects which listeners to speak to; in hosting media, the listener selects which speakers to listen to. Although hosting is usually thought of as a service offered by platforms to speakers, the listener’s request plays a crucial role in the process. Hosting is also a kind of disaggregated broadcast: instead of sending a joint communication to all listeners at once, individual communications are sent to individual listeners, this time at the listener’s request.

Hosting and delivery functions are often used in conjunction. A website host, for example, responds to a user’s request for a particular URL by sending a response with the contents of the page at that address. The request and the response are both made using delivery media—the Internet service providers (“ISPs”) along the delivery path between the host and the user. (So, for that matter, is the transmission from speaker to the website host with the content the speaker wants to make available, and so is the website host’s acknowledgement that it has received the content.) But the host’s own activities—its responses to listeners’ requests for content—have the listener-selected nature of hosting, not the speaker-selected nature of delivery.

Some intermediaries offer both hosting and delivery. Substack is a good example: each post is both made available on Substack’s website and also mailed out to newsletter subscribers. Substack is a hosting service for listeners who read the post on the website, but it is a delivery service for listeners who read the post in their email inbox. Sometimes the distinction is irrelevant, but sometimes it matters. Substack allows newsletter authors to import a mailing list of subscribers, so it is not safe to assume that everyone who receives a Substack delivery has consented to it. For a user who objects to newsletter spam, Substack is a delivery intermediary, not a hosting intermediary.

Like delivery, hosting can be aggregated into a one-to-many medium. Indeed, this is typically the default on the Internet. Unless a host affirmatively restricts which listeners have access to a speaker’s content—for example, with a list of subscribers to a paywalled publication—anyone with an Internet connection can access it, and it is far easier to leave access unrestricted than to impose selective restrictions. Thus, from a speaker’s perspective, hosting can function like broadcast in that it allows a speaker to reach an indeterminately large audience with a single act of publication.

D. Selection

Finally, consider the selection function of some media, which consists of recommending some content for users. Selection media include general search engines that index third-party sites, such as Google, Bing, Kagi, and DuckDuckGo, as well as site-specific search engines that index the content on a specific platform such as the search bars built into YouTube, TikTok, and X. They also include recommendation engines that may provide personalized results not explicitly tied to a user query, such as the feed algorithms on Facebook and TikTok or the watch-next suggestions on YouTube. The key feature of a selection platform is that it tells users about content, which they can then consume in full if they want.

Selection media are not strictly one-to-one or one-to-many in the same way that broadcast, delivery, and hosting are; they do not by themselves carry content from speakers to listeners. Instead, it is helpful to think of selection media as being many-to-one because they help individual listeners choose speech from a large variety of speakers. They turn an overwhelming volume of available content into a much smaller number of selections or recommendations that a listener can meaningfully experience, and they do so in ways that can be individuated for each specific listener.

Selection media are hardly new, but two features of the Internet make selection media particularly important online. First, the sheer scale of the Internet makes selection an absolute necessity. There is far more content on the Internet, or even on social-media platforms and not-especially large websites, than any one user can plausibly engage with. The shift from bandwidth to attention as the most salient bottleneck makes selection a crucial site of contestation.

Second, the Internet has often enabled selection to be disaggregated from delivery and hosting. The selection function of a television channel is obvious: because it can transmit so little compared with what it might, the choice of what to transmit does most of the work of selection. However, YouTube is both a content host and a content recommender: it can host a video without ever recommending that video to anyone. It is the difference between an album (selection bundled with hosting) and a playlist (selection by itself). This point cuts both ways—distinguishing the two functions takes some First Amendment pressure off of hosting, but piles more onto selection.

III. Access

A. Scarcity

One of the fundamental structural constraints on choices about speech is scarcity: limits on the number of communications that a given medium, or an intermediary using that medium, can carry. Scarcity forces choices among speakers to be made upstream by the intermediary or by regulators allocating the medium among speakers and intermediaries. In contrast, non-scarce media allow choices among speakers to be made downstream by listeners themselves. Unsurprisingly, there is a long history of scarcity arguments in telecommunications policy.

The standard story, as reflected in caselaw, points to the scarcity of broadcast spectrum as a justification for regulation. First, the available spectrum needs to be allocated to different users to prevent chaos and interference. Then, once it has been handed out, these users can be required to carry a reasonable diversity of speakers so that the intermediaries do not have undue power over speech. The usual citation for this form of argument is Red Lion Broadcasting Co. v. FCC, which used scarcity arguments to uphold the FCC’s fairness doctrine.¹⁷

In contrast, other media are not thought of as scarce in the same way. There is room for many simultaneous speakers, which means there is no need for regulatory intervention. Intermediaries themselves can choose which speakers to carry, and there is less risk of having a handful of powerful intermediaries entirely control the speech environment. The usual citation for this form of argument is Miami Herald Publishing Co. v. Tornillo, which declined to extend Red Lion to newspapers.¹⁸ Instead, the Supreme Court upheld newspapers’ First Amendment right to pick and choose what content they print.

Thus, goes the story, there is a spectrum from scarce media, like broadcast, to non-scarce media, like newspapers. The scarcer the medium, the more regulable it is. Other media fall somewhere in between. Cable television, for example, can carry a limited number of channels, but typically more than broadcast can. Thus, the scarcity rationale for regulating cable exists, but is weaker than for regulating broadcast. This tracks with the regulatory regime: cable operators are required to set aside some of their channels for local broadcasters and public-access channels, but cable channels are not regulated for content. It also tracks with judicial treatment: the Supreme Court held 5-4 that this regulatory regime was constitutional in Turner Broadcasting System, Inc. v. FCC, almost exactly halfway in between the 9-0 decisions in Red Lion and Miami Herald.¹⁹

There are two problems with this story. The first is that it does not obviously explain why there are some media—such as telephone—that are even more regulated than broadcast. The telephone network has much higher capacity than broadcast does (it can carry millions of simultaneous conversations), but it is subject to a strict common-carriage regime. A naive scarcity argument would suggest the exact opposite: that because telephone capacity is effectively unlimited, there is no need for regulation.

The second problem is that even in cases that rely on scarcity arguments, those arguments do not always cut in the direction one would expect. In Miami Herald, it was the newspaper arguing that its editorial space was scarce—in the Supreme Court’s words, that it could not engage in “infinite expansion of its column space.”²⁰ The Supreme Court accepted this argument as a rationale to uphold the newspaper’s First Amendment right to reject unwanted content—the exact opposite of what a naive scarcity argument would suggest.

The way out of these paradoxes is to recognize that there are two dimensions to scarcity. On one hand, there is what I call bandwidth scarcity: the limits on any one intermediary’s ability to carry the speech of multiple speakers. On the other hand, there is what I call entry scarcity: the limits on the number of intermediaries who can operate simultaneously. Entry scarcity cuts in favor of regulation: an intermediary is in a position to control who gets to speak, unconstrained by market forces and the threat of competition. But bandwidth scarcity cuts against regulation: it means that the intermediary necessarily exercises editorial judgment over which speakers have access, and it rules out simple common-carriage regimes that treat all

speakers equally. It is the interplay between these two distinct forms of scarcity that determines whether a medium is regulable.

In particular, mapping the two dimensions of scarcity in a two-by-two diagram reveals the underlying pattern of scarcity arguments:

In the top-right quadrant are print media, which are moderately bandwidth-scarce (it is possible to add pages to a newspaper or book, but at some expense and only by modifying its physical layout) and mostly not entry-scarce (physical printing is a commodity business). Thus, both scarcity considerations cut against regulation: there is no physical or economic need to allocate a limited ability to print among competing speakers, and imposing access rules comes at a real cost to a publisher’s ability to print the content it wants. Indeed, as Miami Herald illustrates, the Supreme Court’s solicitude for intermediaries’ speech is at its zenith here.
In the bottom-left quadrant are the classic common carriers. They are entry-scarce (the costs of running a second telephone network to every home were prohibitive), but they are not particularly bandwidth-scarce (carrying one more conversation or letter is a trivial burden for the phone network or the mails). Indeed, these are typically the most regulated communications intermediaries.
In the top-left quadrant are broadcast media. They are both entry-scarce (only thirteen VHF channels were allocated, and the practical number that could operate in any given area was invariably smaller) and bandwidth-scarce (each VHF television channel had 6 megahertz to carry a 525-line video signal at 30 frames per second). They are off-axis: their entry scarcity cuts in favor of regulation, but their bandwidth scarcity cuts against it. This is why they have historically been required to carry some diversity of content, but never with full common-carriage rules. They are more regulable than print, but less regulable than common-carriage networks.
In the bottom-right quadrant are media that are neither entry-scarce nor bandwidth-scarce. This is also an off-axis combination, but it is the opposite of the situation with broadcast, where access rules were both necessary (to give disfavored speakers access) and costly (because doing so comes at the cost of other speech the broadcasters could have carried). Here, access rules do not have a speech cost: giving additional speakers the ability to use an intermediary does not require the intermediary to drop other speakers to make room. However, it is also not clear whether these rules are necessary in the first place, because ordinary market forces would likely suffice to provide all speakers with the ability to speak.

As we will see, this two-dimensional framing of scarcity is quite helpful in situating the speech claims for and against access to the four types of intermediaries discussed in this essay: broadcast, delivery, hosting, and selection. Entry scarcity provides the justification for access rules to ensure listeners the widest possible range of choices among speakers without artificial limits imposed by incumbent intermediaries. However, bandwidth scarcity, when it exists, bespeaks caution: access rules come at their own sharp cost, limiting intermediaries’ ability to select the speech they think their listeners will most appreciate the ability to choose among. Thus, as we will see, hosting and delivery media (which are not bandwidth-scarce) may appropriately be the subject of common-carriage regulation where there are real issues of entry scarcity. However, selection media (which are intrinsically bandwidth-scarce) mostly should not be the subject of regulation regardless of entry scarcity.

I should note that there are competing definitions of “scarcity,” and my intention is to be agnostic among them. At different times and places, scarcity has been used to describe physical constraints (such as the laws of physics that govern electromagnetic interference), economic constraints (such as the cost of building out the infrastructure to run a telephone network), and regulatory constraints (such as limits on the number of cable franchises that will be awarded in a geographic area). Some commentators use scarcity narrowly to include only physical constraints; others use it broadly to include economic and regulatory constraints. These varying uses often reflect different beliefs about what kinds of regulations are appropriate for scarce media.²¹ My argument here is modular with respect to the definition of scarcity in use. If you, according to your preferred definition, believe that a medium is entry-scarce but not bandwidth-scarce, I hope you will agree with my arguments for why common carriage might be an appropriate regulatory regime.

With these observations about scarcity in mind, we can turn to how access rules play out for different types of media. The focus throughout will be on how different rules increase or limit the choices available to listeners.

B. Broadcast

Twentieth-century broadcast media had highly limited capacity and were both bandwidth- and entry-scarce. These limits were primarily physical and technological and secondarily economic and regulatory. The available techniques for modulating an audio or audiovisual signal into one that could be transmitted through the atmosphere (radio, television, and satellite) or through wires (cable) allowed only a small number of such signals to be transmitted simultaneously in any geographic region. This number expanded over time with developments in telecommunications engineering: from AM to FM radio broadcasting; from VHF (very high frequency) to UHF (ultra high frequency) television broadcasting; from coaxial to fiber-optic cables; and so on. The basic structure remained the same: a fixed, finite menu of channels transmitted simultaneously to all potential listeners.

In such a setting, speaker-listener matching arises from a two-stage process. First, a few speakers are chosen to have access to the available channels, and then each listener chooses from the speech that speakers make available on those channels. In the United States, the first-stage choice among speakers was (and is) made by the operator of the physical infrastructure—the transmitting equipment or physical cable network—subject to some regulatory limits. The second-stage choice was (and is) made by individuals: members of the public with appropriate receiving apparatus (restricted in some cases, such as cable and satellite, who have subscribed to the operator’s service). The phrase most commonly used to describe this second-stage choice—changing the “channel”—reflects the way in which the technological constraints of twentieth-century broadcast funneled speech into a small and finite number of options.

Consider a speaker who is denied access to a channel, or who receives less access than they want, or who is limited in how they are allowed to use it, or who is charged more than they want for their access. In each case, they are obviously aggrieved. It is harder, however, from a purely speaker-centric position to explain why they have been wronged. The challenge—and this is a recurring challenge for speaker-centric analyses—is the problem of symmetry among speakers. It is one thing to say that the lucky speaker who receives access is better off than the unlucky speaker who does not, but it is quite another to make them change places. Doing so simply swaps the problem of the network operator picking winners and losers with the problem of the government picking winners and losers. To give A access and deny it to B amounts to preferring A’s speech to B’s, and on most theories of free speech, this preference is an awkward one for the government to engage in.

Instead, rationales for broadcast content regulation tend to rely on the needs of listeners, rather than speakers. As many scholars have noted,²² this is the upshot of Alexander Meiklejohn’s famous phrase, “What is essential is not that everyone shall speak, but that everything worth saying shall be said.”²³ The basic idea of this regulatory paradigm is to give listeners either high-quality content, a wide range of options of content, or both—on the assumption that speakers and broadcasters, left to their own devices, will provide neither. As the Supreme Court put it in Red Lion’s famous phrasing, “It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount.”²⁴

Ringing rhetoric aside, it is hard to find actual listeners in the resulting regulatory regime. In an environment of severe bandwidth constraints, it is impossible to solicit and honor all individual listeners’ choices; there are never enough channels to give each member of the audience what they personally want. Instead, they make their desires known only collectively and statistically by tuning in to channels and by paying for those channels or for the things advertised on them. Thus, as the long-running theme in media criticism goes, broadcast was a “vast wasteland” of boring, mediocre, and fundamentally majoritarian content.²⁵ The larger the mass audience, the lower the common denominator.²⁶

Consider some of the most notable examples of broadcast access regulations: the Mayflower doctrine²⁷ and its successor the fairness doctrine,²⁸ the right of reply,²⁹ and the equal-time rule.³⁰ None of these were concerned with any specific listeners’ choices among speakers. Instead, they were all attempts to provide for listeners’ interests generically—by anticipating what groups of hypothetical listeners might want or need.

The few occasions on which broadcast media regulations have attempted to take account of actual listeners’ choices when setting access rules only show how hard it is to do so. The most striking example is format regulation. For years, the FCC interpreted the Communications Act of 1934’s requirement that broadcast licensees serve the “public convenience, interest, or necessity” to mean that it should consider stations’ formats in its licensing procedures.³¹ It would deny approval for new pop-music radio licenses, for example, if it felt that an existing market was adequately served by the radio stations already licensed to operate in the area.³² Indeed, a licensee seeking permission to change formats was required to petition the FCC for approval.³³

Format regulation was in theory a listener-based system, but the FCC seemed genuinely flummoxed when actual listeners showed up in licensing procedures demanding a voice in the first-stage choices of who got access to the airwaves and on what terms. In Office of Communication of United Church of Christ v. FCC, a group of civil-rights activists attempted to intervene in a license-renewal proceeding before the FCC, alleging that WLBT in Jackson, Mississippi had aired only pro-segregation viewpoints.³⁴ The FCC denied their request, arguing that these “representatives of the listening public”³⁵ could “assert no greater interest or claim of injury than members of the general public.”³⁶ The D.C. Circuit reversed and remanded for an evidentiary hearing, as listeners were “most directly concerned with and intimately affected by the performance of a licensee.”³⁷

There followed a string of cases in which the FCC and the D.C. Circuit struggled with how to actually take listeners’ views into account.³⁸ In Citizens Committee to Keep Progressive Rock v. FCC, for example, WGLN in Sylvania, Ohio, switched to an all-prog-rock format in late 1971, and then received FCC approval in 1972 to switch to “generally middle of the road music which may include some contemporary, folk and jazz.”³⁹ The Citizens Committee to Keep Progressive Rock petitioned the FCC to object. The D.C. Circuit ordered a hearing on whether the Toledo metropolitan area was adequately served by prog-rock stations as compared with top-forty stations,⁴⁰ and discussed such details as whether a “golden oldies” format was sufficiently distinct from “middle of the road.”⁴¹ “In essence, one man’s Bread is the next man’s Bach, Bacharach, or Buck Owens and the Buckeroos, and where ‘technically and economically feasible,’ it is in the public’s best interest to have all segments represented,” the opinion sagely intoned.⁴²

My point here is not that the FCC’s enterprise of supervising formats or of requiring balanced public-interest programming in the name of listener interests was ill-considered. Instead, I want to emphasize that these interventions were more about listeners’ interests than about listeners’ choices. Some of them were about giving listeners information that it is considered important for them to have, and some of them were about moderately diversifying the menu of speech from which listeners could choose. But in an environment of severely limited bandwidth serving mass audiences, there was almost nothing more that could be done.

I make this point here because there are two misconceptions about listeners that are extraordinarily prevalent in the literature on access to the media. Both of them are direct consequences of inappropriately extending reasonable assumptions about the broadcast environment to other domains where they are much worse fits.

The first mistaken assumption is that speakers seeking access to media are necessarily good proxies for listeners. In 1967, Jerome Barron wrote, “It is to be hoped that an awareness of the listener’s interest in broadcasting will lead to an equivalent concern for the reader’s stake in the press, and that first amendment recognition will be given to a right of access for the protection of the reader, the listener, and the viewer.”⁴³ In broadcast media, a strong right of access for diverse speakers may be a way to promote listeners’ practical ability to choose speech.

In other media, which are not characterized by the same combination of broad distribution and narrow bandwidth, there is much less reason to think of speakers as proxies for listeners. To give a simple example, many of the speakers most loudly demanding—and sometimes suing for—a right of access to Internet platforms are unrepentant spammers.⁴⁴ The access they seek is the access of pre-FCC unlicensed broadcast, as in the right to overwhelm media and listeners with high-volume speech that drowns out alternatives and reduces listeners’ practical ability to choose among speakers.

The second misconception about listeners’ choices that arises from seeing all media as broadcast media is the belief that nothing else can be done. Both the justifications for and many of the criticisms of regulations like the fairness doctrine and format review arise from thinking about speech environments in which listeners are fundamentally passive. The only controls they have—or can have—are the channel dial and the on-off switch. It seems to follow that the only useful regulatory interventions must happen upstream and that individual listeners themselves can have little involvement in the matching process. The entire model of media criticism that conceptualizes individuals as television viewers—numb, motionless, and mindless zombies or couch potatoes tuned in to the idiot box—is blind to the ways in which they engage with media that give listeners more agency and more choices.⁴⁵ We will see many examples soon. For now, remember that the assumption of listener passivity is just that—an assumption.

C. Delivery

Delivery media are mostly not bandwidth-scarce, especially on the Internet. Any given delivery intermediary’s platform tends to face fewer capacity constraints than broadcast media did. Partly this is structural: delivery media solve a smaller problem because they only try to route a communication to one recipient, rather than many. Partly it is due to physical differences: the phone network could handle more simultaneous connections by running more wires in trunk lines, whereas cable could not increase the number of channels without reengineering every subscriber’s wiring and equipment. Partly it is due to the telecommunications engineering triumphs of the telephone system and the Internet, which have scaled up over many orders of magnitude in their lifetimes. And partly it is due to recognizing the limits of the possible: telegraph companies did not attempt to offer video service.

Whatever the reason, any given communication takes up a much smaller fraction of a delivery provider’s capacity than a corresponding communication would take up of a broadcaster’s capacity. Comcast as a cable operator can offer its subscribers a few hundred channels, while Comcast as an ISP can offer its subscribers delivery to and from millions of sites. The result is that Comcast’s Internet-service subscribers interfere with each other far less than the cable channels vying for transmission do. One more subscriber is trivial from Comcast’s perspective, and it has every economic incentive to sign up as many as it can. However, each cable carriage agreement is individually negotiated, and Comcast is ready to say “no” if the terms are not good enough because Comcast has to devote some of a sharply limited resource to each channel it offers.

Entry scarcity varies among delivery media. Some, such as email, are almost completely open to entrants: anyone can set up their own SMTP server and start exchanging emails. Others, such as telephone and Internet service, have limited competition among intermediaries who can serve any particular customer or region because the need to place physical infrastructure, such as fiber-optic cables or cell-phone towers, in particular locations creates economic and regulatory barriers to entry. The postal service is an extreme example: it has a statutory monopoly on the carriage of letters.⁴⁶

There is a long and robust tradition of speakers’ rights to access delivery media. Older delivery media, in particular, have frequently been subjected to common-carriage rules that require them to accept communications from all senders and for all receivers, and forbid them from discriminating on the basis of the contents of those messages.⁴⁷ The postal service “shall not . . . make any undue or unreasonable discrimination among users of the mails . . . .”⁴⁸ This statutory obligation is almost certainly a First Amendment rule.⁴⁹ Similarly, the Communications Act prohibits “any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services” by telecommunications common carriers including telephone companies.⁵⁰ This is the modern continuation of a long tradition: laws in the nineteenth century required telegraph companies to “operate their respective telegraph lines as to afford equal facilities to all, without discrimination in favor of or against any person, company, or corporation whatever.”⁵¹ Indeed, the postal service,⁵² telephone network,⁵³ and broadband Internet service⁵⁴ are all the subjects of universal-service policies that affirmatively attempt to provide access to all American residents.

On the other hand, it is an open doctrinal question whether government can require modern delivery providers—specifically email and broadband Internet—to provide uncensored access to speakers and listeners. The best and most prominent example is the FCC’s network neutrality rules that attempted to require broadband ISPs to carry traffic to and from all edge providers (that is, speakers) on a nondiscriminatory basis.⁵⁵ The D.C. Circuit upheld one version of the FCC’s network neutrality rules against a First Amendment challenge in 2016.⁵⁶ Dissenting from denial of rehearing en banc, Judge Kavanaugh argued that ISPs exercise editorial discretion protected by the First Amendment.⁵⁷ There are also dicta in the Moody v. NetChoice majority opinion describing First Amendment protections for social-media companies’ “choices about the views they will, and will not, convey” that would seem to apply equally well to ISPs.⁵⁸

Indeed, § 230 affirmatively shields Internet delivery media from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”⁵⁹ The precise contours of what constitutes “good faith” are unsettled,⁶⁰ as is the scope of the “otherwise objectionable” catchall,⁶¹ but the general result is to preempt any state attempts (by statute or common law) to impose access mandates.⁶²

It is also notable that many delivery media are governed by strict privacy rules that limit carriers’ ability even to determine the contents of a message. The USPS is legally prohibited from opening first-class mail without a search warrant.⁶³ Telephone carriers are restricted from listening to conversations by the Wiretap Act,⁶⁴ as are ISPs and email providers.⁶⁵ Even beyond legal limits, many delivery providers now use encryption systems that technologically prevent the provider from determining message contents; for example, Apple Messages and Signal are end-to-end encrypted so that only the designated recipient (and not any intermediary, including Apple or Signal) can decrypt a message. A fortiori, carriers who cannot even tell what a message says cannot discriminate on the basis of its contents.

It is easy to justify common-carriage access rules for delivery media—old and new—in light of their structural characteristics. From the intermediary’s point of view, the weak bandwidth constraints mean that carrying any particular communication is not a substantial technical burden. In the aggregate, of course, communications add up, but that is primarily an economic problem—one to be addressed with appropriate pricing and funding.⁶⁶ Where pricing is not available or insufficient, capacity limits on the volume of communications to or from a user are largely content-neutral ways of allocating bandwidth.⁶⁷

Carrying a communication is not a speech problem, except to the extent that the intermediary wants to make an expressive statement by carrying or refusing to carry particular messages. Historically, though, that argument has carried very little weight for traditional delivery media. This attitude is easy to justify by seeing delivery media from the perspective of speakers and listeners. Willing speakers and willing listeners have essentially the same interest in access to delivery media: the goal of forming the core free speech interest by communicating with each other.⁶⁸ If you want to send me an email and I want to receive the email, we are both thwarted if your email provider deletes your email.

An intermediary’s speech claims are weaker when they go up against those of matched speaker-listener pairs. The intermediary may not want to help the speaker and listener connect, but this is fundamentally an objection to their speech, not a claim about its own speech. It might prefer to deliver messages from other speakers it likes better; but when it does so, it forces listeners to receive messages from speakers they prefer less. As I argued in Listeners’ Choices, it is a core free-speech violation to make a listener listen to a speaker whose speech they do not want rather than listen to a speaker whose speech they want.⁶⁹ So while a delivery intermediary’s denial of access to a speaker or listener is not by itself a First-Amendment violation, the First Amendment leaves ample room for government to require delivery intermediaries to provide access.

In general, both speakers and listeners have standing to challenge denials of access to a delivery platform. In Murthy v. Missouri, the Supreme Court held that listeners do not have standing to challenge restrictions on speakers unless “the listener has a concrete, specific connection to the speaker.”⁷⁰ In the case of a speaker attempting to send a message to a specific listener (as opposed to the hosting platforms at issue in Murthy itself), this connection seems clearly satisfied. And where it is the listener who has been excluded from a platform (for example, disconnected by their ISP over alleged copyright violations), the impact on their speech interests as a listener is equally obvious.

If there is a distinction between analog and digital delivery media, it cuts in favor of applying access rules to modern digital intermediaries, not against. As bandwidth constraints drop further and further away, intermediaries’ arguments that they have a technical or economic need to discriminate among users on the basis of their speech get weaker and weaker. Most arguments to the contrary rest on a confusion between delivery and selection media. Commentators project the strong expressive interests in an intermediary’s selection function (both the intermediary’s own and those of the listeners they serve) onto the intermediary’s delivery function, without stopping to consider whether these functions can be separated and distinguished.

D. Hosting

Common-carriage access rules for hosting media generally facilitate listener choice. There is an obvious argument in favor of access rules: the more speakers that are available through a hosting intermediary, the wider the range of choices it offers to listeners. The entire web was better than AOL’s walled garden; a streaming service with ten million tracks beats one with one million. The hosting intermediary might have self-interested reasons to limit access (for example, to favor its affiliated speakers or to extract more money from speakers through price discrimination), but the listeners who use the platform generally prefer that it offer the widest possible range of speakers and speech. To a first approximation, listeners either side with the speaker in a speaker-hosting platform dispute (if they want the speech) or are at most indifferent (if they do not want the speech).

Common arguments against access rules that apply to other forms of media mostly do not apply to hosting media. First, there is no scarcity of bandwidth compelling hosting intermediaries to pick and choose among speakers to carry. Bandwidth on the Internet is effectively infinite. Cloudflare could serve every user in the United States if it needed to. This is not to say that Cloudflare could, would, or should do so for free—this level of access would be quite expensive and a speaker wanting to support hundreds of millions of massive downloads would quite reasonably be expected to pay commensurately. It is just that Cloudflare could serve everything to everyone.

Second, there are generally no operational constraints that cause one speaker’s content to interfere with another’s. Common Internet hosting intermediaries are technically capable of carrying almost any item of content within a category: videos at a given resolution, files consisting of arbitrary bitstrings, and so on. These items of content may have different sizes—and might be subject to caps for short-run capacity or economic reasons—but from a technical perspective, the intermediary is entirely indifferent as to their content. A broadcast radio station must deal differently with a talk-show host in studio one, a live musical performance in studio two, and a recorded program coming via audio link from a remote location. However, in an important sense, all apps in an app store are the same. Offering speaker A’s app does not divert resources needed to offer speaker B’s.

Third, there is no scarcity of listeners’ attention compelling hosting providers to prioritize some content over others. A delivery platform can fill up a listener’s queue with unwanted speech, making it harder to receive to the speech they want. If your telephone is ringing off the hook with telemarketers, your friends will get a busy signal every time they call. However, a hosting platform does not make any claims on a listener’s attention; it simply sits there passively until the user seeks out and requests the speech. No one is interested in all 100,000,000 tracks on Spotify; but for the most part, having access to an extra 99,900,000 does not take anything away from the 100,000 one might actually be interested in listening to.

To be sure, a hosting platform with 100,000,000 pieces of content is harder to browse than a platform with 100. But this should be understood as more of a selection problem than a hosting problem. Combining hosting and selection into a single platform function takes some of the control over speaker-listener matching away from listeners and vests it in the platform. A movie theater that shows 5 movies at time offers far less listener choice than a streaming platform that gives listeners access to a catalog of 50,000. Give that same listener a list of 5 recommended hot new releases and they have all of the choice-related benefits of the movie theater and none of the drawbacks. The creation of Internet-scale hosting intermediaries creates its own need for equally useful selection intermediaries, but the first step towards facilitating their healthy development is recognizing that selection is distinct from hosting.

None of this is not to say that access rules always actually enhance the choices available to listeners. The economics of multi-sided markets are complicated, and a badly designed access rule could undermine a pricing strategy that successfully attracts more speakers and more listeners to an intermediary. My goal here is narrower. I want to argue that rules that have the effect of increasing the range of speakers available on a hosting platform are pro-listener-choice, whether or not they are structured as open access rules. The actual creation of a regulatory regime involves difficult policy considerations and mechanism designs. My point is only that this policy space ought to be available to regulators and not be foreclosed by the First Amendment.

Indeed, access rules are even easier to justify for commodity hosting platforms than they are for delivery platforms. As we have seen, filtering rules for delivery media frequently translate into corresponding exceptions to access rules. Spam-blocking, for example, might be a case of reasonable network management under network neutrality rules. This, in turn, means that regulators need to be cautious with imposing access rules, lest they inadvertently cut off filtering that listeners depend on. A must-carry rule for email, for example, would be a spammer’s dream.

To the extent that listeners do their own filtering in accessing a hosting platform, hosting platforms do not require the same degree of caution with access rules. If regulators require that Candy Crush be available in app stores, it does no harm to a user who does not enjoy match-three games. If you don’t want to play Candy Crush, don’t download it.

E. Selection

For decades, speakers have been demanding access to selection intermediaries. In the 2000s, the issue of the day was “search neutrality”: equal access to search engines’ rankings.⁷¹ More recently, speakers have complained about being “downranked” on social media—that is, not placed in other user’s algorithmic feeds. In both cases, the complaint is the same: their speech is theoretically available to users but not recommended in practice.

The fundamental challenge with giving a coherent account of access to selection is the baseline problem.⁷² It is nearly impossible to describe what “correct” or “neutral” rankings would look like. Different users have different preferences, and even the same user has different preferences in different contexts and at different times. My Facebook News Feed should not be identical to yours; we have different friends and you like fashion while I like sports. My search results for “crab cakes” should be different than my search results for “crab canon,” and even my search for “Vikings” could be referring to Scandinavian seafarers, a football team, Mars probes, a TV series, or kitchen appliances.⁷³ As a result, different selection media can quite reasonably make different choices about speakers. Indeed, for a regulator to prescribe what a selection platform should do is to become a selection platform itself.

Thus, selection stands in sharp contrast to delivery and hosting, both of which have a plausible neutral baseline: deliver or host everything. Selection is more like broadcast in this respect: choices must be made. However, the reason for the choices is very different. The need for choices in broadcast stems from bandwidth being scarce; not all speech can be made available at all. The need for choices in selection stems from attention being scarce; listeners must choose among these the speech available to them. In broadcast, transmission and selection are inextricably linked. However, on the Internet, transmission (that is, hosting plus delivery) and selection can be distinct functions, one of which substantially overcomes the scarcity problem and the other of which confronts it full-force.

Access claims in the selection context are therefore effectively a zero-sum fight among speakers. To move speaker A up one place in a feed means pushing some other speaker B down one place. Platforms might make this choice for a variety of content-based reasons—profit, ideology, whimsy—but it is much harder to identify a legitimate reason for a regulator to prefer A to B or vice-versa. A neutrality rule in a delivery or hosting context works because the government can tell an ISP to deliver all IP datagrams with equal priority (network neutrality) or a cloud-hosting provider to host all lawful content (a must-carry regime); the baseline is content-neutral. But there is no simple corresponding neutrality rule for selection. To select is to choose on the basis of content.

I argued in Speech Engines for a more limited principle of relevance to search users. That is, a search result is a search engine’s guess at what a user will find relevant to their query.⁷⁴ The user’s goals are subjective from their perspective, but it is an objectively observable fact from the search engine’s perspective how well a result corresponds to a user’s goals. The search engine must make a subjective guess at what the user will find relevant, but it is an objective fact whether the result the engine actually shows to the user corresponds to that best guess. A regulator therefore has a principled basis to intervene when a search engine is disloyal to its users—and it is disloyal when it shows them results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant. This does not mean the regulator can substitute its own relevance judgments for those of the user or the search engine, but it does mean that the regulator can prevent the search engine from lying to users and it might be able to prevent certain conflicts of interest that might tempt the search engine into underplaying its hand.

This argument generalizes into a broader claim about selection intermediaries and listeners. A selection intermediary offers listeners a way to choose among speakers. To prohibit the intermediary from doing so, or to dictate how it makes the selection, is to interfere with listeners’ ability to choose. We should understand this as an interference with listeners’ First Amendment rights to listen (and not just the intermediary’s right to speak). At the same time, we should recognize that a selection intermediary that is dishonest or disloyal also interferes with listeners’ First Amendment interests. The dishonesty and disloyalty can provide a content-neutral basis for identifying problematic recommendations by selection intermediaries, even though those recommendations are themselves content-based.

Moody v. NetChoice

The Supreme Court’s recent decision in Moody v. NetChoice was a missed opportunity to clarify these principles.⁷⁵ Texas and Florida passed content-moderation laws that, in various ways, prohibited major social-media platforms from restricting content on the basis of political viewpoint (Texas) or from restricting content from political candidates or journalistic enterprises (Florida). The actual holding in Moody was a nothingburger about the appropriate standards for facial challenges; but in dicta, a five-justice majority explained that the platforms’ “selection, ordering, and labeling of third-party posts” were protected expression.⁷⁶

This was a thoroughly speaker-oriented perspective. It treated the problem with the states’ laws as that “an entity engaging in expressive activity, including compiling and curating others’ speech, is directed to accommodate messages it would prefer to exclude.”⁷⁷ This perspective makes perfect sense when the entity is a newspaper or a parade, both of which contribute to the marketplace of ideas by adding perspectives they think that readers or viewers will appreciate. And it is true, in a sense, for social media, where many platforms curate speech in ways that reflect specific viewpoints.

However, in another more accurate sense, the value of selection algorithms on social media is to users as listeners: the selection algorithms help them find speech they find interesting, valuable, and relevant to their diverse interests. A state mandate to insert some speech into a user’s feed or search results interferes with the user’s ability to listen to the speech that the user actually wants to hear. It is not just compelled speech as against the platform—it is also compelled listening as against the user. Put this way, the First Amendment problem is blindingly obvious.⁷⁸

This shift in perspective—from speaker to listener, from platform to user—is important for two reasons. First, it gives a more convincing response to the states’ argument that the platforms are not really speaking in most of their selection decisions. Facebook does not really have an opinion on whether my cousin’s apple pie photos or my friend’s story about a long line at the grocery store is worthier speech, but I certainly do. There is a sense in which the speech value of Facebook’s ranking decisions is derivative of my speech interests.

This is a compelling response to Texas’s attempt to inject political speech into social-media feeds on a viewpoint-neutral basis. It is a bit uncomfortable for Facebook to argue that it has an expressive preference to discriminate on the basis of viewpoint, but it is perfectly natural for individual users to have expressive viewpoints and to prefer content on that basis. For listeners to choose speakers on the basis of viewpoint is not to interfere with the freedom of speech; it is an exercise of that freedom and the point of the whole enterprise. Subscribing to The Nation instead of The National Review (or vice-versa) is viewpoint discrimination on the user’s part, and that is a good thing! Social-media users want feeds that reflect their divergent interests and viewpoints, and social-media platforms advance, rather than inhibit, First Amendment values when they cater to these listener preferences.

Second, the focus on listeners’ expressive interests in choosing what speech they receive on social-media platforms and on having platforms that can algorithmically make selections in accordance with those interests makes clearer that this is an argument only about selection and not necessarily about hosting. To the extent that states attempt to regulate platforms’ hosting functions with neutrality or must-carry mandates, those laws may rest on a firmer basis than their attempts to regulate platforms’ selection functions.⁷⁹ As I argued above, there is a plausible neutral baseline for hosting, and regulating hosting by itself does not interfere with listeners’ choices in the same way as regulating selection does.

In the actual Moody and Paxton cases, the platforms’ hosting and selection functions were closely related, and the most common content-moderation remedy they applied was to delete the content entirely.⁸⁰ Similarly, the states’ laws ran rules that sounded in hosting (“permanently delete or ban”) together with rules that sounded in selection (“post-prioritization” or “shadow ban”), as if all of these practices were entirely equivalent. However, it is possible to imagine future laws that more clearly require hosting of content on a viewpoint-neutral basis while leaving platforms greater discretion over selection. I think these laws pose genuinely harder questions. Moody’s majority opinion collapses these distinctions in an unhelpful way.

Antitrust and Self-Preferencing

A listeners’-choice perspective also shows why antitrust regulation of selection intermediaries is broadly permissible, even when some of the anticompetitive conduct complained of involves the selection of speech.⁸¹ Again, the key point is that although users have content- and viewpoint-based preferences among speech, the government can act neutrally in terms of content by taking those preferences into account, whatever they are. An app store that rejects fart apps because “the App Store has enough fart, burp, flashlight, fortune telling, dating, drinking games, and Kama Sutra apps, etc. already”⁸² is certainly expressing a viewpoint. However, to the extent that users want fart apps and the app store is suppressing competing fart apps in favor its own, promoting welfare-enhancing consumer choices is a perfectly

legitimate government interest and the harm is cognizable under traditional antitrust principles.

Thus, rules against self-preferencing by selection intermediaries will generally be permissible under the First Amendment. This position may sound absurd if one sees only the First Amendment interests of the intermediary, and it is still difficult if one takes into account the interests of its competitors. However, it becomes entirely reasonable if one considers the interests of affected users. Indeed, there is a natural congruence between the interests of users as listeners (my argument in this essay) and the interests of users as consumers (the traditional stance of antitrust law).

More specifically, it would be permissible to have a rule that a pure selection intermediary must treat first-party content that it itself produced evenhandedly with third-party content from competitors. The intermediary will have valid, expressive reasons to prefer some content over others, and these decisions will mostly be off-limits to regulatory scrutiny, as discussed above. However, a regulator can make clear that the platform cannot prefer first-party content simply because it is first-party content. The platform can use any ranking rules it wants, but those rules must be applied even-handedly to all—or at least, the platform must give users the option of disabling any self-preferencing.

For similar reasons, disclosure of speech-selection intermediaries’ commercial ties is also generally permissible under traditional consumer-protection principles. Listeners can legitimately expect to know when a speaker has a financial incentive to tell them one thing rather than another, an expectation that applies to speech selection as well as to speech itself. At the moment, paid advertising in search results and in social-media feeds must be disclosed as such; however, a stronger rule that required selection platforms to disclose when recommended content is first-party, or when there are substantial financial ties between the platform and a speaker, would also be allowable for the same reasons.

Finally, full structural separation between hosting, delivery, and selection is a plausible antitrust remedy or regulatory mandate. In Part IV, I will discuss in more detail why this kind of separation might be appealing from a free-speech perspective. For now, I just want to note that the economic and technical separation of these functions is itself plausible from a First Amendment perspective, Moody notwithstanding. I have been arguing that hosting and delivery platforms could be subject to must-carry rules, but selection platforms generally cannot. Much of the gap between the two sides’ positions in Moody arose from the fact that the laws’ proponents generally cited caselaw about common carriage in hosting and delivery settings, while

the laws’ opponents generally cited caselaw about expressive choices in selection settings.

The thing that made the Moody cases difficult to resolve was that the platforms combined both hosting and selection functions, and most of the briefing (and the opinions) ran these functions together. This would seem to open up an argument on the platforms’ part: Moody confirms they have full First Amendment protection when they engage in selection, so even a pure hosting platform is always allowed to engage in selection—i.e., there is a First Amendment right to combine these two functions. However, I think this does not follow from Moody; or to the extent that it does, Moody is wrong.

The thrust of the common-carriage cases is that the public provision of standardized service can be subject to nondiscrimination obligations.⁸³ This, for example, is what the Telecommunications Act of 1996 attempted to do with its distinction between “telecommunications service” (standardized and common-carriage) and “information service” (bespoke and unregulated). To the extent that this distinction is coherent (and I think that it is, much of the time), nondiscrimination obligations should apply to the standardized services and not to the individualized ones. Moody may have missed this distinction, but the Court’s opinion in 303 Creative LLC v. Elenis seems to hinge on it; that is, it is First-Amendment-compelled speech to require a designer to make a custom wedding website (“pure speech”), but it is perfectly permissible to require a merchant to sell a commodity product to all comers.⁸⁴ In listener terms, listeners are paying attention to the intermediary’s own speech in individualized cases like selection, while paying attention to third-party speech in standardized cases like hosting.

Unranked Feeds

An interesting partial and special case of separating hosting from selection is to require a provider to include an unranked or chronological feed for those users who want it. Facebook offers both “Top Posts” (algorithmically ranked) and “Most Recent” (chronological) feeds; Reddit offers “Best” and “Hot” (algorithmically ranked) but also “New” (chronological) sorting options.

What makes these options feasible is that there is a plausible objective baseline. A chronological feed on Facebook is “all posts from friends and pages I follow, sorted by recency.” This is workable in a way that “all posts I would be interested in” is not. The restriction to content from accounts that one follows is what makes the option to display everything tractable. A purely chronological feed of everything posted to X (the “firehose”) is not of interest to most users—it would be overwhelmingly vast—but a purely chronological feed of everything posted by those they follow is. For similar reasons, a non-algorithmic search engine is an oxymoron except in domains that are so small or simple as to barely require a search engine at all. Anything larger than “find on this webpage” requires contestable choices about ordering.

A chronological-feed option is listener-choice enhancing. A chronological-feed mandate would not be. Facebook and other social-media platforms have extensive evidence showing that users stay on their sites longer and engage with more posts when they see non-chronological feeds. This is a legitimate user preference; given the limits of attention, the user benefits greatly from delegating the choice to Facebook.⁸⁵ However, not every user wants algorithmic feeds. I, for example, only used chronological ordering on Twitter, and have stuck to that preference on federated platforms. This, too, is a legitimate user preference; a platform that forces algorithmic ordering on everyone when chronological ordering is feasible thwarts some listeners’ choices about speech selection.

This is another way in which Moody paints with too broad a brush. Seeing selection as purely a matter of platform speech makes the majority insensitive to listeners’ speech interests. Requiring a chronological option from social media feeds in addition to a platform’s preferred algorithmic option looks like a restriction on the platform’s speech rights; indeed, to the majority it might even be compelled speech. However, a chronological feed option is also a way of respecting users-as-listeners’ choices about speech without forcing a platform to make ranking choices that it and its users would otherwise disagree with. Requiring a chronological option strictly increases the choices available to listeners, while not interfering with a platform’s ability to provide its preferred ordering to any listeners who are interested in hearing it.

IV. Filtering

Now consider media from the perspective of unwilling listeners. As we will see, there are really three different types of unwilling listeners in media regulation. In each case, it is helpful to distinguish between (1) downstream filtering infrastructure that empowers listeners themselves to avoid unwanted content, and (2) upstream filtering rules that prevent that content from reaching them in the first place.

First, there are listeners who are uninterested in or who actively dislike particular content: opera fans who loathe rap music or reality television fans who find scripted shows unbearably dull. Here, downstream filtering infrastructure is typically sufficient. As long as there is something they would rather watch (an access problem), as long as they are able to find out about it (a selection problem), and as long as they are actually able to switch to it (which is true for most media),⁸⁶ they can watch operas and reality shows, and ignore the rap and scripted dramas. It does not bother them, because they do not need to see it. Upstream filtering rules are unnecessary.

Second, there are listeners who are individually targeted with specific unwanted content that is hard for them to avoid. This is fundamentally a delivery problem; it does not arise with other types of media. Sometimes speakers target individual listeners, like a harassing telephone caller. Sometimes they target many listeners indiscriminately, like an email spammer. Either way, listeners can try to use self-help downstream filtering to avoid it, but if that fails, they may need upstream filtering to help prevent it from reaching them in the first place.

And third, there are minors. Sometimes, children want to avoid violent, sexual, disturbing, or other adult-themed content because it upsets them, but they come across it by accident and cannot look or flip away in time. Sometimes—perhaps more often—the problem is that children are willing to see this material, but their parents or guardians want to shield them from it. In both cases, the theory is that children are less capable of making choices for themselves as listeners than adults are, and therefore that some kind of upstream filtering rules are necessary because downstream ones will fail. Either the kids themselves will be less good at filtering than their parents would be, or the kids will affirmatively evade the filtering their parents try to impose.

Downstream filtering infrastructure also plays a crucial role in supporting (or undermining) the rationales for other kinds of media regulations. On the one hand, good downstream filtering plays a crucial role in making it possible for listeners to pick and choose among the superabundance of content that access rules try to make available. On the other, good downstream filtering can reduce the need for upstream filtering rules—in First Amendment terms, it is frequently a “less restrictive alternative.”

A. Broadcast

In broadcast media, unwilling listeners were typically expected simply to change the channel. They may not always have had many other broadcast options, but no one was forcing them to watch any particular broadcast. Even this limited measure of choice was sufficient to protect unwilling listeners from programs they despised. As the range of channels expanded (with it, the range of choices), the less of an imposition any one unwanted channel was on listeners—indeed, the less likely they were to notice or care about it at all. Similarly, by their nature, very few broadcast programs were personally targeted at, or specifically harmful to, individual listeners. The local CBS affiliate simply did not care enough about Angela Johnson at 434 Oakview Terrace to preempt Murder She Wrote with an hour-long special insulting Johnson and her life choices.

Instead, the filtering problems on broadcast media primarily concern minors. The theory of “just change the channel” does not work for them for two reasons. First, something offensive or shocking could come up unexpectedly when one is just flipping through channels. This was the case in FCC v. Pacifica Foundation, in which the Supreme Court upheld the FCC’s finding that a radio broadcast of George Carlin’s “seven dirty words” routine was indecent in violation of its regulations.⁸⁷ And it is the case with the FCC’s modern attempts to extend its obscenity-and-indecency rules to cover fleeting expletives and other sudden intrusions into otherwise family-friendly broadcasts, like Bono calling U2’s Best Original Song win at the Golden Globes “really, really, fucking brilliant” live on air, or the 2004 Super Bowl wardrobe malfunction.⁸⁸ These are cases where a listener (here, a parent making choices on behalf of their child) cannot effectively make a choice not to receive the unwanted material because of the linear, real-time nature of broadcast audio and video. The character of the channel changes more quickly than the listener can flip away.

Second, sometimes children want to watch shows their parents do not want them to. Nominally, the theory here is that parents cannot constantly supervise their children’s TV viewing; stations have to do the filtering work that parents cannot.⁸⁹ This is why the FCC’s indecency regulations are confined to only the hours from 6:00 AM to 10:00 PM each day: at night, when indecency regulations do not apply, kids are assumed to be in bed and not watching TV.⁹⁰ The indecency rules are an incursion on adults’ abilities as listeners to choose what speech they want to receive. They are an exception to the normal rule that willing listeners beat unwilling listeners. The justification is simply the usual one offered so often in American law: protecting the supposed innocence of the young from the purportedly corrupting influence of being aware that sex is a thing that exists. The eight hours at night when indecency rules do not apply serve as a concession to adults’ interests as listeners.

I say that this is “nominally” the theory of broadcast indecency regulation because it only really makes sense in a world where the main audio and video media are broadcast—a world we have not lived in for decades. Cable, satellite, and other subscription services have never been subject to the indecency rules. Here, the theory is that parents can choose whether or not to subscribe, presumably in a different way than they could choose whether or not to have a TV. Thus, they have an upfront choice that they can use to prevent their children from receiving unwanted indecent material. If you do not want your kids to watch Skinemax late at night, do not get cable, or do not pay extra for premium channels. Similar laws and similar logic apply to “over-the-top” broadcast services on the Internet, like ESPN+’s live sports games. If you do not like it, do not subscribe.

At times, the government has tried to impose more stringent filtering rules on broadcasters. Listeners’ choices provide a simple and compelling explanation of where the doctrine has come to rest. Consider United States v. Playboy Entertainment Group, Inc., where § 505 of the 1996 Telecommunications Act required cable operators to “fully scramble or otherwise fully block”⁹¹ sexually explicit programs except between the hours from 10:00 PM to 6:00 AM the next day.⁹² Of course, most cable operators already scrambled sexually explicit channels for non-subscribers, and sexually explicit channels like Playboy Television were typically “premium” offerings sold à la carte, so only paying subscribers to these specific channels would have a converter box to descramble them.⁹³ So far, this was simply a case of parental choice over what broadcast services to subscribe to.

The technological complication was “signal bleed”; the analog scrambling technologies available in the 1990s could not prevent portions of the audio and video from leaking through, albeit in somewhat garbled form.⁹⁴ To Congress, signal bleed meant that existing scrambling by itself was insufficient, and so cable companies would need to “fully block” such content if they could not “fully scramble” it. However, the Supreme Court observed that there was a less-restrictive alternative to fully banning a channel—“block[ing] unwanted channels on a household-by-household basis.”⁹⁵ Indeed, this capacity was already required of cable systems by § 504 of the Act,⁹⁶ so the law contained its own less-restrictive alternative. In other words, a legal regime requiring upstream filtering for all listeners by broadcast intermediaries was unconstitutional because there was a downstream alternative that gave individual listeners a more granular choice.

A more technical complex broadcast filtering system is the “V-chip,” which the 1996 Telecommunications Act required in all televisions shipped through interstate commerce.⁹⁷ The Act describes the V-chip bloodlessly as “a feature designed to enable viewers to block display of all programs with a common rating,”⁹⁸ but the intent and implementation were that the rating systems would flag programs with sexual, violent, or other type of adult content. While the V-chip is mandated by law, the ratings that it interprets are not. The TV Parental Guidelines, which include classic bangers like TV-14-LS (many parents would find the contents unsuitable for children under 14 because of crude language and sexual situations) are “voluntarily rated by broadcast and cable television networks, or program producers.”⁹⁹ Overall use of the V-chip seems to have peaked at about 15 percent of parents.¹⁰⁰

It is enlightening to consider the V-chip, like § 504, as a mechanism for creating listener choice under the choice-unfriendly conditions of broadcast. In both cases, signals are still transmitted indiscriminately to all listeners, but in both cases, listeners can individually choose whether to opt in or opt out of making those signals intelligible. Section 504 does so in a less granular way (entire channels), while the V-chip does so in a more granular way (individual programs), but the general idea is the same. It is not a coincidence that in both cases, the regulatory regime converged on a technical system that put more choices in the hands of individual households. This overall downstream movement of choices about speech—from speakers and intermediaries to listeners; from “push” media to “pull” media—is one of the most significant trends in recent media history.

B. Delivery

Now consider filtering rules that help unwilling listeners avoid unwanted deliveries. The First Amendment does not operate directly here; outside of some narrow contexts involving a “captive audience,” there is no First Amendment right not to be spoken to.¹⁰¹ Instead, laws designed to protect listeners from unwilling communications in delivery media are generally constitutional, provided that they are suitably tailored to the actual harms suffered by listeners who are genuinely unwilling.

The most obvious example is that anti-harassment laws have repeatedly been upheld when they involve one-to-one communications.¹⁰² Repeated telephone calls or harassing emails can be the subject of valid restraining orders, civil judgments, or criminal convictions.¹⁰³ The key here, as I argued in Listeners’ Choices, is that these restrictions do not prevent speakers from addressing willing listeners.¹⁰⁴ They remain free to telephone anyone else they want; only one particular number is forbidden. The legal system can therefore protect the unwilling victims of harassment without interfering in the core First Amendment relationship between willing speaker and willing listener.¹⁰⁵ An order requiring a speaker to take down a blog post about the victim interferes with that relationship; an order requiring them to stop sending direct messages to the victim does not.¹⁰⁶

Listeners can opt out of unwanted one-to-one commercial speech. The Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) for email, the Telephone Consumer Protection Act (“TCPA”) for telephone and Short Message Service (“SMS”), Do-Not-Call for telephone, and the TCPA for faxes all broadly prohibit sending certain types of commercial solicitations to unwilling listeners. CAN-SPAM uses an opt-out system; a sender gets one bite at the apple but must refrain from further emails once a recipient objects.¹⁰⁷ With some exceptions, TCPA prohibits the use of automated dialers and prerecorded messages (that is, bulk communications particularly unlikely to be of interest to individuals) unless they affirmatively opt in.¹⁰⁸ Do-Not-Call bars all unsolicited commercial calls to numbers on the list,¹⁰⁹ and TCPA bars all unsolicited commercial faxes.¹¹⁰ All of these laws have been upheld against First Amendment challenges.¹¹¹

The First Amendment rule for unwanted postal mail is even stronger. In Rowan v. United States Post Office Department, the Supreme Court upheld a law under which “a person may require that a mailer remove his name from its mailing lists and stop all future mailings to the householder.”¹¹² Although the law was framed in terms of allowing recipients to opt out of receiving “erotically arousing or sexually provocative” advertisements,¹¹³ it allowed recipients “complete and unfettered discretion in electing whether or not [they] desired to receive further material from a particular sender,”¹¹⁴ and the legislative history indicated that neither the postal service nor a reviewing court could “second-guess[]” the recipient’s decision.¹¹⁵ “Nothing in the Constitution compels us to listen to or view any unwanted communication,” wrote Chief Justice Burger for a unanimous court.¹¹⁶ Compare Rowan with Bolger v. Youngs Drug Products Corp., in which the Court held a law prohibiting the mailing of contraceptive advertising unconstitutional:¹¹⁷ that is, a prohibition on the use of mailings was constitutional when the prohibition was requested by the recipient (Rowan) but unconstitutional when the prohibition was imposed by the government (Bolger).

Although Rowan is sometimes discussed as a captive-audience case,¹¹⁸ it is better understood as a case about delivery media. Consider Frisby v. Schultz, a true captive-audience case: there is nowhere to go to hide from protesters outside your door, so a law prohibiting residential picketing is constitutional.¹¹⁹ By contrast, the Supreme Court has treated self-help as effective against unwanted mail. Bolger stated that the “short, though regular, journey from mail box to trash can is an acceptable burden, at least so far as the Constitution is concerned.”¹²⁰ The only way this Bolger dictum can be squared with Rowan is if the basis of Rowan’s holding is listeners’ rights against unwanted communications, rather than one being a captive audience in one’s home against unwanted postal mail.

It is also widely accepted that there is no First Amendment problem if a delivery carrier implements some form of filtering or blocking at the request of a user. Wireless and landline telephone companies offer call blocking to their customers, which allows a user to block all further calls from a number. Indeed, FCC regulations explicitly permit providers to block calls that are likely to be unwanted based on “reasonable analytics”¹²¹ so long as the recipient has an opportunity to opt out of the blocking.¹²² Email filtering is also incredibly widely deployed. Some users do the filtering themselves, manually or with an app, but many rely on the filtering (both explicit blacklists and using machine learning) offered by their email providers. Here again, § 230 plays a role: the most common reason that delivery media block “otherwise objectionable” communications is that their users object to them, and spam is a common reason.¹²³

Finally, many laws require speakers to accurately identify themselves upstream when using delivery media so that listeners downstream can decide whether or not to receive their speech. CAN-SPAM prohibits false or misleading header information,¹²⁴ prohibits deceptive subject lines,¹²⁵ and requires that advertisements be disclosed as such.¹²⁶ The Truth in Caller ID Act prohibits spoofing caller ID information “with the intent to defraud, cause harm, or wrongfully obtain anything of value.”¹²⁷ The Junk Fax Prevention Act of 2005 (“JFPA”) requires clear “identification of the business, other entity, or individual sending the [fax] message.”¹²⁸ Although there is a right to speak anonymously under many circumstances, there are limits on how far a speaker can go in lying about their identity to trick a listener into hearing them out. Importantly, some of these laws require delivery intermediaries to implement the infrastructure for accurate identification. The FCC, for example, requires telephone providers to implement a comprehensive framework against caller-ID spoofing known as “secure telephone identity revisited and signature-based handling of asserted information using tokens standards,” otherwise abbreviated as “STIR/SHAKEN.”¹²⁹

C. Hosting

Listener choices play a central role in the justifications for hosting providers’ First Amendment rights—and also in the justification for speakers’ access rights to hosting platforms. These justifications presume that listeners can voluntarily choose to engage with hosted content they want and to avoid hosted content they do not want. In the terminology of Listeners’ Choices, listeners can be asked to bear the necessary “separation costs” because they can easily and inexpensively choose where to click.¹³⁰ It follows, then, that unwilling listeners’ objection to content are not a sufficient reason to prevent it from being hosted for willing listeners.

The Supreme Court’s decision in Snyder v. Phelps is a nice example.¹³¹ In addition to its funeral protests, the Westboro Baptist Church has a website that is, if anything, more offensive and upsetting. However, a website is even easier for an unwilling listener to avoid. The Church physically picketed at Albert Snyder’s son’s funeral, but he only found the website “during an Internet search for his son’s name.”¹³² Unsurprisingly, he pressed only the funeral-protest theory before the Supreme Court and abandoned his tort claims based on the website.¹³³ The Court held that the First Amendment protected the Church’s picketing, and the argument is even stronger for the website.

Now consider whether hosting providers can have responsibilities to avoid carrying harmful-to-minors material. To simplify only slightly, the history of anti-indecency regulation is that some adults have tried to restrict minors’ access to sexually themed content by passing upstream filtering laws requiring speakers and hosting platforms to prevent the posting of such content. The courts have responded by invalidating these laws whenever listener-controlled downstream filtering is a plausible alternative. Indeed, it is striking how many contexts the same basic rationale has worked in.

Start with Sable Communications of California, Inc. v. FCC, in which federal law regulated “dial-a-porn” services by prohibiting the transmission of indecent interstate commercial telephone messages.¹³⁴ While the prohibition might have been constitutional as to minors, adults have a constitutional right to view indecent but not obscene material. Because the statute prohibited transmission to adults as well, it restricted protected speech, and therefore was unconstitutional.

Put this way, Sable is a classic hosting case of both willing and unwilling listeners. The fact that the speech might reach some unwilling (minor) listeners does not mean that it can be prohibited entirely in such a way as to deprive willing (adult) listeners. Indeed, this first-cut explanation will apply perfectly well to almost all of the cases in this section. It is not wrong.

However, Sable is also a filtering case. The FCC had previously considered multiple technologies to block minors without blocking adults, including credit-card verification, access codes that would be provided only following an age verification process, message scrambling requiring a descrambler that only adults would be able to purchase, and customer-premises blocking, in which subscribers could block their phones from being

able to call entire exchanges (including the paid numbers over which Sable and other dial-a-porn operators provided their services). The Court specifically identified these technical schemes as plausible “less restrictive means, short of a total ban, to achieve the Government’s interest in protecting minors.”¹³⁵

These are all technologies to distinguish adults from minors, but they are also all filtering technologies. All four of them require a user to take an affirmative step to listen to particular speech. Indeed, the act of dialing a phone number itself is an affirmative step that these other mechanisms could piggyback on. This is why I describe Sable as a close cousin to a hosting case. To be sure, Sable Communications was delivering its own speech and not that of third parties, but it was fundamentally sending content to listeners on demand, and in such a way that they could predict the general outlines of the speech they were about to receive. (This fact alone is sufficient to distinguish FCC v. Pacifica Foundation and the other broadcast-indecency cases.¹³⁶)

The same arc is visible in the Supreme Court’s caselaw on indecency on the Internet. The first stop was Reno v. American Civil Liberties Union.¹³⁷ The Communications Decency Act prohibited the transmission of indecent or sexual material to minors¹³⁸—including a good deal of material that was fully constitutional for adults to receive.¹³⁹ The government tried to defend the statute by arguing that it only required intermediaries to refrain from sending such material to minors, while leaving them free to send it to adults.¹⁴⁰ However, the Court held that “this premise is untenable”—that “existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults.”¹⁴¹ In other words, the absence of effective age verification turned a de jure rule against sending indecent material to minors into a de facto rule against hosting it in general.¹⁴²

Seven years later, in Ashcroft v. American Civil Liberties Union, the Supreme Court confronted a more narrowly drafted law, the Child Online Protection Act (“COPA”).¹⁴³ Again, the statute prohibited sending to minors certain material that was constitutional for adults to receive.¹⁴⁴ This time, however, the affirmative defenses were broader; providers were protected as long as they required a credit card, digital age verification, or any other “reasonable measures that are feasible under available technology.”¹⁴⁵ The Court held that COPA was unconstitutional because “blocking and filtering software”—software operated and controlled by parents to limit the sites their children can access—was a less restrictive and more effective alternative.¹⁴⁶

As in Playboy Entertainment Group, the availability of more effective downstream filtering technologies meant that a law requiring upstream filtering was unconstitutional. However, unlike in Playboy Entertainment Group, the downstream filters were made available by third parties. The fact that parents could install their own filtering software meant that website hosts were under no duty to do their own filtering. This is a listener-choice-facilitating rule: Yes, it transfers some of the burdens of filtering from intermediaries to listeners, but it also means that each family can choose for itself how to tune its filters, if any.

In United States v. American Library Ass’n, the Supreme Court upheld the provisions of the Children’s Internet Protection Act (“CIPA”), which conditioned federal funding to schools and libraries on their installation of filtering software.¹⁴⁷ A four-Justice plurality held that the condition was a valid exercise of Congress’s Spending Clause power and that library Internet access was not a public forum.¹⁴⁸ Meanwhile, Justice Kennedy and Justice Breyer’s concurrences in the judgment made nuanced arguments about listeners’ choices. Justice Kennedy’s argument rested on the government’s claim that “on the request of an adult user, a librarian will unblock filtered material or disable the Internet software filter without significant delay”—that is, CIPA allowed willing adult listeners to decide for themselves what sites to view.¹⁴⁹ Justice Breyer made a similar point, arguing that an unblocking request was a “comparatively small burden.”¹⁵⁰ Whether or not these claims are empirically accurate, the general principle is consistent with a deference to listener-controlled choices about filtering, subject only to the carve-out that minors are not regarded as having the autonomy to choose to view certain material that their elders regard as harmful to them.

D. Selection

I have argued that selection generally facilitates listener choices among speech, and that government attempts to alter platforms’ selection decisions interfere with listeners’ practical ability to find the content that they want. This is not to say that platforms’ selection decisions are ideal or give listeners the full degree of choices they might enjoy. Platforms will almost always get some users’ choices wrong some of the time. Every update you scroll past or search result you ignore is a mistake from your perspective. Platform-provided selection is better than the chaos of content without selection, but there is almost always room to improve.¹⁵¹

It is helpful, then, to recognize that the bundling of hosting and selection on today’s social-media platforms may be a bug rather than a feature. The previous subsection argued that separation of hosting and selection could be permissible as a way for government to ensure that speakers are able to be heard by listeners who genuinely want to hear them (hosting) while not forcing their speech on listeners who do not (selection). However, there is another advantage to clearly separating the two functions, whether required by regulation or voluntarily adopted by a platform.

What would a world where social-media platforms separated hosting from selection look like? The short answer is that it would look much more like web search already does. Hosting providers make content available at speakers’ request, with stable URLs at reachable IP addresses, and transmit that content to listeners at listeners’ request. Meanwhile, search engines index the content and provide recommendations of relevant content to listeners, also at listeners’ request. Listeners have a choice of competing search engines to help them make their choice among competing speakers. The system is not perfect—Google has a dominant market share for general web search in the United States—but there is competition for those users who are willing to use other search engines. For example, Bing, DuckDuckGo, and Kagi are three highly creditable alternatives.

Several commentators have described a similar possible separation for social media. One proposal from a group of Stanford researchers is for “middleware,” defined as “software, provided by a third party and integrated into the dominant platforms, that would curate and order the content that users see.”¹⁵² Users on the platform would rely on the platform for hosting speakers’ content, but third-party middleware would do the selection. The first and most obvious virtue of middleware is that it introduces competition into the selection process, even when a platform is “dominant”; a monopoly on hosting does not automatically translate into a monopoly on selection.

The authors of the Stanford proposal argue that middleware would “dilute[] the enormous control that dominant platforms have in organizing the news and opinion that consumers see.”¹⁵³ This is entirely correct, but I would put the point differently. Middleware pushes control from a platform towards its users, specifically towards users as listeners. An integrated platform benefits from its position at the center of the two-sided market for hosting, even if its selection is disappointing to users. However, when selection is broken out, selection intermediaries will attract users precisely to the extent that they succeed in satisfying those users’ desire for useful advice about what speech to listen to. That is, middleware selection providers compete along the right axis.

A close relative of middleware—or perhaps a subset of it—is “user agents”: software controlled by the end user that takes the content from a platform and curates it. The difference between middleware and a user agent is that middleware is integrated with the platform and takes over the selection function, while a user agent starts from the content selected by the platform and performs a second round of selection on it. For example, an ad blocker integrated into a user’s browser takes the content selected by a website and curates it by removing the ads. I have argued that these user agents are important for user autonomy in deciding what software to run on their computers, and a similar argument applies to users’ autonomies over what speech they receive.¹⁵⁴

Ben Thompson, a technology and business analyst and journalist, offered a fascinating road-not-taken proposal for Twitter (prior to its transformation into X by Elon Musk).¹⁵⁵ Thompson argued that Twitter should be split in two: TwitterServiceCo would be “the core Twitter service, including the social graph”; TwitterAppCo would be “all of the Twitter apps and the advertising business.”¹⁵⁶ TwitterAppCo would pay TwitterServiceCo for application programming interface (“API”) access to post to timelines and read tweets, but so could other companies. As Thompson observes, this solution would “cut a whole host of Gordian Knots”: it would make it easier for new social-media entrants to compete on offering better clients or better content moderation; it would pull many controversial content-moderation decisions closer to the users they directly affect; and it would enable a far greater diversity of content moderation policies (both geographically and based on user preferences).¹⁵⁷

Needless to say, this was not the route that Musk followed after his acquisition of Twitter—but it is much closer to the route that many post-Twitter social-media services are following. In their ways, Mastodon, Bluesky, and Threads have embraced a version of the middleware ideal, but with an interesting twist. All three of these systems have a “federated” approach to hosting. Users have a direct affiliation with a server or system; they upload their posts to it, and they read other users’ posts through it.

So far, so familiar. The difference is that these services all federate with other services providing similar functionality to their own users. They copy posts from other servers; they make their own users’ posts available for other servers to copy. The result is that content posted by a user anywhere is available to all users everywhere. As a consequence, any given server has less power over its users; they can migrate to a different server without cutting themselves off from their connections on the social graph. Mastodon, for example, has built-in migration functionality that allows users to change servers and have their contacts automatically update subscriptions to the new one.

Federation also has substantial content-moderation benefits because, like middleware, it pushes content moderation closer to the listeners who are directly affected by it. Each federated server can have its own content-moderation policy—that is, each server can implement its own selection algorithm. This is not quite middleware as such, in that a server combines hosting and selection. However, it is much closer than a fully integrated platform would be. Indeed, once it hits a basic baseline of technical competence and reliability, a federated server’s principal differentiator is its moderation policy. So here, too, users who prefer a particular set of policies as listeners have the ability to choose on that basis. This, too, is speech-promoting.

The most careful theorization is of this model is Mike Masnick’s Protocols, Not Platforms.¹⁵⁸ Masnick argues that the key move is to separate a platform into a standardized open protocol and a particular proprietary implementation of that protocol. The interoperable nature of the protocol is what ensures that implementations are genuinely competing on the basis of users’ preferences over content, and not just based on the lock-in network effects of a single platform that has the largest userbase. That is, interoperability enables migration, which enables competition, which promotes competition and speech values. Masnick gives a detailed argument for why this model promotes diversity in users’ speech preferences. I would add only that this diversity is primarily diversity of users as listeners.

To finish, I would like to note a type of selection that can come closer to the middleware goal of facilitating listener choice, even within proprietary platforms. Shareable blocklists (a) allow users to make and share a list of users they do not want to see or receive any content from, and (b) allow other users to import and use another’s shared blocklist.¹⁵⁹ Blocking is a relatively crude form of selection; it does not necessarily work against abusers or spammers who change their identity or use sock puppet accounts, nor does it let through individual worthwhile posts from users who are otherwise blocked. Still, blocklists satisfy the key desideratum: they are listener-controlled filters. Shareable blocklists have been used for email, on Twitter (before X discontinued this feature), and for ad-blocking on the web, among other settings.

Conclusion

Internet media come in different bundles of functions than pre-Internet media did. Offline, broadcast combined transmission and selection in a way that made it appear that there was a natural connection between speakers’ access to a platform and listeners’ interests, and that both were naturally opposed to media intermediaries’ own speech claims. All of this was true enough in that context, given the structural constraints of the broadcast medium.

However, the assumption that listeners and speakers are united against intermediaries is simply not true when applied beyond the broadcast context. Instead, we frequently find that intermediaries are listeners’ allies, providing them with useful assistance in finding and obtaining the speech of interest to them—and that they form a united front against speakers trying to push their speech on unwilling listeners. Applying the broadcast analogy in this context can result in making unwilling listeners into captive audiences, all while claiming that it is necessary in the Orwellian name of listeners’ rights.

Instead, I have argued that to think clearly about speech on the Internet, we must distinguish between the functions of delivering, hosting, and selecting content, and that we must see each of them from listeners’ point of view. In such a setting, carefully drafted neutrality rules on delivering and hosting can be genuinely speech-facilitating because they promote listeners’ choices. In contrast, most attempts to regulate selection interfere with listeners’ choices. There are a few exceptions—structural separation, interoperability and middleware, restrictions on self-preferencing, and chronological feed options—but all of them are about giving listeners genuine choice among selection intermediaries, or about ensuring loyalty within the intermediary-listener relationship. Beyond that, selection intermediaries should largely be free to select as they see fit, and listeners should largely be free to use them or not, as they see fit.

Seeing the Internet from listeners’ perspective is a radical leap. It requires making claims about the nature of speech and about where power lies online, which can seem counterintuitive if you are coming from the standard speaker-oriented First Amendment tradition. But once you have made that leap, and everything has snapped into focus again, it is impossible to unsee.¹⁶⁰

This is not to say that listeners should always get what they want, any more than speakers should. A democratic self-governance theory of the First Amendment might be acutely concerned that groups of like-minded listeners will wall themselves off inside echo chambers and filter bubbles. This is a powerful argument, and to refute it by appealing to a pure listeners’ choice principle is to beg the question. However, even if a shift to listeners’ perspective cannot resolve the debate between self-governance theories and individual-liberty theories—between collective needs and individual choices—such a shift can still clarify these debates. The fear of echo chambers and filter bubbles is fundamentally a concern about listeners’ choices, not one about speakers’ rights. Focusing on what listeners want, and on the consequences of giving it to them, makes clear what is really at stake. It also sheds light on the tradeoffs involved in adopting one media-policy regime as opposed to another.

Listeners online live in a world where countless chattering speakers vie for their attention using every dishonest and manipulative tactic they can—partisans, fraudsters, advertisers, and spammers of every stripe. Selection intermediaries are listeners’ best, and in some cases their only, line of defense against the cacophony; it can be the only way to tune out the racket and hear what they actually want to hear. Intermediaries have immense power over listeners because of it, but what listeners need is to moderate that power and tip the balance more in their favor, instead of eliminating the intermediaries entirely. Being more protective of platforms’ selection decisions gives us more room to be skeptical of their hosting and delivery decisions; it lets us better distinguish when speakers have legitimate claims against platforms and when they do not.

Listeners are at the center of the First Amendment and more so online than ever before. It is time for First Amendment theory and doctrine to get serious about listeners’ choices among speech on online platforms.

98 S. Cal. L. Rev. 1231

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James Grimmelmann*

* Tessler Family Professor of Digital and Information Law, Cornell Law School and Cornell Tech. I presented an earlier version of this article at The First Amendment and Listener Interests symposium at the University of Southern California on November 8–9, 2024. My thanks to the participants and organizers, and to Aislinn Black, Jane Bambauer, Kat Geddes, Erin Miller, Blake Reid, Benjamin L.W. Sobel, and David Gray Widder. The final published version of this article will be available under a Creative Commons license.

Islands of Algorithmic Integrity: Imagining a Democratic Digital Public Sphere

September 2025September 2025Aziz Z. Huq*

Introduction

A class of digitally mediated online platforms play a growing role as the primary sources of Americans’ knowledge about current events and politics. Prominent examples include Facebook, Instagram, TikTok, and X (which had formerly been known as Twitter). While only eighteen percent of Americans cited social media platforms as their preferred source of news in 2024, this number had risen by a striking six points since 2023.¹ These platforms also compete in “one of the most concentrated markets in the United States,”² as a consequence of network effects and high barriers to entry.³ Current trends suggest that social media will soon outpace traditional news websites as the main source for a plurality of Americans’ understanding of what happens in the world.⁴ Such platforms, which I will call “social platforms” here, are thus in practice a central plank of the political public sphere given their growing role in supplying so many people with news.

The role that social platforms play in public life has sparked a small avalanche of worries even before the extraordinary entanglement of big tech’s corporate leadership with the partisan policy projects of the second Trump administration.⁵ The worries are diverse. Many commentators have aired concerns about the effects of social-platform use on mental health and sexual mores,⁶ or the extent of economic exploitation in this platform-based gig economy.⁷ These important cultural and economic worries are somewhat distinct from worries surrounding the political functions of the digital public sphere. It is the latter’s pathologies, and only those problems, that this essay—as well as the broader symposium on listeners’ rights in which it participates—concentrates on.

Even within the narrower compass of political speech defined in strict and demotic terms, the role of social platforms raises several distinct concerns. I take up three common lines of criticism and concern here. A first line of critique focuses on these platforms’ alleged harmful effects on a broad set of user beliefs and dispositions thought to be needful for democratic life. Social platforms, it is said, pull apart the electorate by feeding them fake news, fostering filter bubbles, and foreclosing dialogue—to the point where democratic dysfunction drives the nation toward a violent precipice. This first argument concerns platforms’ effects on the public at large.

A second common line of argument, by contrast, makes no claim about the median social platform user. It instead focuses on the “radicaliz[ing]” effect of social media engagement on a small handful of users at the ideological margin.⁸ If even these few users resort to violence to advance their views, it might be said that social media has had a deadly effect.⁹ This is an argument not about social platforms’ effects on the mass of users, but upon the behavior of a small tail of participants in the online world.

Yet a third sort of argument against social platforms does not sound in a strictly consequentialist register. It does not lean, that is, on any empirical evidence as to how users are changed by their engagement. Rather, it is a moral argument that picks out objectionable features of the relationship between platforms and their users. This plainly asymmetrical arrangement, it is said, allows invidious manipulation, exploitation, or even a species of domination. Even if users’ behaviors do not change, these characteristics of the platform-user relationship are said to be insalubrious. Especially given the role that algorithmic design plays in shaping users’ online experiences, it is argued, a morally problematic imbalance emerges between ordinary people and the companies that manage social platforms. In the limited case, in which there are few potential sources of information and in which those sources are controlled and even manipulated by their owners (usually men of a certain age who are disdainful of civility and truthfulness norms), an acute concern about domination arises.

If one accepts one of these arguments (and I will try to offer both their best versions and to explore their weaknesses in what follows), then there is some reason to think closely about the way social platforms are governed, and to look for regulatory interventions. Such governance might be supplied by platforms’ own endogenous rules, which are usually embodied in their contractual terms of service or other internal procedures (such as mechanisms to dispute a take-down or deplatforming decision). Alternatively, governance could be supplied by exogenous legislation or regulation promulgated by a state. Private governance and legal regulation, of course, are potential substitutes. They can both be used to achieve the same policy goals. But how? What should such governance efforts, whether private or public, aspire to? And which policy levers are available to achieve it?

Where a platform employs algorithmic tools to shape users’ experience by determining what they see, the range of potential interventions will be especially large. This is a result of the complexity of common computational architectures today. There are many ways to craft the algorithms on which many platforms run.¹⁰ And there are many technical choices about which instruments to use, how to calibrate them, and what parameter (engagement? a subset of engagement?) to optimize. Many of these decision points offer opportunities for unavoidably normative choices about the purpose and intended effects of social platforms. Resolving those choices in turn requires some account of what it means exactly to talk about a normatively desirable social platform: That is, what should a social platform do? And for whom?

Such questions takes on greater weight given (1) recent regulatory moves by American states to control platforms’ content moderation decisions;¹¹ (2) a recent Supreme Court decision responding to those efforts;¹² and (3) the European Union’s Digital Services Act, a statute that takes yet a different and more indirect tack in modulating platform design and its ensuing costs.¹³ Or consider a 2025 U.S. Supreme Court decision, rendered on a tightly expedited schedule, to uphold federal legislation banning TikTok.¹⁴ The decision makes the remarkable suggestion that legislative control over social platforms—exercised by reshaping (or cutting off) the ordinary market from corporate control (for example, by forcing or by restricting a sale)—raises only weak First Amendment concerns. Applied broadly, such an exception from close constitutional scrutiny might allow broad state control over social platforms.

My main aim in this essay is to offer a new and fruitful analytic lens for thinking about these problems as questions of democratic institutional design. This is a way of approaching the problem of institutional design, not a set of prescriptions for how to do such design. I do so by pointing to a model of a desirable platform, and then asking how we can move toward that aspiration, and how much movement might be impeded or even thwarted. My aspirational model is not conjured out of the ether; rather, I take inspiration from an idea found in the scholarly literatures in political science and sociology that evaluates pathways of economic development. The idea upon which I draw is that development policy should aim to seed “islands of integrity” into patrimonial or nepotistic state structures as a way of building foundations for a more robust—and hence public-regarding—state apparatus.¹⁵ This literature focuses on the question of the state’s seeds and nurtures zones (or those of another interested party, such as a private foundation or an international organization) where public-regarding norms, not self-regarding or selfish motives, dominate as a means of generating public goods.

By analogy to the examples of effective public administration discussed in this literature, I will suggest here that we should think about public-regarding platforms as “islands of algorithmic integrity” that advance epistemic and deliberative public goods with due regard to the potential for either exploitation or manipulation inherent in the use of sophisticated computational tools. With that threshold understanding in mind, we should then focus on how to achieve that specific, affirmative model—and not simply on how to avoid narrowly-defined and specific platform-related

harms. An affirmative ideal, that is, provides a baseline against which potential reform proposals can be evaluated.¹⁶

To be very clear up front, this approach has limitations. It draws on the “island of integrity” literature here as a general source for inspiration, instead of a source for models that can be directly transposed. I do not think that there is any mechanical way of taking the lessons of development studies and applying them to the quite different virtual environment of social platforms. To the extent lessons emerge, they are at a high level of abstraction. Still, studies of islands of bureaucratic integrity in the wild can nevertheless offer a useful set of analogies: they point toward the possibility of parallel formations in the online world. They also help us see that there are already significant web-based entities that exemplify certain ideals of algorithmic integrity in practice because they hew to the general lessons falling out of the islands of integrity literature. These studies can illuminate how a more democratically fruitful digital public sphere might begin to be built given our present situation, even if they cannot offer a full blueprint of its ultimate design.

It is worth noting that my analytic approach here rests on an important and controversial assumption. That is, I help myself to the premise that reform of the digital public sphere can proceed first by the cultivation of small-scale sites of healthy democratic engagement and that these can be scaled up. But this assumption may not be feasible. It may instead be necessary to start with a “big bang”: a dramatic and comprehensive sweep of extant arrangements followed by a completely new architecture of digital space. If, for example, you thought that the problem of social platforms began and ended in their concentrated ownership in the hands of a few bad-spirited people, then the creation of new, more democratic platforms would not necessarily lead to a comprehensive solution. Given disagreement about the basic diagnosis of social platforms’ malady, it is hard to know which of these approaches is more sensible. Therefore, there is some value to exploring a piecemeal reform approach of the sort illuminated here. But that does not rule out the thought that a more robust “big bang” approach is in truth needed.

Part I of this essay begins with a brief survey of the main normative (consequentialist and deontic) critiques that are commonly lodged against social platforms, focusing on the three listed above. In Part II, I introduce the “islands of integrity” lens—briefly summarizing relevant sociological and political science literature—as a means to directly think about social platform reforms. My aim in so doing is to provide a litmus test for thinking about social platform reform in the round. With that lens in hand, Part III critically considers the regulatory strategies pursued by the American states and the European Union to date. I suggest some reasons to worry that these are unlikely to advance islands of algorithmic integrity. I close by reflecting on some alternative regulatory tactics that might move us quicker toward that goal.

I. The Case(s) Against Social Platforms

What is a social platform? Do such all platforms work in the same way and raise the same kind of normative objections? Or are objections to platforms better understood as training on a subset of cases or applications? This Part sets some groundwork for answering these questions by defining the object of my inquiries and by offering some technical details about different kinds of platforms. I then taxonomize the three different objections that are commonly lodged against social platforms as they currently operate.

A. Defining Social Platforms and Their Algorithms

A “platform” is “a discrete and dynamic arrangement defined by a particular combination of socio-technical and capitalist business practices.”¹⁷ A subset of platforms are understood by their users as distinctively “social” rather than “commercial” insofar they provide a space for interpersonal interaction, intercalated with other activities such as “reading political news, watching media events, and browsing fashion lines.”¹⁸ The leading “social platforms,” as I shall call them here, are Facebook, X, Instagram, and TikTok.¹⁹

Not all social platforms propagate content in the same way. There are two dominant kinds of system architecture. The first is the social network, where users see posts by other users who they follow (or subscribe to) as well as posts those users chose to amplify.²⁰ When Facebook and Twitter allowed users to reshare or retweet posts, they enabled the emergence of networks of this sort.²¹ Here, what one sees depends on who one “knows.” Interconnected webs of users on a network can experience “information cascades” as information flows rapidly across the system.²² This is known colloquially as “going viral.” The possibility of virality depends not just on platform design but also on users’ behaviors. But, in practice a very small number of posts go viral on social networks.²³ Attention is a scarce commodity. We cannot and do not absorb most of what’s posted online. Our inability to absorb much means that it is only possible for a few items to achieve virality.

The second possible architecture is centered around an algorithm (or, more accurately, algorithms). On platforms of this sort, the stream of data observed by a user is largely shaped by a suite of complex algorithms, which are computational decisional tools that proceed through a series of steps to solve a problem. These algorithms, in the aggregate, are designed with certain goals in mind, such as maximizing the time users spend on the platform.²⁴ TikTok’s “For You Page,” Google Discover, and YouTube all rely at least in part on algorithms.²⁵

In practice, what is for the sake of simplicity called “the algorithm” can be disaggregated into several different design elements, each of which is in truth a distinct algorithm or digital artifact. These include (1) the “surfaces of exposure” (that is, the visual interface encountered by users); (2) a primary ranking model (often a two-stage recommender system that combs through and filters potential posts); (3) peripheral models, which rank content that appears around the main surface of exposure (for example, ads); and (4) auxiliary models (for example, content moderation for illegal materials or posts that violate terms of service).²⁶ For the sake of simplicity, I will refer to them together only as “the algorithm,” but it is worth keeping in mind that this is a simplification, and in fact there are multiple instruments at stake.

Algorithm design implicates many choices. At the top level, for example, an algorithmic model can be braided into a network model or integrated into a subscription-service model.²⁷ At a more granular level, algorithms can be designed to optimize a broad range of varied parameters. These range from “meaningful social interactions” (Facebook’s measure at one point in time) to user’s watch time (YouTube’s measure) to a combination of liking, commenting, and watching frequencies (TikTok’s measure).²⁸ The choice of parameter to optimize is important. Most common parameters quantify some element of users’ engagement with the platform, but they do so in different ways. Engagement measures are relevant from the platforms’ perspectives given their economic reliance on the revenue from advertising displayed to users.²⁹ In theory, more engagement means more advertising revenue. But engagement on social platforms is surprisingly sparse. Somewhere between only one percent and five percent of posts on most social platforms generate any engagement at all.³⁰ And the movement from engagement to advertising is rarer still: most targeted online advertising is simply “ignored.”³¹

B. Consequentialist Critiques of Social Platforms

There are, as I read the literature, three clusters of normative concerns raised by social platforms that merit consideration as the most important and common criticisms made of those technologies.³² Two are consequentialist, in the sense of training on allegedly undesirable effects of social platforms. Of course, such arguments need some means of evaluating downstream effects as either desirable or undesirable. In practice, they rest on some account of democracy as an attractive—even ideal—political order. (Note that as is often the case in legal scholarship, the precise kind of “democracy” at work in these critiques is not always fully specified. This lack of specification is a gap that will prove relevant in the analysis that follows.)³³ The other cluster is deontic, in the sense of picking out intrinsically unattractive qualities of social platforms. These accounts do not rely on a causal claim about the effects of social platforms; they instead assert the prima facie unacceptability of platforms in themselves.

Let’s begin with the two consequentialist arguments and then move on to the deontic critique.

A first view widely held in both the academic and non-academic public spheres is that social platforms cause political dysfunction in a democracy because of their effects on the dispositions and beliefs of the general public.³⁴ Using social platforms, this argument goes, drives (1) a dynamic of “affective polarization” (negative emotional attitudes towards members of opposition parties), or (2) traps us in “echo chambers” or filter bubbles that are characterized by limited, biased information.³⁵ Social media users are also said to be exposed to “fake news,” which are “fabricated information that mimics news media content in form but not in organizational process or intent.”³⁶ High levels of exposure are said to be driven by algorithmic amplification.³⁷ Recent advances in deep-fake-creation tools have further spurred worries about an “information apocalypse” that destroys “public trust in information and the media.”³⁸ Platforms, in this view, foster a world in which citizens lack a shared reservoir of mutual tolerance and factual beliefs about the world. Such deficiencies are said to render meaningful political debate on social platforms challenging—perhaps even impossible. As a result of these changes in peoples’ dispositions, the possibility of democratic life moves out of reach.

These arguments hence assume that democratic life requires the prevalence of certain attitudes and beliefs in order to be durably sustained (an assumption that may or may not be empirically justified). Another way in which these concerns can concretely be understood is to view them in light of the rise of anti-system parties,³⁹ which are characterized by their limited regard for democratic norms. Platforms might facilitate the growth of such anti-system candidates who disrupt or even undermine democratic norms such as broad trust in the state and in co-citizens. Through this indirect path, platforms have a detrimental effect on democracy’s prospects.

There are surprisingly few empirical studies that support the existence of a robust causal connection between social platforms and democratically necessary trust.⁴⁰ Yet some evidence for it can be found in the behaviors and beliefs of significant political actors. President Donald Trump, for example, declared in November 2016 that Facebook and Twitter had “helped him win” the 2016 U.S. presidential election.⁴¹ Since 2020, conservative donors such as the Bradley Impact Fund and the Conservative Partnership Fund have contributed millions to Republican-aligned groups combating effects to “take a tougher line against misinformation online.”⁴² Such significant financial investments by important political actors, beyond merely cheap talk, suggest that social platforms do have predictable partisan effects for candidates and parties that have an arguable anti-systemic orientation.⁴³

On the other hand, well-designed empirical studies have cast doubt on the negative, large-“N” effects of social platforms.⁴⁴ Four studies are illustrative. A first well-designed randomized experiment, which tested the effect of platform deactivation for several weeks before the 2020 election, found no statistically significant effects of platform exposure on affective polarization, issue polarization, or vote choice.⁴⁵ A second random experiment focused on the difference between Facebook’s default algorithms and a reverse-chronological feed. Again, the study found no effect on affective polarization, issue polarization, or political knowledge after switching from a network-driven feed to an algorithmically-driven feed, even though the use of a reverse chronological feed increased the amount of “untrustworthy” content seen.⁴⁶ This null finding from a study of opting into algorithmic content propagation has been replicated in a separate study of YouTube.⁴⁷

Finally, an empirical inquiry into exposure to fake news found only a very small positive effect on the vote share of populist candidates in European elections.⁴⁸ Another study of 1,500 users in each of three countries (France, the United Kingdom, and the United States) identified no correlation between social platform use and more extreme right-wing views; indeed, in the United States, they found a negative correlation.⁴⁹ The authors concluded that their “findings tend to exonerate the Internet generally and social media in particular, at least with respect to right-wing populism.”⁵⁰ Finally, a 2017 study found that President Trump erred when he claimed that Twitter and X helped him in the 2016 election; again, that study found a negative correlation between more extreme right-wing views and social platform usage.⁵¹

Summarizing the available research (including these studies) in a June 2024 issue of Nature, a team of respected scholars concluded that “exposure to misinformation is low as a percentage of people’s information diets” and further “the existence of large algorithmic effects on people’s information diets and attitudes has not yet been established.”⁵² The Nature team warned that the extent to which social platforms undermine political knowledge depends on the availability of other news sources. Where countries “lack reliable mainstream news outlets,” their negative knowledge-related spillovers may be greater.⁵³ I do not pursue that suggestion here, since it invites a bifurcated analysis that separately considers different national jurisdictions, depending on the robustness of their non-digital media ecosystems. What follows should be taken as parochially relevant to North American and European democracies (at least for now) but not the larger world beyond that.

A second view of social platforms’ harms identifies not its spillovers at scale, but rather its effects on certain narrow slices of the population—in particular, those at the tails of the ideological distribution. The intuition here is that engagement with social platforms may not change the dispositions or beliefs of most people, but there is a small subset of individuals who adopt dramatically divergent beliefs (and even behaviors) as consequences of their platform use. “Tail effects” of this sort may not be significant for democratic life under some circumstances, but of particular relevance, there is some evidence of increased support for political violence among Americans.⁵⁴ Extremism at the tails in this context and about this sentiment may have profound consequences. At a moment when President Trump has (twice) faced near-assassination during the 2024 presidential election cycle, and considering how his supporters previously precipitated a deadly confrontation at a 2021 Joint Session of Congress meant to count Electoral College votes, it seems prudent to reckon with the risk that radicalized individuals—even if few in number—may be able to inflict disproportionate harms on institutions that are necessary for core democratic political processes.

This more narrowly gauged claim stands on firmer empirical ground than the critiques of social platforms’ large-“N” effects discussed above. A 2024 study of fake news’ circulation on Twitter found that 0.3 percent of users account for four-fifths of its fake news volume.⁵⁵ These “supersharers,” who tended to be older, female, and Republican, in turn reached a “sizable 5.2% of registered voters on the platform.”⁵⁶ Note that this is not necessarily the population one would expect to engage in political violence. A different study published around the same time also found “asymmetric . . . political news segregation” with “far more homogenously conservative domains and URLs circulating on Facebook” and “a far larger share” of fake news on the political right.⁵⁷

Such findings are consistent with wider-angle studies of partisan polarization, which find different microfoundations on the political left and right.⁵⁸ The Nature team mentioned above hence concluded that exposure to misinformation is “concentrated among a small minority.”⁵⁹ Those who consume false or otherwise potentially harmful content are already attuned to such information and actively seek such content out.⁶⁰ Platforms, however, do not release “tail exposure metrics” that could help quantify the risk of harm from such online interactions.⁶¹ As a result, it is hard to know how serious the problem may be.

What of the concern that social platforms conduce to “filter bubbles” that constrain the range of information sources users can access in problematic ways?⁶² Once again, the evidence is at best inconclusive. A 2016 study found that social homogeneity of users predicted the emergence of echo chambers characterized by asymmetrical patterns of news sharing.⁶³ At the same time, the study offered no empirical evidence about the extent or effects of filter bubbles “in the wild,” so to speak. A 2021 review identified divergent results in studies surveying human users of social platforms or digital trace data; yet, it identified only a handful of studies substantiating the concern.⁶⁴ A 2022 meta-study found that “most people have relatively diverse media diets,” and only “small minorities, often only a few percent, exclusively get news from partisan sources.”⁶⁵ Again, the empirical foundations of the normative worry here seem shaky.

Even if the evidence of filter bubbles existing was more robust, filter bubbles’ substantiated existence would not necessarily be cause for concern. Concern about filter bubbles focuses on the asymmetric character of the information voters consume; this then assumes that there is a counterfactual condition under which the voter might receive a “balanced” diet of information. But what does it mean to say that a person’s news inputs are balanced or symmetrical? Does it require equal shares of data that support Republican and Democratic talking points? What if one of those parties is more likely than the other to lean on false empirical claims? Should a balanced informational diet reflect or discount for such a lean? How are the problems of misinformation or distorted information to be addressed? Is it part of a balanced informational diet to receive a certain amount of “fake news”? These questions admit of no easy answers. Rather, they suggest that the concern with filter bubbles trades on a notion of balance that is hard to cash out in practice without difficult anterior ideological and political choices.

In brief, the available empirics suggest that consequentialist critiques of social platforms are better focused on tail effects instead of the way platform engagement changes the median user or the mass of users. It is also worth underscoring a point that is somewhat obscured by the bottom-line results of these studies but implicit in what I have just set out. That is, the tail effects of social platforms arise from a complex and unpredictable mesh of interactions between technical design decisions and users’ decisions. The external political environment hence shapes platforms’ spillover effects, and when that environment is more polarized and more prone to panics or even violence, it seems likely that the tail risks of social platforms would correspondingly rise. When, by contrast, there are a plethora of reliable non-digital sources which are accurate and easily accessible, the threat to democratic life from social platforms may well be far less acute.

C. Deontic Critiques of Social Platforms

Critiques of social platforms do not need to rest on evidence of their consequences. It is also possible to pick out features of the relationship between platforms and users as morally problematic even in the absence of any harm arising. Two particular strands of such “deontic” critique can be traced in existing literature.

First, social platforms (among other entities) gather data about their users and then use that data to target advertisements to those same users. For many, this circular pattern of data extraction and deployment constitutes a morally problematic exploitation. Such exploitation occurs when “one party to an ostensibly voluntary agreement intentionally takes advantage of a relevant and significant asymmetry of knowledge, power, or resources” to offer otherwise unacceptable contracting terms.⁶⁶

Shoshana Zuboff, who is perhaps the leading expositor of this view, argues that platforms have “scraped, torn, and taken for another century’s market project” the very stuff of “human nature.”⁶⁷ She condemns the “rendition” and “dispossession of human experience” through “datafication.”⁶⁸ Zuboff’s critique of platform exploitation is nested in a broader set of concerns about the presently hegemonic form of “informational” or “financial” capitalism. Reviewing Zuboff’s book, Amy Kapczynski thus asserts that “informational capitalism brings a threat not merely to our individual subjectivities but to our ability to self-govern.”⁶⁹ Similarly, danah boyd characterizes private firms’ use of digital power as a malign manifestation of “late-stage capitalism . . . driven by financialization.”⁷⁰ And as Katharina Pistor puts it, “[t]he real threat that emanates from Big Tech using big data is not just market dominance . . . [but] the power to transform free contracting and markets into a controlled space that gives a huge advantage to sellers over buyers.”⁷¹ The structure of financial or quasi-financial transactions on social platforms, in this view, conduces systemically to users’ exploitation.

In an earlier piece, I have expressed sharp skepticism elsewhere about the empirical and normative arguments offered by Zuboff and Kapczynski.⁷² Their concerns about exploitation seem to trade on imprecise and potentially misleading analogies to more familiar and normatively troubling forms of economic exploitation, despite meaningful differences in structure and immediate effect. Indeed, both analogies fail to take those differences seriously. More generally, their arguments borrow a suite of concerns associated with the larger structures of economic life labeled “neoliberalism,” which have developed since the 1970s. Such critiques of neoliberalism, however, concern aspects of economic life that have little to do with social platforms (for example, deregulation and financialization). One can have neoliberalism with or without social platforms. I see little analytic gain in combining these very different lines of argument respecting quite distinct targets, and I see no reason to invite confusion by mushing together distinct phenomena to achieve guilt-by-association more generally.

Second, concern about exploitation overlaps with a distinct worry about non-domination. Claire Benn and Seth Lazar capture this possibility in their argument that social platforms might compromise an intrinsic, non-instrumental “value of living in societies that are free and equal.”⁷³ They argue that the public is necessarily ignorant about the “tech companies’ control of the means of prediction” and so have “no viable way of legitimating these new power relations.”⁷⁴ But the empirical premise of this argument—widespread public ignorance about predictive tools—seems shaky: As the empirical studies of fake news and political distortion show, there is publicly available knowledge about many salient effects of social platforms. To the extent that the public misconstrues those effects, Benn and Lazar’s argument likely overestimates their magnitude.⁷⁵ I hardly think these critiques are secret.

Still, I think Benn and Lazar are on to something useful when they identify the fact of corporate control as a morally salient one. Social platforms stand in an asymmetrical relation to the general public because of (1) knowledge asymmetries enabled by the corporate form; (2) collective action problems implicit in the one-to-many relation of firms to consumers; and (3) ideological effects (for example, false beliefs in the necessity of unregulated digital markets for economic growth). As a consequence of these dynamics, social platforms exercise a certain kind of unilateral power over the public. Such power might be especially worrying if it is concentrated in the hands of a limited number of people—and if these people have close connections to those in high state office (with the Musk/Trump relationship offering an obvious, highly salient example). This slate of worries comes sharply into play whenever platforms comprise an important part of the democratic public sphere. Under these conditions, Benn and Lazar point out that platforms ought not to merely prevent negative consequences for democratic politics; they must also ensure “that content promotion is regulated by epistemic ideals.”⁷⁶ This entails, in their view, a measure of “epistemic paternalism.”⁷⁷ It rests on platforms’ unilateral, and effectively unconstrained, judgments about interface and algorithmic design.

This deontic argument can also be stated in the terms of Philip Pettit’s influential theory of republican freedom. On Pettit’s account, an individual wields dominating power over another if the former has the capacity to interfere in certain choices of the latter on an arbitrary basis.⁷⁸ Pettit asserts that this arbitrariness condition is satisfied if an agent’s actions are subject only to the arbitrium—the will or judgment—of the agent, and when the interfering agent is not “forced to track the interests and ideas of the person suffering the interference.”⁷⁹ For example, a person ranked by law as a slave is just as unfree even if their master always acts with their interests in mind. Even when an arbitrary legal relationship is exercised in a beneficent fashion with the interest of the weaker party in mind, Pettit suggests that there is a displacement of the subject’s “involvement, leaving [them] subject to relatively predictable and perhaps even beneficial forms of power that nevertheless ‘stifle’ and ‘stultify.’ ”⁸⁰

Yasmin Dawood has fruitfully deployed Pettit’s framework for thinking about the abuse of public power in democratic contexts.⁸¹ Her conceptual framing, moreover, could be extended to private actors such as social platforms without too much difficulty. For instance, one might view the exercise of extensive control over the informational environment online as a species of domination, whether or not it was exercised in a malign or a paternalistic direction. That idea might be rendered more precise by drawing on work by Moritz Hardt, Meena Jagadeesan, and Celestine Mendler-Dünner that defines the “performative power” of an algorithmic instrument in terms of “how much participants change in response to actions by the platform, such as updating a predictive model” as a numerical parameter.⁸² This concept of “performative power” usefully captures the way that platforms “steer” populations.⁸³ As such, it offers a way of understanding and measuring “domination” in social platforms more precisely.

In setting out these two kinds of deontic critiques of social platforms, I thus suggest that there are plausible grounds for worry about social platforms, even absent robust empirical findings of spillovers onto users’ beliefs and dispositions. I recognize that both the exploitation and the domination critiques rest on further moral premises, which I have neither spelled out in full nor tried to substantiate. But I spell out both deontic arguments here to show readers the minimally plausible non-consequentialist grounds for concern about the structure and operation of social platforms and to allow readers to make their own judgments.

D. Making a Better Case Against Social Platforms

Social platforms have become scapegoats of sorts for many of the ills that democratic polities are now experiencing. But the available evidence suggests that many of these critiques miss the mark. For many people, platforms simply do not play a very large or dominant epistemic role (although this may well change in the near future). They also seem not to have the polarizing and epistemically distorting effects many bemoan.

That is not to say, however, that there is no reason for concern. Consequentialist worries about the behavior of users on the tails of the ideological distribution, as well as deontic worries about exploitation or domination, point toward the need for reforming measures. Of course, these arguments might not all point in the same direction in terms of practical change. But reforms that render platforms more responsive and responsible to epistemically grounded truths and the interests of all their users (as well as interests of the general public at large) are plausibly understood to respond to all the salient critiques discussed above.

II. Islands of Integrity—Real and Digital Examples

One way of thinking about how existing social platforms might be reformed is to identify an aspirational end-state, or a model, of how they might ideally work. With an understanding of the best version of a social platform in view, it may be easier to evaluate extant reform strategies and to propose new ones. This inquiry might proceed at the retail level—focusing on what an “ideal” or a “better” platform might look like—or at a general level—asking how the digital ecosystem overall should be designed. With the first of these paths in mind, I introduce in this Part a conceptual framework for thinking about “islands of integrity” developed in the sociological and political science studies of development. While that literature has not yielded any simple or single formula for reaching that aspiration, it still offers a useful lens for starting to think about well-functioning social platforms. Or so I hope to show in what follows.

A. Building Islands of Integrity in the Real World

In recent decades, concern about the legality and the quality of governance has shaped the agenda of international development bodies such as the World Bank.⁸⁴ One of the strategies identified to enhance the quality of public administration centers the idea of “islands of integrity” or “pockets of effectiveness” in sociopolitical environments that are “otherwise dominated by patrimonialism, corruption, and bureaucratic dysfunction.”⁸⁵ An island of integrity has been defined as an entity or unit (generally of government) that is “reasonably effective in carrying out [its] functions and in serving some conception of the public good, despite operating in an environment in which most agencies are ineffective and subject to serious predation . . . .”⁸⁶ The normative intuition is that it is possible to seed islands of integrity, despite pervasive corruption, as a starting point for more large-scale reforms.

There are by now a wide variety of case studies on islands of integrity. Monica Prasad, for example, points to the recently stood-up Indian Institutes of Technology (“IITs”), an archipelago of meritocratic technology-focused colleges across the subcontinent, as an instance where an educational mission is successfully pursued against “a context of patrimonialism and corruption.”⁸⁷ IITs’ mission is preserved and protected from distortion through the use of selection strategies of “meritocratic decoupling” that sort both students and teachers based on academic merit, alongside efforts to show how the institution benefited those who were excluded.⁸⁸

In a different case study, Eliška Drápalová and Fabrizio Di Mascio identify a pair of municipalities in Spain as “islands of integrity.”⁸⁹ They contend that the key move in creating them was the fashioning of a “fiduciary relationship between mayors and city managers,” which allowed for the development of a bureaucratic structure shaped by professional (rather than patrimonial) norms.⁹⁰ City managers, they find, offer “accountability and responsiveness” to elected leaders without compromising the integrity of service-oriented institutions.⁹¹ Similarly, Michael Roll maps the emergence in Nigeria of well-run agencies managing food and drug regulation on the one hand, and human trafficking on the other, to demonstrate that islands of integrity can emerge even under very difficult circumstances given the right leadership.⁹²

Most, but not all, of these case studies on islands of integrity concern real-world public administration, often at a local level.⁹³ The generalizations drawn by the literature are concededly fragile: The heterogeneity of cultural, political, and institutional context makes inference instable, at least at a useful level of granularity.⁹⁴ Still, a couple of regularities do tentatively emerge from a review of the available case studies in the development literature.

Crudely stated, the “islands of integrity” literature underscores the importance of institutional means and leadership motives for resisting patrimonial or corrupt political cultures. First, an island of integrity needs to internalize control over its own workings in order to “create a culture of meritocracy and commitment to the organization’s mission.”⁹⁵ Underpinning this culture, it seems, must be a clear understanding of the public goods that the agency or body is supposed to produce. The truism that leadership is key seems to hold particularly strongly.⁹⁶ Autonomy over personnel choice is also crucial in order to maintain that culture.⁹⁷

Second, there is a consistent institutional need for the creation of tools to resist demands from powerful external actors who try to capture a body for their immediate political or economic gains, which are unrelated to the public-regarding goals of the institution.⁹⁸ Tools by which to mitigate such threats to institutional autonomy vary. Indian universities, Prasad found, tout the local jobs they create in cleaning and maintenance—even as they maintain the separation of student and faculty selection from local pressures—as a way of deflecting local politicos.⁹⁹ Spanish city managers, Drápalová and Di Mascio explain, promise improvements in top-line municipal services to mayors who threaten their autonomy.¹⁰⁰ In effect, reform is purchased in both cases by strategic payoffs to those who threaten its progress.

Just as it is important to work out how to build public-regarding institutional spaces in the real world, so too is it important to identify how to create such spaces in the virtual, digitally mediated world. Just as the bodies in India, Spain, and Nigeria need to have motive and means to keep the corroding forces of public sphere at bay, so too does a social platform that strives to be an island of integrity need leadership, internal culture, and means to create a non-exploitative, non-dominating structure while managing tail risk better than existing platforms. Taken as metaphor, therefore, “islands of integrity” offer a template for the desirable end goal of social platform reform as well as some modest clues about how to get there. Still, it is important not to make too much of this metaphor. The claim that the “islands of integrity” literature can be an inspiration for social platform reform is, at bottom, an argument from analogy, and one that needs to be tested carefully through the application of that analogy.

B. Digital Islands of Integrity: Two Examples

The aforementioned analogy gains force when one realizes that there are already examples of digital islands of integrity online. The two most prominent examples are Wikipedia and the British Broadcasting Company (“BBC”). To be clear, neither is a quintessential social platform as I have used that term here. Nor do they operate at the same scale as X or Instagram. But I offer a brief discussion of both by way of proof of concept.

Wikipedia emerged from the wreckage of an attempted for-profit online encyclopedia called Nupedia.¹⁰¹ The latter’s assets (for example, domain names, copyrights, and servers) were subsequently placed in an independent, charitable organization, the Wikimedia Foundation (“WMF”).¹⁰² At first, corporate governance “emerged” organically from the efforts of those building the site, rather than being imposed from above.¹⁰³ A group of founders then “transformed their charismatic community into a bureaucratic structure” in which “power was diffused and distributed” across “a sprawling bureaucracy with a wide range of formal positions” in response to the perceived mission-related needs of the organization.¹⁰⁴ The organization’s trajectory has also been characterized by moments of greater centralization. For example, in the early 2010s, Wikipedia’s CEO led an effort to be “more inclusive and more open,” somewhat to the chagrin of the then-contributors.¹⁰⁵ That is, Wikipedia’s governance history centers on a choice of corporate form that insulates leadership from external profit-related pressures, a selection of strong leadership, and an exercise of leadership to broaden and empower the organization’s constituencies (potentially mitigating criticism of the organization) to generate a certain kind of “corporate culture.”¹⁰⁶

Even more directly relevant is the web presence of the BBC. The BBC produces thousands of new pieces of content each day for dissemination over a range of sites, such as BBC News, BBC Sport, BBC Sounds, BBC iPlayer, and World Service.¹⁰⁷ The corporation’s charter defines its mission as serving all audiences by providing “impartial, high-quality and distinctive output and services which inform, educate and entertain.”¹⁰⁸ Like Wikipedia, the BBC is organized into a corporate form that is relatively impermeable by law to commercial pressures. To advance its charter goals, the BBC uses machine-learning recommender algorithms created by multi-disciplinary teams of data scientists, editors, and product managers.¹⁰⁹ Once a recommender system has been built,¹¹⁰ editorial staff can offer “continuous feedback” on the design and operation of recommendatory systems to identify legal compliance questions and to ensure “BBC values” are advanced.¹¹¹

Available accounts of this process—while perhaps a touch self-serving because they are written by insiders—suggest that the organization strives to cultivate a distinctive cultural identity. It then leverages that identity as a means of advancing its values via algorithmic design. Specifically, an important part of this recommender design process focuses on empowering users to make their own choices and to avoid undesirable (from the service’s perspective) behaviors. The BBC’s recommender tools are designed to permit personalization, albeit only to the extent that doing so can “coexist with the BBC’s mission and public service purposes.”¹¹² An insider informant speaking anonymously reported that the BBC understands itself as “as ‘morally obliged’ to provide their users with the possibility of tweaking their recommendations.”¹¹³ In the same study, the employee of an unnamed European public broadcaster that managed a recommender system reported that their system proactively identified “users who consume narrow and one-sided media content and recommend[ed to] them more diverse content.”¹¹⁴ That is, the system was designed to anticipate and mitigate, to an extent, the possibility of extremism at the tails of the user distribution, while also preserving users’ influence over the content of their feeds. This is in stark contrast to systems that are designed to maximize engagement under conditions in which predictability entails driving users to more extreme (and even dangerous) content.

I do not want to strain the parallels between the “islands of integrity” literature and these digital examples too much. Both of the latter, nevertheless, point to ways in which the means and the motives to sustain an “island of integrity” can be imagined in an online world. Both services are, for example, explicitly oriented toward a public service mission in terms of leadership. They both also opted for corporate forms that allow for some protection against potentially compromising market forces. Both have systems in place to preserve and transit a valued internal culture, while buffering themselves somewhat against the risks of distorting external or internal pressure. Finally, both seem to have successfully cultivated persisting cultures of service to public-service goals by hard-wiring their cultures into bureaucratic structures or, alternatively, algorithmic designs.

III. The Governance of Social Platforms: Aspiring to Build Islands of Algorithmic Integrity

With the general idea of “islands of integrity” in hand, along with the specific proofs of concept described in Section II.B, it is possible to ask how certain social platforms might be reformed with an ideal of islands of algorithmic integrity in mind. That is, how might we move toward alternative platform designs and operations that address the normative concerns outlined in Part II? What kind of private governance might be imagined that mitigates exploitation and domination concerns, while addressing the tail risk of extremism as best as we can? Could legal regulation play a role? Again, it would be a mistake to frame these questions as mechanical applications of the “islands of integrity” literature. It is better to think of them as falling out of the same institutional design goal.

I approach this inquiry in two stages. I first begin by critiquing leading regulatory strategies observed in the American states and the European Union from an “islands-of-algorithmic-integrity” standpoint. At bottom, these critiques draw out ways in which those regulatory strategies take social platforms as potential sources of harm, largely without an account of the positive role platforms could play. Second, I draw together a number of possible tactics for public or private actors to help build islands of algorithmic integrity. My positive accounting here is concededly incomplete. My hope, however, is that this effort serves as initial evidence of the fruitfulness of an approach oriented toward the aspiration of islands of algorithmic integrity.

A. The Limits of Existing Platform Regulation Regimes

Since 2020, social platforms have become an object of regulatory attention on both sides of the Atlantic. Three main regulatory strategies can be observed. These take the form of new state regulations purportedly targeting “censorship,”¹¹⁵ fresh efforts to extend common law tort liabilities to social platforms, and a risk-based regulatory regime that has been promulgated by the European Union. Broadly speaking, all such legal intervention is premised on concern about platforms’ society-wide effects on listeners, although deontic concerns may play a role too. The tools seized for those tasks, however, have been inadequate. Their shortfall can be traced to the way in which they focus exclusively on platform harms (missing the importance of benefits), misconstrue those harms, and then fail to incentivize the formation of platforms with the means and the motive to mitigate documented harms while resisting exploitation or domination.

Regulating Ex Ante for Harms

The 2022 Digital Services Act (“DSA”) offers a first model of ex ante platform regulation. In important part, it trains on the potential for harms by recommender systems without any account of their positive effects. It contains a suite of new legal obligations: Article 25, for example, prohibits any digital platform design that “deceives or manipulates the recipients of their service or in a way that otherwise materially distorts or impairs the ability of the recipients of their service to make free and informed decisions.”¹¹⁶ Article 38 provides a right to opt out of non-personalized algorithms.¹¹⁷ Articles 14 and 26 set out some disclosure obligations on certain companies.¹¹⁸ Most importantly, for present purposes, Article 34 of the DSA requires “very large online platforms and . . . online search engines” to conduct an annual assessment of any systemic risks stemming from the design or functioning of their service, including negative effects on civic discourse, electoral processes, or fundamental rights.¹¹⁹

At first blush, the DSA seems oriented toward the creation of islands of algorithmic integrity. But there are reasons for being skeptical of conceptualizing the project this way. To begin with, the Article 38 opt-out is unlikely to be exercised by those “supersharers” at the tails of the ideological distribution who are most responsible for the diffusion of fake news.¹²⁰ Self-help remedies never avail those already fixated on harming themselves and others. Moreover, Article 34 risk assessments impose no clear affirmative command to build epistemically robust speech environments.¹²¹ In effect, the act offers no clear account of how social platforms could or should enable democratic life. Even more problematic, the DSA ultimately leans on platforms themselves to accurately document and remedy their own flaws. It does not seem excessively cynical to predict that profit-oriented companies will not be falling over themselves to flag the negative externalities of their own products in publicly available documents and flagellate themselves over how to remedy them. The DSA, in short, is promising as theory. But it may fall substantially short in practice.

Regulating Ex Ante for Balance

Both Florida and Texas have enacted statutes intended to limit platforms’ abilities to “deplatform” a person because of their violation of terms of service.¹²² The Florida statute, for example, prohibits platforms from “willfully deplatform[ing] a candidate for office who is known by the social media platform to be a candidate, beginning on the date of qualification and ending on the date of the election or the date the candidate ceases to be a candidate.”¹²³ In its July 2024 decision in Moody v. NetChoice, the U.S. Supreme Court cast doubt on the constitutionality of such measures.¹²⁴ While litigation is ongoing as this essay goes to press, it seems likely that the deplatforming elements of both statutes will not survive.

Relying on familiar doctrinal tools from the First Amendment toolkit, a majority of the Moody Court reached two conclusions that are relevant here. First, Justice Elena Kagan’s majority opinion explained that when an entity “provide[s] a forum for someone else’s views” and is thereby “engaged in its own expressive activity, which the mandated access would alter or disrupt,” a First Amendment interest is implicated.¹²⁵ Second, the Court held that the government has no constitutionally cognizable interest “in improving, or better balancing, the marketplace of ideas.”¹²⁶ This anti-distortion argument is familiar from the campaign finance context.¹²⁷ There, however, the argument is deployed generally by conservative justices to resist governmental efforts to advance an equality interest in political speech given its “dangerous[] and unacceptable” effects.¹²⁸ In the Florida and Texas cases, by contrast, the argument was listed against efforts by Republican state governments to enforce their understanding of balance on the platform-based speech. Such ideological valence thus flipped from campaign finance to platform regulation.

Independent of these familiar constitutional logics, there are more empirically grounded reasons to conclude that Florida’s and Texas’s efforts to mitigate platforms’ curatorial capacity are likely to undermine, rather than promote, the emergence of islands of algorithmic integrity. These reasons run parallel to Justice Kagan’s reasoning, but are distinctive in character.

The first reason is banal and empirical. The available research suggests that conservative voices in the United States are asymmetrically responsible for the dissemination of fake news.¹²⁹ To the extent that Florida and Texas leaned on a conception of “balance” in the speech environment, they did so by culpably ignoring the platforms’ interest in a generally reliable and trustworthy news environment. Enforcement of the Florida and Texas laws, to the contrary, seems likely to lead (all else being equal) to a decline in the quality of those platforms. That is to say, by a sort of Gresham’s law for political speech, the increasing proportion of misleading speech on a platform will tend to drive out those concerned with truthfulness. Such an effect creates a vicious circle of sorts, one that is absent from the campaign finance context.

This argument might be supplemented by a further observation. As I show below, there are a number of fairly obvious affirmative measures that private and public actors can take if they are truly concerned with the creation of islands of algorithmic integrity.¹³⁰ If we see a government failing to take these needful steps while affirmatively adopting counterproductive measures, there is some reason to doubt the integrity of its claim to be acting in the public interest. The islands of algorithmic integrity frame can be put to work here as a lens through which one may understand the gap between a state’s professed interests and its actual ambitions.¹³¹ If, as Justice Kagan once suggested in her academic role, the First Amendment doctrine is best understood as “a series of tools to flush out illicit motives and to invalidate actions infected with them” and a “kind of motive-hunting,”¹³² then the failure to pick low-hanging fruit while making elaborated and far-fetched claims about one’s integrity-related aims is a telling one. To the extent that it identifies some of those low-hanging fruit, the islands of algorithmic integrity grafts on comfortably to advance those goals.

A second reason to be skeptical of measures such as Florida’s and Texas’s is conceptual in character: balance-promoting measures of their ilk help themselves to the assumption that there is a neutral baseline that has been disturbed by a platform’s algorithm. But “the most common choice of baseline fundamentally depends on the state of some components of the system,” and assumes away the effect of past bias and amplification.¹³³ Accordingly, the Florida and Texas laws’ presupposition of a neutral baseline of undistorted speech is misplaced; it is better to instead focus on the structural qualities associated with islands of integrity. Where a government asserts an interest in “neutrality” or “fairness” in the context of social platforms, its arguments should be viewed as pro tanto dubious since it is striving to return to a status quo that, for technological reasons, is imaginary. A version of this baseline difficulty arises in the campaign finance context, albeit for different reasons.¹³⁴ It also lacks the sociotechnical foundation that is present in the platform context.

Tort Liability for Harmful Algorithmic Design

The Texas and Florida statutes impose ex ante controls on social platforms. An alternative regulatory strategy when it comes to platforms involves the ex poste use of tort liability to incentivize “better” (by some metric) behavior. Platforms benefit from a form of intermediate immunity from tort liability under Section 230 of the Communications Decency Act.¹³⁵ Section 230 immunity is likely wider than the immunity from liability available under the First Amendment,¹³⁶ although the scope of constitutionally permissible tort liability remains incompletely defined.¹³⁷

Recent lawsuits have tried to pierce Section 230 immunity from various angles. Some have tried to exploit federal statutory liability for aiding and abetting political violence.¹³⁸ Others lean on common law tort theories, but contend that Section 230 does not extend to suits that turn on platforms’ use of algorithmic controls to sequence and filter content. For example, in an August 2024 decision, a panel of the Third Circuit reversed a district court’s dismissal of a common law tort complaint against TikTok for its promotion of content that played a role in the death of a minor.¹³⁹ The circuit court held that Section 230 did not extend to a claim that TikTok’s “algorithm was defectively designed because it ‘recommended’ and ‘promoted’ the Blackout Challenge.”¹⁴⁰ The Blackout Challenge, said the panel, was “TikTok’s own expressive activity,” and as such fell outside Section 230’s scope.¹⁴¹ This construction of Section 230 has been severely criticized.¹⁴² Thus, it is far from clear how this ruling can be squared with the seemingly unambiguous Section 230 command that no platform can “be treated as the publisher or speaker of any information provided by another information content provider.”¹⁴³

Reflection on the prospect of tort liability that is delimited in this fashion and consistent with Section 230 (especially with the idea of “islands of algorithmic integrity” in mind) offers some further reasons for skepticism of the Third Circuit’s decision and the consequences of tort liability for algorithmic design more generally. For it is far from clear how algorithmic-design-based liability of the sort that the Third Circuit embraced can be cabined. Every algorithmic decision changes the overall mix of content on the platform. So, it is always the case that such decisions in some sense “cause” the appearance of objectionable content.¹⁴⁴ Indeed, one could argue that any mechanism imposed to limit one sort of harmful speech necessarily increases the likelihood that other sorts of speech (including other sorts of harmful speech) will feature prominently on the platform. For example, a decision to filter out speech endorsing political violence is (all else being equal) going to increase the volume of speech that is likely conducive to adolescent mental health problems. In this way, the Third Circuit’s decision (at least as written) has the practical effect of carving out all algorithmic content-moderation activity from Section 230’s scope. It is hard to imagine this concurs with Congress’s enacting intent.

Indeed, tort liability for algorithmic decision will inevitably push platforms to rely more on networks, rather than algorithms, as drivers of content. But the empirical evidence suggests that network-based platform designs are more, not less, likely to experience higher levels of fake news, and that they are less amenable to technical fixes.¹⁴⁵ Tort liability, at least as understood by the Third Circuit in the TikTok case, therefore pushes platforms away from socially desirable equilibria. Paradoxically, all else being equal, it is likely to increase, and not decrease, the volume of deeply troublesome material on platforms of the sort at issue in the Third Circuit TikTok case. More generally, it is again hard to see how liability for algorithmic design decisions, all else being equal, is socially desirable.

B. The Possible Vectors of Algorithmic Integrity

The fact that state and national governments opt for partial or unwise regulatory strategies does not mean that are no promising paths forward. To the contrary, the examples examined in Part II suggest a range of useful reforms. I outline three here briefly.

To begin with, the examples of Wikipedia and the BBC suggest that it may be possible to build at least small-scale islands of algorithmic integrity either in the private or the public sector. Those examples further suggest that whether state or private in character, such an island needs mechanisms to shield itself from the pressure to maximize profits. An entity that is exposed to the market for corporate control is unlikely to be able to resist commercial pressures for long.

Corporate form hence matters. For example, social platforms’ incentive to maximize engagement, and hence maximize advertising revenue, has been “critical” to driving the dissemination of radicalizing and hateful speech.¹⁴⁶ The transformation of Twitter to X after its purchase by Elon Musk, and the subsequent degradation and coarsening of discourse on the platform, offer an abject lesson in the perils of the unfettered free market for islands of algorithmic integrity.¹⁴⁷ The market for corporate control, which is often glossed over in light of the efficient capital markets hypothesis, is commonly viewed as an unproblematic good.

One of the main lessons of the islands of integrity literature, however, is the need for well-motivated leadership of the sort that has been described at Wikipedia and the BBC. It is hard to see how such motivation survives under the shadow of potential corporate takeover.

Second, islands of integrity require the right means (or tools), as well as the right motive. The use of algorithmic tools to curate a platform creates means in a way that reliance on network effects does not. It is thus a mistake to assume, as the Third Circuit seems to have done in the TikTok case, that an algorithmically managed platform is worse than a network based one. As Part I illustrated, the empirical evidence suggests that algorithmically managed platforms are generally not more polluted by misinformation than ones driven by users’ networks.¹⁴⁸ Quite the contrary.

Moreover, a social platform built around an algorithm may have tools to improve its epistemic environment that a network-based platform lacks. For instance, a 2023 study found that certain “algorithmic deamplification” interventions had the potential to “reduce[] engagement with misinformation by more than [fifty] percent.”¹⁴⁹ Another example of an instrument for epistemic integrity is, somewhat surprisingly, a feature of Facebook’s algorithm, which has baked in a preference for friends-and-family content that “appears to be an explicit attempt to fight the logic of engagement optimization.”¹⁵⁰

Third, there is a range of tailored reforms that precisely target ways in which social platforms stand in asymmetrical relations of exploitation and dominance to their users. As a very general first step, Luca Belli and Marlena Wisniak have proposed the use of “nutrition labels,” detailing key parameters of platform operation as a way of enabling better informed consumer choice between platforms.¹⁵¹ This kind of notice-based strategy, while plausible to implement, assumes a measure of user choice over which platform to use. At present, such choice is largely illusory because of the market dominance of a small number of platforms.¹⁵² It is also hard to see how consumers, particularly those already at the ideological margin, could be persuaded to make the right kind of choice. Inducing more competition, and hence more consumer choices, in social platforms would give notice-oriented measures more bite. Some work has been done on potential varieties of platform design,¹⁵³ but there remains ample room for inquiry and improvement. The basic point, though, is that some combination of increased competition and better consumer-facing notices would better allow certain users to select among different social platforms based on their own preferences—although it is hard to be confident that the right users, so to speak, will be those aided.

There are also steps that can be taken by a well-motivated platform manager. Within a platform, for example, the BBC’s strategy of promoting personalization could be adopted and redeployed in a number of ways. For instance, bots, or “user-taught” agents could be supplied to help individual users curate the shape of their feeds over time.¹⁵⁴ These bots, however, might be constrained by the understanding of the platform’s mission, which excluded normatively troublesome activity characterizing the tails of the ideological distribution.

Finally, another way of mitigating exploitation concerns focuses on advertisers rather than users. Firms advertising on platforms are often unaware their products or services are marketed next to fake news, despite having an aversion to that arrangement.¹⁵⁵ They lack, however, information on when and how this occurs. Increased disclosure by platforms on “whether . . . advertisements appear on misinformation outlets,” as well as increased “transparency for consumers about which companies advertise” there, provides the potential to stimulate a collective shift to a more truthful equilibrium.¹⁵⁶ Such disclosures help ensure that “the means of ensuring legibility [will not completely] fade into the background of the ordinary patterns of our li[ves],”¹⁵⁷ as platform affordances become too banal to notice. Such disclosures, finally, might be mandated by law, potentially as a means of mitigating fraud concerns related to platform use.

Conclusion

In this essay, I have tried to offer an affirmative vision of social platform governance in the long run, or at least the seeds of such a vision. No doubt this vision is leagues away from the grubby, venal, and hateful reality of social platforms now. It is, indeed, a stark contrast to those extant realities. But one of the functions of scholarship is to generate plausible pathways away from a suboptimal institutional status quo. The articulation of alternatives is itself of value.

As I have suggested, drawing on sociological and political science literature on islands of integrity in public administration allows us to see some of the limits of existing regulatory strategies with respect to social platforms. Doing so opens up new opportunities for improved public and private governance. Of course, the model of islands of integrity in a public administrative context cannot be mechanically transposed over to the platform context. But by offering us a new North Star for reforming governance efforts, I hope it can advance our understanding of how to build platforms fit for our complex, yet (perhaps still) fragile democratic moment.

98 S. Cal. L. Rev. 1287

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Aziz Z. Huq*

* Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School, and associate professor, Department of Sociology. Thanks to Erin Miller for extensive and illuminating comments, and to participants in the symposium—in particular Yasmin Dawood—for terrific questions and conversation. The editors of the Southern California Law Review, in particular Michelle Solarczyk and Tyler Young, did exemplary work in making this essay better. The Frank J. Cicero Foundation provided support for this work.

In the Name of Accountability

September 2025September 2025Heidi Kitrosser*

Introduction

The Supreme Court has increasingly embraced legal doctrines that empower elected officials to hide politically inconvenient information and ideas from the American people. Two lines of precedent illuminate this phenomenon and its reach across seemingly disparate areas of the case law. The first is a development in First Amendment law known as government speech doctrine and the closely related rule that public employees receive no First Amendment protection for their work product speech—that is, for anything that they write or say while doing their jobs. This precedent puts at risk the ability of public employees or publicly subsidized experts—ranging from auditors hired to ferret out agency misconduct to scientists commissioned to study and report on changing climate patterns—to convey truthful information and competent, good faith analyses consistent with disciplinary and professional norms. The second line of precedent is the aspect of separation of powers law known as unitary executive theory (“UE theory,” “UE,” or “unity”). UE proponents argue that the president must fully control all discretionary executive activity in the United States, at minimum through an unfettered removal power. This jeopardizes the independence of federal actors who are charged with research and reporting on matters ranging from public corruption to public health.

The two doctrines not only have similar impacts on information and analysis in the United States, but also share a common rationale: political accountability. Proponents of government speech doctrine emphasize that the people can respond to government speech at the ballot box, rewarding elected officials for speech that they like or punishing them when they dislike what they hear. As for UE theory, supporters emphasize that the president is the only elected official in the federal executive branch. Indeed, they describe the president as more politically accountable than anyone else holding elected office in the United States, as the president alone is subject to nationwide election. It is crucial, they argue, that the president alone exercises discretionary executive power so that the people know whom to blame or reward electorally for the use of such power. Similarly, they brush away concerns about presidential abuses by stressing the ability of the people to punish transgressions at the ballot box.

The judiciary is far from alone in crafting and buttressing these schools of thought. To the contrary, UE theory was shaped and heavily promoted by the modern conservative legal movement well before the Roberts Court embraced it. Indeed, even as the Supreme Court rejected UE theory in the 1988 case of Morrison v. Olson, the Justice Department under Attorney General Meese relied on it internally and championed it externally along with the then-nascent Federalist Society. Today, with the support of the Supreme Court, and with Donald Trump retaking the presidency and characterizing career experts across government as parts of a rogue “deep state,” UE theory and its accountability rationale have more influence than ever.

Although, to my knowledge, no similarly probing intellectual history has been done with respect to government speech doctrine, the doctrine aligns intuitively with classic complaints about how Americans’ tax dollars are spent, including on public education, public broadcasting, and other forms of knowledge production. Such gripes are not intrinsically partisan, but they can be marshalled in a partisan fashion when framed as appeals to stop “wrongheaded” or “offensive” views from being supported by public funds. Over the past several years, we have indeed seen campaigns, in both legal and political realms, for elected officials to control the communicative output of a range of government programs. These campaigns often characterize civil servants as parts of a leftist deep state, echoing the rhetoric of unitary executive theorists. Their targets include elementary school teachers, college professors, and librarians whom they deem “woke” and indoctrinating. The major thread of argument in these political and legal attacks has been accountability—specifically, the notion that the electorate, through elected representatives, should get the final word on the content of publicly funded knowledge production. Framed in legal terms, the argument is that all such output is the government’s own speech.

Yet even as accountability serves as a rallying cry for proponents of UE theory and government speech doctrine, there is a profound tension between that call to arms and the negative impacts of both government speech doctrine and UE theory on the information ecosystem. This tension stems from two very different visions of accountability. Government speech and unitary executive arguments each focus on a thin vision of accountability, one that I have elsewhere called “formal accountability.” Formal accountability requires only that there exist some means, mainly the ballot box, by which the public can accept or reject officials.¹

A more robust vision of accountability—one that I label “substantive accountability”—recognizes that accountability “is a ‘they,’ not an ‘it.’ ”² Indeed, the casting of a single vote for an official—even assuming the opportunity to vote for or against them again some number of years later—is too blunt an instrument to constitute considered approval of all manner of decision whether big or small, technical or non-technical, anticipated or unanticipated. Rather, holding officials accountable entails countless acts over time, ranging from legislative oversight to internal and external whistleblowing to fearless investigative journalism. All of these acts—including, but not limited to, voting—require the gathering and exchange of information and ideas. In the longer-term, they require a knowledge ecosystem that reliably produces such communications and supports a citizenry capable of assessing them. If one’s goal is substantive accountability, then government speech doctrine and UE theory are woefully inadequate to achieve it. To the contrary, they profoundly undermine it, especially when they are interpreted broadly.

Given the growing importance of UE theory and government speech doctrine in both legal and political realms, it is more important now than ever to understand how they undermine, rather than protect, meaningful, substantive accountability. Viewing these two schools of thought together also helps us to see how doctrines across seemingly disparate areas of the law can interact with and buttress one another and be harnessed by partisan interests.

In Part I of this Article, I summarize the respective accountability-based cases for UE theory and government speech doctrine. I explain that each rationale is premised on a simplistic, formal vision of accountability. In contrast, I argue that substantive accountability, which is antithetical to UE theory and to broad interpretations of government speech doctrine, is more faithful to constitutional principles and more desirable as a practical matter. In Part II, I elaborate on and illustrate the points made in Part I by drawing from the major Supreme Court cases on UE theory and government speech doctrine. In Part III, I present several examples of how UE theory and government speech doctrine have been wielded in the courts and the political branches to undermine substantive accountability. In Part IV, I consider where the case law leaves openings to impose limits on each doctrine to preserve substantive accountability.

I. Substantive Accountability and the Constitution

Proponents of UE theory and government speech doctrine assume a very simplistic vision of government accountability. In the case of UE theory, they suggest that because the president is the only elected member of the executive branch, he alone can be accountable to the people in executing the law.³ Thus, UE proponents bolster their textual and historical arguments—which I and others have discussed elsewhere⁴ and which I address briefly in Part II—by suggesting that accountability is a core reason why text and history dictate a unitary executive,⁵ and that accountability independently demands a unitary executive.⁶ Proponents elaborate further on presidential accountability by comparing the president not only to unelected bureaucrats, but also to members of Congress. Although the latter are elected, the argument goes, the president alone is subject to election by the entire nation through the Electoral College. He is also uniquely visible in culture and society.⁷

In the case of government speech doctrine, the Supreme Court and other proponents have treated accountability—again, in the form of elections—as a safety net that enables the people to register disapproval of unpopular government speech. They also suggest that government speech itself bolsters accountability, both in the sense that the government can give the people what they want through speech and that it can seek to persuade them through speech.

A number of scholars have critiqued the Court’s treatment of accountability in both UE theory and government speech doctrine cases. With respect to UE theory, critics observe that it massively oversimplifies how accountability is achieved as a practical matter. Indeed, it seems naïve to believe that a single vote for president held once every four years can bear the accountability load for virtually all executive branch activity. Even if we put aside the Electoral College—on account of which the popular vote winner lost the presidency twice in the last quarter of a century—and the fact that voters across the country are not a monolith, the assumption that a presidential election result constitutes a referendum on every discretionary decision of the executive branch, including the most obscure and technical ones, is heroic.⁸

Furthermore, to the extent that constitutional accountability is about the electoral relationship between the people and elected officials, those officials include members of Congress as well as the president.⁹ As Blake Emerson writes, unity proponents “do not grapple with the competing democratic authority of Congress to structure the Executive Branch.”¹⁰ To the contrary, unity is invoked to invalidate legislation passed by both houses of Congress—and, it is no small matter, signed by the president¹¹—that seek to create some independence from unfettered presidential control in the administrative state.

Many if not most of the statutory innovations targeted by unity proponents themselves are designed to foster accountability—for instance, by shielding internal investigations from direct partisan control. This is not to say that administrative independence always enhances accountability. The point, rather, is that devising structures to maximize accountability, let alone to do so while preserving other goals and values, calls for legislative innovation and flexibility rather than categorical rules. As Justice Kagan put it, dissenting in 2020 in Seila Law v. Consumer Financial Protection Bureau, “[d]iverse problems of government demand diverse solutions. They call for varied measures and mixtures of democratic accountability and technical expertise, energy and efficiency. Sometimes, the arguments push toward

tight presidential control of agencies. . . . At other times, the arguments favor greater independence from presidential involvement.”¹²

Justice Kagan’s point dovetails nicely with another major scholarly critique of UE theory’s formalistic accountability. That is, formal accountability is consistent neither with the ordinary meaning of accountability nor with the conception of it embodied in the Constitution’s structure. Elsewhere, I have summarized some of the major literature on these points as follows:

[Unity’s] vision of accountability is inconsistent with the far more complex [scheme] envisioned by the Constitution, [which] creates a web of accountability shared by multiple legislators representing multiple constituencies and by the presidency alike. Furthermore, constitutional accountability mechanisms are not directed solely toward vindicating majority policy preferences . . . but also toward guarding against abuse, incompetence, and majoritarian tyranny. In the context of the administrative state . . . constitutional accountability values demand not only multiple avenues for political accountability, but also intra-bureaucratic accountability mechanisms characterized by “complex chains of authority and expertise.”¹³

I have built on these insights in my own work by focusing on the role that transparency plays in fostering meaningful, or substantive, accountability.¹⁴ Even if our only goal were electoral responsiveness, that goal cannot be realized without popular access to information about government and an electorate capable of assessing it. Unfettered presidential control of the administrative state enables presidents to frustrate these ends by stifling or manipulating politically inconvenient information ranging from misconduct investigations to economic or scientific analyses that might cast doubt on administration priorities. The problem is yet more apparent when one considers the array of accountability mechanisms beyond the franchise, all of which require a reliable flow of information and analyses.

As for government speech doctrine, a key critique of the accountability rationale is that it assumes a level of authorship transparency that is not necessarily present in state-created or state-disseminated speech. As Helen Norton writes, “government speech is most valuable and least dangerous when members of the public can identify the government as its source. If, on the other hand, the expression’s government source is obscured . . . then political accountability provides no meaningful safeguard.”¹⁵ Although the Supreme Court has said that it might weigh public perception among other factors to determine whether speech is private or public,¹⁶ the Court has developed no “reliable method” to gauge it.¹⁷ To make matters worse, the other factors that the Court considers—such as the extent of government control over speech—can themselves undermine accountability if they are not accompanied by authorship transparency.¹⁸

A closely related problem can occur, even where there is no doubt that the speech at issue is produced or disseminated by the government, if that speech is falsely presented as a product of expertise or evidence-based fact-finding rather than political pressure. As with UE theory, the problem is politicized knowledge production. Elsewhere, I have referred to this phenomenon as “distortion.”¹⁹

Distortion occurs when the government—whether through employment or subsidies—sponsors the creation or dissemination of speech but imposes conditions that distort the nature of the speech or its production.²⁰ In the context of government speech doctrine, the conditions would typically be imposed on the receipt of subsidies or on continued employment. In the unitary executive context, the means of enforcing conditions can vary and will depend partly on how aggressively UE theory is interpreted. At minimum, enforcement can entail actual or threatened removal from office. Recently, I illustrated the phenomenon of distortion as follows:

Take the example of a climate scientist who works for NASA and contributes to publicly issued reports and testimony that purport to detail scientific findings. Presumably, it is no secret that the scientist works for a government agency and is paid with public funds. Yet an accountability concern remains insofar as the public can be expected to assume that the scientist’s contributions to public reporting are based on professional judgment and scientific best practices. Were those contributions instead shaped by political directives, the public would effectively be duped through distortion that cloaks political messaging in the vestments of science.²¹

Distortion can have both near-term and very far-reaching impacts on substantive accountability. To be sure, the line between short- and long-term consequences is a fuzzy one. For example, suppose that political appointees pressured civil servant scientists in an agency to bury or skew research findings that cast doubt on the feasibility of a presidential initiative. In the short run, such intimidation might prevent the public from hearing the unvarnished views of scientists on an electorally salient matter. In the longer run, the pressure campaign—particularly if it were not an isolated incident—might drive highly qualified scientists from the affected agency and deter others from serving in the first place. Such churn, along with the atmosphere that precipitated it, could impact public access to good-faith products of scientific expertise. Still more perniciously, it might undermine the capacity of the public to distinguish expertise from unfounded assertion.

Nonetheless, rough distinctions can be drawn between actions that undermine accountability in the near term and those that do so over time. Indeed, the preceding example suggests an intuitive place to draw a line: between acts or policies designed to keep discrete pieces of information or analysis from reaching the public, and those designed to politicize public knowledge-producing institutions from the inside. This distinction loosely parallels one made by political scientist Terry Moe between two techniques through which presidents wield control over the administrative state: centralization, whereby presidents institutionalize top-down White House control over agencies, and politicization, whereby presidents seek to shape

agencies through appointment and removal powers so that they are politically in tune with the White House in the first place.²²

In pointing to both short- and long-term impacts to accountability, I mean to highlight the depth of the threat that government speech doctrine and UE theory pose to substantive accountability. From a short-term perspective, even if a knowledge institution were to remain fundamentally unchanged by political interference, the partisan manipulation of discrete pieces of data or expert analyses can distort the very picture of reality against which the electorate votes. In the longer run, the impact is yet more serious and harder to reverse, as politicization permeates state-funded enterprises purportedly devoted to disciplinary and professional expertise.

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

In this Section, I review the major Supreme Court cases on government speech doctrine, emphasizing their relationships to accountability. The Court has developed the doctrine over the past few decades. Its premise is largely uncontroversial: “[w]hen the government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”²³ For example, as Justice Rehnquist wrote in 1991’s Rust v. Sullivan, “[w]hen Congress established a National Endowment for Democracy to encourage other countries to adopt democratic principles, . . . it was not constitutionally required to fund a program to encourage competing lines of political philosophy such as communism and fascism.”²⁴ Similarly, Justice Breyer, writing for the majority in Shurtleff v. Boston in 2022, posited that “Boston could not easily congratulate the Red Sox on a victory were the city powerless to decline to simultaneously transmit the views of disappointed Yankees fans.”²⁵

Despite the commonsense idea at the doctrine’s core—and the intuitive appeal of examples like those invoked by Rehnquist and Breyer—the doctrine’s scope is heavily contested. Two categories of cases raise especially tough questions. The first entails restrictions that fall on speech that can plausibly be characterized as private, rather than governmental speech. For example, the Supreme Court held in Walker v. Texas Division, Sons of Confederate Veterans that specialty license plates in Texas, even those designed by private groups to reflect private hobbies and interests, constitute government speech.²⁶ Dissenting on behalf of himself and three other justices, Justice Alito lamented the Court’s “capacious understanding of government speech” that “threatens private speech that government finds displeasing.”²⁷ Sounding a similar alarm, Mary-Rose Papandrea wrote that Walker put “the Court’s growing deference to government institutional actors . . . on steroids, allowing the government to disfavor private speech in the name of protecting its image.”²⁸

The second category, and the one on which I focus in this essay, arises when government purports to subsidize speech that reflects evidence-based reasoning or that otherwise is governed by professional or disciplinary norms, but conditions its support on terms that would distort the nature of the undertaking. Distortion would occur, for example, if the government were to hire investigators to probe alleged wrongdoing or climate scientists to undertake research and report their findings while pressuring them to bury politically unwelcome results.

Distortion undermines free speech values in the same way that it undermines accountability: in the short term, it uses subsidized speakers to launder political messaging and present it as professional or disciplinary expertise; in the long run, it degrades the public’s capacity to consume and process information necessary to oversee their government.

The distorting potential of government speech doctrine is as old as the doctrine itself. Indeed, commentators most often trace the doctrine’s origins to Rust v. Sullivan, a case that itself raises the specter of distortion. In Rust, the Supreme Court upheld federal regulations barring family planning clinics from mentioning abortion in the course of providing federally subsidized counseling.²⁹ Although the Rust Court did not invoke the concept of government speech explicitly,³⁰ the Supreme Court described Rust in these terms just a few years later, in Rosenberger v. Rector and Visitors of the University of Virginia.³¹ The Rosenberger Court characterized Rust as grounded in the notion that “when the government appropriates public funds to promote a particular policy of its own it is entitled to say what it wishes.”³² Rust’s critics have argued that the challenged conditions forced medical providers to choose between funding and professional and ethical norms; in short, that the conditions distorted the funded healthcare.³³

Fifteen years after Rust, the Supreme Court decided the government speech case that is most conducive to distortion: Garcetti v. Ceballos.³⁴ Garcetti established that public employees receive no First Amendment protection against termination or other job-related penalties for speech that they convey while doing their jobs. Garcetti relies at least partly on a government speech rationale, characterizing public employee work product speech as speech that “the employer itself has commissioned or created.”³⁵ The assumption that government employees invariably convey a government-crafted message when they speak runs headlong into distortion concerns in the many cases in which employees are hired to provide professional judgment and expertise.

The Supreme Court regularly parries concerns about abuses of the doctrine by invoking political accountability. In Shurtleff v. City of Boston, for example, the Court reiterated its view that “[t]he Constitution . . . relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.”³⁶ In Walker, the Court similarly argued that “the democratic electoral process . . . provides a check on government speech,” and added that such speech itself is an expression of voters’ wishes: “members of the public . . . influence the choices of a government that, through words and deeds, will reflect its electoral mandate.”³⁷

The Garcetti Court also suggested that electoral accountability will yield legislation to protect public employee speech that is in the public interest. Writing for the Garcetti majority, Justice Kennedy cited the existence of a “powerful network of legislative enactments—such as whistle-blower protection laws and labor codes—available to those who seek to expose wrongdoing.”³⁸ This reasoning is similar to that invoked by the Court in 1983’s Bush v. Lucas.³⁹ The Lucas Court held that most First Amendment damages claims brought by federal employees against their employers are precluded by federal statutory civil service protection laws,⁴⁰ even as the Court “assumed, arguendo, that the [statutory] remedies . . . were not ‘as effective as an individual damages remedy.’ ”⁴¹ The Court reasoned that Congress has ample incentive to protect public employee speech, particularly whistleblowing, given Congress’s “special interest in informing itself about the efficiency and morale of the Executive Branch.”⁴²

B. Unitary Executive Theory

At first blush, UE theory has little in common with government speech doctrine; the former is an argument about government structure—specifically, the separation of powers—and pertains only to the federal government. Unity’s core assertion is that the president must control all discretionary activity in the federal executive branch, at minimum by having the power to remove anyone whose job entails such activity. The theory is grounded partly in interpretations of Article II’s text and history.

Yet UE theory shares important features with government speech doctrine. Most importantly, unity threatens substantive accountability even as its proponents justify it largely by reference to formal accountability. As with government speech doctrine, distortion is the main means by which UE theory can undermine substantive accountability.

A 1988 memorandum opinion by the Justice Department’s Office of Legal Counsel (“OLC”) illustrates how UE theory can enable political control of ostensibly non-political, even highly technical, communications.⁴³ In that memo, the OLC took the position that Congress could not constitutionally require the Director of the Centers for Disease Control (“CDC”) to mail “AIDS information fliers” to the public “without necessary clearance” by the president.⁴⁴ “It matters not at all,” the OLC asserted, “that the information in the AIDS fliers may be highly scientific in nature. The president’s supervisory authority encompasses all of the activities of his executive branch subordinates, whether those activities be technical or non-technical in nature.”⁴⁵ The OLC further stressed the categorical nature of the president’s authority by quoting a 1982 OLC opinion to the effect that the president’s “ultimate control over subordinate officials . . . includes the right to supervise and review [their] work . . . including reports issued either to the public or to Congress.”⁴⁶

As we have seen, unity’s proponents deem it essential to preserve accountability,⁴⁷ despite its negative effects on substantive accountability. Recall the major features of the accountability-based argument for unity. First, proponents observe that the president is the only elected member of the federal executive branch and contrast him with unelected bureaucrats.⁴⁸ They also deem him more politically accountable than members of Congress, given his high visibility and the fact that he alone is subject to election by the entire nation through the Electoral College.⁴⁹ As such, it is only when the president “controls all law execution in the United States [that] the national electorate has a clear object of blame or reward for such activity.”⁵⁰

The accountability rationale for unity is not extolled only by sympathetic scholars and executive branch lawyers. It has also been central to unity-friendly judicial precedent since the 1926 case of Myers v. United States.⁵¹ In Myers, the Court invalidated legislation that required the president to obtain Senate approval before removing a postmaster whom the president had appointed with the Senate’s advice and consent.⁵² Fittingly, the Court’s opinion was written by Chief Justice Taft, the only Justice in history to have previously served as U.S. President.⁵³ Much of Taft’s analysis centered on the so-called “Decision of 1789,”⁵⁴ a lengthy debate in the First Congress on the president’s power to remove officers.⁵⁵ Taft characterized the Decision partly as a referendum on the accountability rationale. Quoting James Madison in the 1789 Debate, Taft wrote:

If the President should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved: the lowest officers, the middle grade, and the highest will depend, as they ought, on the President, and the President on the community.⁵⁶

Taft also stressed the relative depth of presidential accountability: “the President, elected by all the people, is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local and not country wide.”⁵⁷

More than seven decades would pass before unity arguments would again be received so enthusiastically by the Supreme Court. In the interim, the Court decided a series of cases in which it upheld statutory restrictions on removal, distinguishing each from the provision reviewed in Myers and thus effectively narrowing Myers’ reach.⁵⁸ In Humphrey’s Executor v. United States, decided just nine years after Myers, the Court deemed Myers’ holding limited to “purely executive officers.”⁵⁹ In two 1980s cases—Bowsher v. Synar⁶⁰ and Morrison v. Olsen⁶¹—the Court characterized Myers as a directive against Congress reserving the removal power for itself; Myers did not categorically bar other limits, such as for-cause requirements, on the president’s power to remove even purely executive officers.⁶² Chief Justice Rehnquist, writing for the Morrison Court, explained that the validity of a removal restriction turns on a flexible, functional question: whether the restriction is “of such a nature that [it impedes] the President’s ability to perform his constitutional duty.”⁶³

As the lone dissenter in Morrison, Justice Scalia penned an opinion that has since become a classic in the UE theory canon and that presaged the Roberts Court’s warm embrace of unity.⁶⁴ Among other things, Scalia invoked accountability.⁶⁵ The president, he observed, “is directly dependent on the people.” Indeed, the Constitution’s founders touted the relative accountability of a single president as opposed to a multi-member body: “since there is only one President . . . [t]he people know whom to blame” when something goes awry.⁶⁶ In the case of prosecutors, an unfettered presidential removal power ensures that “when crimes are not investigated and prosecuted fairly . . . the President pays the cost in political damage to his administration.”⁶⁷

Beginning in 2010, the Roberts Court retreated from the functional approach that the Supreme Court had embraced for most of the twentieth century.⁶⁸ As of now, the Court has not explicitly overruled Humphreys Executor, Bowsher, or Morrison. It has, however, reframed them, suggesting that they stand only for discrete “exceptions to the President’s unrestricted removal power.”⁶⁹ Accordingly, the Roberts Court has struck down several statutes imposing limits on this power, including a law that permitted the president to remove the director of the Consumer Financial Protection Bureau only for “inefficiency, neglect of duty, or malfeasance in office.”⁷⁰

Like the Taft Court, the Roberts Court identifies accountability as a central reason why the Constitution demands a unitary executive. Indeed, in every case in which it has rejected presidential removal restrictions, the Roberts Court has followed Taft’s lead by quoting James Madison’s 1789 statement that “the lowest officers, the middle grade, and the highest,” ought to depend “on the President, and the President on the community.”⁷¹

To be sure, unity’s proponents do not rely solely on accountability; they also invoke arguments from constitutional history and text. Elsewhere, I have recounted and built on some of the major rejoinders to these text and history-based arguments.⁷² Although my focus in this Essay is on accountability, it is worth noting that unity’s text and history-based arguments—and their failings—are themselves intertwined with unity’s enervated vision of accountability. This is true, for example, of unity proponents’ over-reading of founding-era arguments linking constitutional and statutory provisions to accountability. Proponents tend to leap from highly case-specific founding era arguments to a broad, acontextual constitutional unity directive, a move enabled by their fixation on formal, rather than substantive accountability.⁷³ This phenomenon is illustrated by unity proponents’ use of the founding era decision not to append an advisory council to the president. As I explained in a previous article:

[U]nity proponents cite founding fears that the President would hide behind his council, blaming it for his own poor decisions and thus defeating accountability. From this, unity proponents leap to the conclusion that the founders wanted the President to fully control all discretionary executive decisions and executive officers. Yet this conclusion massively oversimplifies the nature of the council debate. Council opponents focused on features specific to the proposed council, including its small size and its ability to collude with the President in relative secrecy. Notably, they also feared that the President and his council would seek to appoint executive branch officers who “possess[ed] the necessary insignificance and pliancy to render them the obsequious instruments of [the President’s] pleasure.” At minimum, the council debate, centering as it did on the specific features of the proposed council, simply did not address whether the executive branch must in all respects be unitary. If anything, the accountability-related concerns articulated in the debate suggest that the founders feared full presidential control over executive branch decision making and officers. Unfettered control could, among other things, foster secretive collusions between the President and those in his thrall.⁷⁴

III. Contemporary Threats to Substantive Accountability

In Part III, I present three sets of examples that span the period from the post-Watergate years to the earliest days of the second Trump Administration. In Section III.A, I look at the development of UE theory in the Department of Justice (“DOJ”) during the late 1970s and 1980s and its use by the Department to resist post-Watergate ethics and oversight measures. I observe that Donald Trump has picked up this mantle in more recent years, including through his resistance to oversight by Inspectors General. In Section III.B, I look at the impact of both unity and government speech doctrine on the civil service more broadly. In Section III.B.1, I discuss the relationship between the federal civil service and UE theory. I focus especially on “Schedule F,” newly reinstated through executive order on the first day of the second Trump Administration and aimed at replacing vast swaths of the civil service with political appointees. In Section III.B.2, I summarize two key reasons, including Garcetti’s impact, for the enervated state of first amendment protections for federal civil servants. In Section III.B.3, I cite several examples—including a recent spate of state laws regulating the classroom speech of public school teachers and professors—of government speech doctrine’s effect on state and local employees.

A. Unitary Executive Theory and Federal Investigations

Investigations that could implicate the president or his allies are classic locations for dispute over the constitutionality and wisdom of restrictions on the president’s ability to fire personnel or interfere with their work. Morrison v. Olson itself involved a challenge to the independent counsel provisions of the 1978 Ethics in Government Act. Enacted in the wake of Watergate, the Act was an effort to confront public corruption, in part by creating an independent counsel (“IC”) with some degree of distance from presidential control. The Act’s IC provisions were responsive to fears that presidents would, as Richard Nixon had done, interfere with Justice Department investigations in which they could be implicated. Olson challenged these provisions partly on the basis that the IC was incompatible with a unitary executive because the IC did not serve at the president’s pleasure. Instead, the IC could be terminated only by the Attorney General (“AG”), who herself is subject to at-will dismissal by the president. The AG could fire the IC “only for good cause, physical or mental disability . . . or any other condition that substantially impairs [the IC’s] performance of . . . [their] duties.”⁷⁵

The majority and dissenting opinions in Morrison reflected two very different ideas about unity and accountability. To the majority, written by Justice Rehnquist, the judicial mission was limited and functional: its role was not “to define rigid categories”⁷⁶ but to ensure that legislation does not “interfere impermissibly with [the president’s] constitutional obligation to ensure the faithful execution of the laws.”⁷⁷ Among the factors that Rehnquist cited to explain why the removal restriction passed this practical assessment, it “was essential, in the view of Congress, to establish the necessary independence of the office,” an office that could be tasked with investigating the president or close advisors.⁷⁸ To Justice Scalia, the lone dissenter, the president possessed all the executive power—a conclusion that he reached by interpreting Article II’s opening words, “[t]he executive Power shall be vested in a President of the United States,” to mean “all of the executive power”—and such power necessarily entails complete and indefeasible removal authority.⁷⁹ As for the risk that the president might abuse this power, Justice Scalia answered that “the primary check against prosecutorial abuse is a political one. The prosecutors who exercise this awesome discretion are selected and can be removed by a President, whom the people have trusted enough to elect.”⁸⁰ Justice Scalia’s vision of accountability was so narrow that he treated the IC provisions, enacted by elected members of Congress and subject to presidential veto, as constitutionally intolerable because they might subject the president and their advisers to popular scrutiny. The provisions, Scalia said, “weaken[] the Presidency by reducing the zeal of his staff” and “enfeeble[] him more directly in his constant confrontations with Congress, by eroding his public support.”⁸¹

Although functionalism—and substantive accountability—prevailed over formalism in Morrison, Justice Scalia’s views would eventually receive a much warmer reception in the Roberts Court. Within the executive branch, unitary executive theorists did not need to wait nearly so long to see their ideas put into practice. The Justice Department in the Reagan Administration was deeply entwined with the conservative legal movement,⁸² and both the Department and the broader movement made the advancement of UE theory a priority.⁸³ Conservative legal elites viewed unity as one means of reigning in the perceived liberalism of the administrative state, and were also drawn to it because Republicans at the time had better electoral chances with the presidency than in either house of Congress.⁸⁴

Much of the pro-unity activity in the Reagan-era Justice Department was directed against post-Watergate legislation that imposed oversight measures on executive branch lawyers. Recounting these efforts, Deborah Pearlstein writes:

[T]he first sustained campaigns to apply unitary executive theory to the day-to-day workings of government began within the Department of Justice, and some of the most important battles focused on just [the] claim . . . that an appropriate understanding of the executive power required recognizing constitutional limits on the ability of Congress and the federal courts to engage in professional oversight of Justice Department lawyers. On some occasions quite visibly, on others largely in secret, movement lawyers deployed unitary executive arguments to challenge or block three of the major tools that post-Watergate reformers had pursued to ensure government attorneys would worry more about being held accountable for their misconduct: (1) strengthened rules of professional ethics; (2) an Office of Professional Responsibility inside the Department of Justice to investigate ethics complaints against government attorneys; and (3) independent inspectors general to investigate allegations that government officials were responsible for waste, fraud, or abuse.⁸⁵

Unity proponents also made their cases—for UE theory generally and against independent oversight of federal officials in particular—to the practicing bar, to legal academics, and to law students.⁸⁶ These efforts contributed to unity’s eventual reversal of fortune in the courts. They also helped to shift the norms of acceptable conduct among government officials, both because they “weakened internal ethics checks” and created a permission structure for ethical breaches.⁸⁷ Indeed, the repeated refrain that oversight legislation weakens the president and affronts voters lends itself to arguments that even highly credible and serious misconduct allegations are mere “partisan attack[s].”⁸⁸

Although UE theory has a decided partisan valence historically, its allure as a means to push back against oversight has not been lost on Democrats when they occupy the oval office. Although the DOJ Inspector General—against which movement lawyers fought—was not established until 1988,⁸⁹ the initial Inspectors General Act was enacted in 1978, and then-President Jimmy Carter’s OLC objected to two aspects of the law as inconsistent with unitary presidential control of subordinates.⁹⁰ John Harmon, Carter’s Acting Assistant AG for the OLC, objected in a memorandum to the Act’s removal provision, which gave the president at-will removal power over Inspectors General (“IGs”) but required them to notify both Houses of Congress of their reasons for removal. Citing Myers, Harmon called this an “improper restriction on the President’s exclusive power to remove Presidentially appointed executive officers.”⁹¹ Harmon also objected to the IG’s statutory “obligation to keep Congress fully and currently informed” and the related “requirement that [the IG] provide any additional information or documents requested by Congress . . . without executive branch clearance or approval.”⁹² In Harmon’s view, these informing rules interfere with the president’s “general administrative control over those executing the laws,” which “includes the right to coordinate and supervise all replies and comments from the executive branch to Congress.”⁹³

Finally, and unsurprisingly, Donald Trump has been especially brazen in resisting accountability measures and in invoking unity to do so. Examples to this effect include his dismissals of Inspectors General during his first administration and in the first week of his second administration. During his first administration, Trump notoriously fired several Inspectors General who investigated controversies ranging from the administration’s handling of the Covid-19 pandemic to the call between Trump and the Ukrainian president that led to Trump’s first impeachment.⁹⁴ Trump made clear his view that UE theory empowered him to take such actions.⁹⁵ As of this writing, less than one week into Trump’s second administration, he has already fired more than a dozen Inspectors General in the course of a single Friday evening. The firings eschewed the applicable statutory requirement that Congress receive thirty days’ notice of any removal including a “substantive rationale” with “detailed and case-specific reasons” for removal.⁹⁶

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

UE theory also threatens the federal civil service on the whole, including disciplinary experts such as scientists, economists, and public health researchers. Unity can undermine their ability to disseminate competent, good-faith information and analyses that an administration finds politically inconvenient. Such impacts have both short-term and long-term aspects. In the short term, presidents and their political subordinates may invoke unity to block or manipulate certain communications. In the longer run, they may nip such communications in the bud more seamlessly by thinning out the merit-based civil service in favor of a largely political workforce.

As for short-term impacts, there are two major categories of valuable civil service communications at risk. The first is whistleblowing regarding wrongdoing in federal agencies. Currently, civil service laws protect federal employees who blow the whistle on bad acts including illegality, waste, and abuse.⁹⁷ These protections would be compromised should an administration assert, and even more so should courts agree, that such legislation cannot constitutionally prevent the president from removing, at will, anyone who exercises discretionary executive power. As I elaborate in Part IV, it is by no means a foregone conclusion that courts would allow presidents to bypass civil service protections on unitary executive grounds. It is possible, however, that courts would indeed extend the logic of the Roberts Court removal cases so far. Courts might also draw to the same effect on the Supreme Court’s recent decision in Lucia v. Securities and Exchange Commission in which the Court expanded the definition of “officers” who constitutionally cannot be part of the civil service.⁹⁸

UE theory can also be invoked to stifle civil servants who seek to convey information or analysis in the ordinary course of doing their jobs. Recall, for example, the OLC’s 1988 opinion to the effect that Congress may not require executive branch personnel to distribute even highly technical information without a chance for presidential intervention.⁹⁹ Furthermore, to the extent that some such speech falls within the terms of federal whistleblower protection laws,¹⁰⁰ it is vulnerable to the same unity-based threats as that faced by federal whistleblowers more broadly.

Unity can enable much more than the blocking of isolated pieces of information and analysis. It can have a deep, long-range impact by thinning out the ranks of the civil service, enabling the president to fill and potentially fire large swaths of the federal workforce previously designated as nonpartisan merit hires. As noted, it is by no means inevitable that courts would sign off on such sweeping changes. Existing case law does, however, open the door to such a possibility, and at minimum, it can embolden presidents to test the boundaries of precedent by trying to initiate such action.

Donald Trump seems determined to push the limits of a president’s power to politicize the federal workforce. On the first day of his new administration, January 20, 2025, he issued an executive order (“EO”) reinstating the so-called “Schedule F” order that he had issued in the waning days of his first administration.¹⁰¹ The EO authorizes the transition of potentially tens of thousands of career positions throughout the federal workforce into political appointments.¹⁰² In its purpose section and even its title, the EO projects confidence that it is permitted, even demanded, by unity and accountability.¹⁰³ The EO is entitled “Restoring Accountability to Policy-Influencing Positions Within the Federal Workforce,” and it asserts that the president has “sole and exclusive authority over the executive branch.” It adds that any power held by federal employees “is delegated by the President,” and that employees “must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people.”¹⁰⁴ Fittingly, the idea behind Schedule F during Trump’s first administration originated in a memorandum suggesting that Trump “[e]xplore the ‘Constitutional Option’ for firing federal employees,”¹⁰⁵ and that civil service protections might be unconstitutional.¹⁰⁶

There is also an obvious kinship between the EO’s reliance on the notion of presidential accountability and Trump’s longstanding rhetoric about the abuses of the so-called “deep state.”¹⁰⁷ As Donald Moynihan writes, “Trump was not just antagonistic toward the career public service: this hostility was central to his political identity. He had openly campaigned against the ‘deep state.’ ”¹⁰⁸ The EO’s own language frames it as a reaction to “numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership,” and as a “restor[ation of] accountability to the career civil service.”¹⁰⁹

Federal Employees and the First Amendment

Federal civil service laws are especially crucial to protect accountability-enhancing speech because federal employees lack robust First Amendment protections. On the rare occasions that an employee’s free speech lawsuit proceeds to the merits, it confronts the Garcetti hurdle. Should a court conclude that the employee’s speech either occurred outside of the course of their employment or warrants an exception from Garcetti, the employee still must overcome a balancing test that defers substantially to employers’ rationales.¹¹⁰

As noted earlier, the reason why federal employees are rarely able to invoke the First Amendment to sue their employers directly is because the Supreme Court held in 1983’s Bush v. Lucas¹¹¹ that the federal civil service laws preclude such suits.¹¹² The Lucas Court expressed confidence that Congress would protect whistleblowers.¹¹³ It did not, apparently, anticipate a future in which whistleblower protection laws might themselves be overtaken by aggressive interpretations of UE theory. Even on their own terms, such laws have not reliably served as the “powerful network” that the Garcetti Court assured would protect whistleblowers in lieu of robust first amendment protections.¹¹⁴ For example, at the time that the Court decided Garcetti, federal whistleblower protection law contained the same hole that

Garcetti created in constitutional coverage—namely, it did not encompass speech made as part of one’s job.¹¹⁵

The First Amendment and State and Local Employees

Although state and local employees can invoke their First Amendment rights directly, those rights have been narrowed considerably by courts, particularly through the government speech doctrine and Garcetti. Furthermore, as we have seen, the notion underlying a broad government speech doctrine—that public employee speech is rightly, even necessarily subject to political control—also has substantial political currency. That political appeal—coupled with legislators and executive officers feeling emboldened by the state of the case law—have helped give rise to a number of restrictive policies, ranging from sweeping public employee gag rules to legislation micro-managing the classroom speech of public school teachers. In this Section, I discuss three examples of such measures: post-hoc discipline for employee speech, prior restraints on employee communications with the media, and laws targeting public school educators in particular.

First, Garcetti and some lower court interpretations of it negatively impact substantive accountability by opening the door to retaliation for two categories of speech: employee reports of wrongdoing and employee communications on matters of public interest in the course of doing their jobs. The latter requires little explanation, as Garcetti explicitly permits discipline for speech that constitutes work product, however truthfully and competently performed. The former also follows plainly from Garcetti to the extent that catching and reporting on internal wrongdoing is a part of one’s job. Furthermore, although lower court interpretations of Garcetti are not monolithic, some define job duty speech broadly enough to capture a good deal of such whistleblowing. For example, some courts treat the fact that an employee reported wrongdoing through their “chain of command,” or through some other avenue that lacks a “civilian analogue,” as evidence that the report fell within their job duties.¹¹⁶ Some courts accord the same meaning to the fact that an employee’s speech is directed toward resolving problems that interfere with their duties.¹¹⁷ Furthermore, despite contrary language in a 2014 Supreme Court case,¹¹⁸ some lower courts have treated the fact that an employee learned about information on the job as a factor that weighs against First Amendment coverage should they face discipline for communicating it.¹¹⁹

Second, although there is a sound basis to conclude that Garcetti does not license agencies to impose sweeping prior restraints on employee speech,¹²⁰ and some courts indeed have struck down such policies,¹²¹ there remain scores of federal, state, and local directives that bar employees across multiple agencies from speaking to reporters without authorization. A 2019 report by the Brechner Center for Freedom of Information at the University of Florida found “dozens of examples of policies that either forbid government employees from speaking to journalists at all, or require that they obtain a supervisor’s permission before doing so.”¹²² Such policies persist in part because “Garcetti fueled a mindset among government managers and their counsel that the courts would view restrictions on employee speech deferentially.”¹²³ The political currency of the notion underlying Garcetti and government speech doctrine more broadly—that agency employees can be made to speak in one voice, dictated by political leadership—plays an important role as well.

Third, over the past several years, public school teachers—college and university professors as well as K–12 instructors—have faced a host of state laws barring them from conveying certain ideas about race or gender in the classroom.¹²⁴ State and public school board defendants have leaned heavily on the government speech doctrine to justify the laws. To defend its restrictions on the instructional speech of public college professors, for example, the state of Florida asserted that the First Amendment “categorically does not apply” because such communications constitute “heartland government speech.”¹²⁵ Defendants have also invoked accountability to bolster their government speech arguments. In the Florida litigation, for example, the state argued that anyone displeased with the restrictions on professorial speech could seek recourse “[at] the ballot box.”¹²⁶ The laws’ proponents similarly invoke political accountability in their appeals to the public. For example, Nate Hochman, writing in the Manhattan Institute’s City Journal, characterized critics as “suggest[ing] that public educators should be insulated from accountability and democratic oversight.”¹²⁷ Judicial responses to lawsuits challenging such restrictions have been mixed thus far. In cases involving college and university professors, courts have sided with plaintiffs, identifying an academic freedom exception to Garcetti that I discuss further in Part IV.¹²⁸ Courts have been less favorable to plaintiffs in the K–12 educational setting, concluding that primary and secondary school teachers are subject to Garcetti’s rule.¹²⁹ In the latter cases, however, plaintiffs have had some success in arguing that the laws are too vague to pass constitutional muster.¹³⁰

IV. Some Kernels of Hope

Although both UE theory and government speech doctrine have made substantial strides in the courts and the political branches, they are not invulnerable to limiting principles. Indeed, courts already have imposed or laid the groundwork for some boundaries on each doctrine’s reach. These aspects of precedent can, and should, be built on with substantive accountability among the lodestars in the process. I have explored these points in more detail elsewhere,¹³¹ and highlight a few aspects here.

Turning first to UE theory, there are a few respects in which the current case law leaves the door open for some substantive accountability-based limits. For example, the Supreme Court has not, as of yet, weighed in on the constitutionality of civil service protections. Indeed, Chief Justice John Roberts, writing for the Court in a 2010 case, noted that “[n]othing in [its] opinion . . . should be read to cast doubt on the use of what is colloquially known as the civil service system within independent agencies.”¹³² Roberts observed that many civil servants “would not qualify as ‘Officers of the United States’ who ‘exercise significant authority pursuant to the laws of the United States;’ ” accordingly, they may not “be subject to the same sort of [presidential] control.”¹³³ In a future case, the Court could decide the question that it has left open and affirm the constitutionality validity of civil service tenure protections. To its reasoning about the limited scope of civil servants’ roles, the Court might add one about the work that they do perform. Namely, much of it entails the production of knowledge that reflects expertise and evidence-based analysis—for example, generating scientific reports or undertaking audits or inspections. Such work creates much of the factual backdrop against which the public and other branches can judge elected officials. By guarding against political interference with knowledge production, civil service protections support substantive accountability.

Similar substantive-accountability based arguments can be made regarding other questions that the Supreme Court has not, to date, decided. This includes the constitutionality of the limited removal restrictions that currently apply to IGs and of the still more ambitious proposals to provide IGs with for-cause protection from removal.¹³⁴

As for government speech doctrine, the case law contains the seeds of an important limiting principle that I call the anti-distortion doctrine. It amounts to a wariness of conditions on state-sponsored knowledge production that would distort the nature of the sponsored programs or their communicative outputs. Perhaps the most overt use of the principle occurs in the 2001 case of Legal Services v. Velazquez.¹³⁵ The Velazquez Court invalidated a law restricting the types of arguments that congressionally funded legal services attorneys could make in litigation.¹³⁶ The Court observed that Congress had funded the attorneys not to transmit government speech but rather to represent private clients.¹³⁷ Having done so, Congress could not limit the stock of arguments from which the attorneys could draw to advise and to advocate for their clients. Such a limit, said the Court, “distorts the legal system by altering the traditional role of the attorneys” as zealous advocates for their clients.¹³⁸ Among the problems with such distortion is that it “prohibits speech and expression upon which courts must depend for the proper exercise of the judicial power.”¹³⁹

Garcetti itself contains some anti-distortion reasoning. The Garcetti Court left open the possibility of an exception for the expressive work of public school academics to the general rule that work product speech is unprotected. The Garcetti Court acknowledged that “[t]here is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence.”¹⁴⁰ An academic freedom exception is necessarily grounded in an anti-distortion principle, specifically in the notion that the state may not create or fund an institution of a type ordinarily characterized by academic freedom but then curtail that freedom.

CONCLUSION

The doctrines explored here undermine substantive accountability in the name of accountability. Those attempting to limit the reach of UE theory and government speech doctrine, whether in the courts, the political branches, or the realm of public debate, must understand that their appeal lies partly in their proponents’ insistence that the doctrines do not undercut accountability but in fact protect accountability. Highlighting the errors of that claim and the danger that the doctrines pose is one small but necessary step in any efforts to staunch their forward march.

98 S. Cal. L. Rev. 1321

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Heidi Kitrosser*

* William W. Gurley Professor, Northwestern University – Pritzker School of Law. I am very grateful to Erin Miller for inviting me to participate in the symposium for which I wrote this article, to Christina Koningisor for her wonderful turn as discussant for this piece, and to the student editors of the Southern California Law Review for their terrific work in organizing the symposium and editing this piece. I owe many thanks as well to Ronnell Anderson Jones and her colloquium students at the University of Utah Law School and to the faculty at the University of North Carolina Law School for inviting me to present this paper and for their thoughtful questions and comments.

Introduction

I. The Major Questions Doctrine and Major Questions Avoidance

A. The Major Questions Doctrine(s)

B. Major Questions Avoidance

“Slicing”

“Lumping”

“Glossing”

“Bypassing”

II. The Benefits and Costs of Major Questions Avoidance

A. Benefits

B. Costs

Administrative Burdens

Litigation Risks

Political Costs

III. Major Questions Avoidance and the Legitimacy of the Administrative State

A. Presidential Legitimacy

B. Legislative Legitimacy

C. Expert Legitimacy

D. Participatory Legitimacy

IV. Major Questions Anti-Avoidance

A. Ex Ante Anti-Avoidance

B. Ex Post Anti-Avoidance

Conclusion

98 S. Cal. L. Rev. 1497

Introduction

I. The Creation of State Judiciaries and the Supervisory Power

A. State Constitutional Roots

B. The Development of Modern State Supreme Courts

1. The Need for Reform

2. State Court Modernization

3. State Supreme Courts and State Governance

II. The Supervisory Power IN the U.S. and State Supreme Courts

A. State Supreme Court Supervisory Power

Uses

a. Adjudicative

i. Rights and Remedies

ii. Law Development

iv. Oversight

b. Non-adjudicative

i. Policymaking for the General Welfare

ii. Interbranch Engagement

Attributes

a. Freestanding

b. Lower Showing Needed

c. Discretionary

d. Flexible

e. Normative in Nature

B. U.S. Supreme Court Supervisory Power

Comparison

Judicial Administration and Constitutional Structure

III. Boundaries and Limits

A. Boundaries

Legalness

Proximity to the Judiciary

IV. Implications

A. Theoretical Implications

B. Normative Implications

Conclusion

98 S. Cal. L. Rev. 1543

Introduction

I. The Classic First Amendment

A. Speakers’ Rights and Listeners’ Rights

B. Of Speakers and Listeners

II. A “Right” Not to Listen

A. Converse Rights: Speakers and Listeners v. The State

B. Relational Rights: Speakers v. Listeners

Four Scenarios

A Right to Be Left Alone

C. Reconciliation: The State as Referee

III. Applications

A. Counterman, Stalking/Harassment, and Fighting Words

B. Hill, McCullen, and Avoiding Offense

C. Regulating the Internet

Conclusion

98 S. Cal. L. Rev. 1129

Introduction

I. Using Listener Interests to Put Free Speech Ahead of Academic Freedom

II. The Audiences of Scholarly Speech

A. Students

Classrooms and Other Curricular Settings