First Amendment Archives – Southern California Law Review

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 2025September 2025Yasmin 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.

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.

Fear and Free Speech

September 2025September 2025Helen Norton*

INTRODUCTION

Fear changes lives. And for this reason, fear sometimes changes the law.

Because of fear’s debilitating effects, the law often forbids behavior that causes its targets to fear for their physical safety. Think of the laws that prohibit threats in order to free their targets “to go about their own lives.”¹ Think too of stalking laws that restrict fear-engendering behavior that “violates basic social norms of privacy and consent by persisting even in the face of a lack of consent.”²

A different type of fear—speakers’ fear of the government’s punishment—shapes pivotal First Amendment doctrine. The U.S. Supreme Court focused on this fear in Counterman v. Colorado when it held that the First Amendment requires the prosecutor in a “true threats” case to establish the speaker’s recklessness—that is, that the speaker “consciously disregarded a substantial risk” that his statements would make his target fear for her physical safety.³ In so holding, the majority underscored that requiring such proof “reduc[es] an honest speaker’s fear that he may accidentally [or erroneously] incur liability,” thus “provid[ing] ‘breathing room’ for more valuable speech.”⁴

But this doctrinal choice is not without its costs, costs borne by the many targets of threats who lack access to evidence of the speaker’s interior mental state. This is the case, for example, of “[a] delusional speaker [who] may lack awareness of the threatening nature of her speech; a devious speaker [who] may strategically disclaim such awareness; and a lucky speaker [who] may leave behind no evidence of mental state for the government to use against her.”⁵

Free speech, of course, is not always free for everyone. A great deal of First Amendment law requires the targets of harmful speech to pay the price for the speaker’s freedom to speak and for the public’s freedom to receive that expression. To illustrate, the Supreme Court’s defamation jurisprudence sometimes requires innocent targets to bear the costs of reputation-damaging falsehoods when those targets cannot prove the speaker’s recklessness.⁶ So too did a grieving father pay, with his pain, for the protected expression of speakers who exploited his loss to amplify their religious and political views.⁷ Doctrinal choices are sometimes difficult because they require courts to pick between important, but incommensurable, values. When push comes to shove, First Amendment law generally chooses to protect speech on matters of public concern—the speech that lies at the core of the First Amendment—at the expense of its targets’ reputation and at the expense of its targets’ freedom from emotional cruelty.⁸

But different, and difficult, doctrinal choices arise when we recognize that speech interests sometimes lie on both sides of a First Amendment dispute, thus requiring courts to choose between important and commensurate values. As we will see, the fear induced by threats and by stalking can silence targets’ expression at least as directly and frequently as the fear induced by the prospect of the government’s punishment silences speakers’ expression. Consider the many targets who stop going out in public, stop using the phone, stop engaging online, stop making music and other forms of art, and stop participating in public life.⁹ Identifying free speech as a “preferred” constitutional value should thus require attention to the free speech costs of law’s failure to adequately protect the targets of threats and stalking.¹⁰

Yet an ostensibly speech-protective Supreme Court failed to acknowledge those costs in Counterman v. Colorado, a case that required it to define the contours of the category of threats unprotected by the First Amendment. “True threats” cause their targets to fear for their physical safety—and this fear, in turn, disrupts those targets’ lives.¹¹ For these reasons, the Supreme Court has long treated true threats as among the handful of speech categories entirely unprotected by the First Amendment.¹² Until Counterman, however, the Supreme Court had never directly engaged the question of how to determine when speech constitutes an unprotected threat. In the meantime, lower courts disagreed over whether the universe of unprotected threats should be determined through a subjective, or instead, an objective inquiry. Some took a subjective approach, requiring the prosecution (or, in a civil case, the plaintiff) to prove that the speaker intended to make his target fear for her physical safety, thus privileging defendants’ speech interests.¹³ A majority of lower courts instead approached the problem from the target’s perspective, adopting an objective approach that asked whether the speaker’s statement would cause a reasonable person in the target’s position to fear for their physical safety, thus privileging targets’ interests—including, but not limited to, their speech interests.¹⁴

The Supreme Court resolved this question in Counterman by requiring a subjective standard, holding that speech communicating a serious intent to commit unlawful violence constitutes an unprotected “true threat” only when the prosecution can prove the defendant’s recklessness—in other words, the defendant’s conscious disregard of the risk that his statements could make his target fear for her physical safety.¹⁵ The Counterman Court justified this choice as speech-protective, emphasizing that speakers’ expression might be chilled if they fear punishment under a legal standard too quick to view their speech as threatening.¹⁶

But this was not the only speech-protective choice available to the Court. In choosing to privilege the defendant’s speech over the target’s reasonable fear for their physical safety, the majority also effectively chose to privilege the defendant’s speech over the target’s expression. And just as the public loses valuable speech when the prospect of governmental punishment deters speakers from speaking, so too does the public lose valuable speech when the law permits the silencing of targets’ speech.¹⁷

To be sure, we should worry about doctrinal choices that deter valuable speech by making a potential speaker fear that the government will punish them for what they intended as a joke or as political rhetoric. Recall, for example, eighteen-year-old Robert Watts, who was convicted of threatening President Lyndon B. Johnson during the Vietnam War for saying to laughing listeners at a political rally on the Washington, D.C. Mall that “I have already received my draft classification as 1–A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.”¹⁸ The Supreme Court overturned Watts’s conviction, holding that his speech constituted “political hyperbole” rather than a “true threat” against the president.¹⁹

At the same time, however, we should also worry about doctrinal choices that enable the silencing of targets’ expression by insufficiently protecting those targets from reasonable fear for their physical safety. Think now of musician C.W., the victim in Counterman, who received hundreds of disturbing messages from a complete stranger who repeatedly resisted her efforts to block him. As a result, C.W. stopped walking alone, stopped attending public events, and canceled her own public musical performances.²⁰ Think too of the many threats to journalists and election officials that silence and suppress their work foundational to a free and fair democracy.²¹ The speech-silencing effects of fear-inducing speech are by no means limited to artists and journalists: they extend to all targets, because all are potential speakers.

Courts often resolve difficult First Amendment disputes—including that in Counterman, which called upon the Court to define the contours of a category of unprotected speech—by concluding that the defendant’s speech interests outweigh the target’s substantial but incommensurate interests in reputation or peace, among other values. But threats and stalking cases present even greater challenges for those who consider speech to be a preferred value because commensurate speech interests lie on both sides of these disputes.

The First Amendment issues triggered by the regulation of fear-inducing speech thus require hard choices between speakers’ and targets’ free speech interests, choices that also affect the public’s access to valuable speech. This Article both criticizes the Court’s approach in Counterman and offers a guide to addressing targets’ expressive interests in threats and stalking cases after Counterman. More specifically, it seeks to foster a mindset for considering the First Amendment problems involving fear-inducing speech that attends to targets’ expression as much as defendants’ expression. To this end, it examines the ways in which threats and stalking can silence targets’ speech and deter their participation in public life, and then considers available choices that attend to targets’—not just defendants’—expressive interests.

I. Fear on Both Sides, Speech on Both Sides

This Part starts by describing concerns that fear of government punishment will cause speakers to censor themselves, thus “chilling” their speech. It then explains how the fear induced by threats and stalking can cause their targets to engage in self-censorship of their own.

A. Speakers’ Fear of the Government

“A chilling effect,” Frederick Schauer explained, occurs “when individuals seeking to engage in activity protected by the first amendment are deterred from so doing by governmental regulation not specifically directed at that protected activity.”²² In other words, concerns about chilling effects anticipate that government’s efforts to modify some unprotected behavior will inadvertently chill protected behavior. As Leslie Kendrick observed, “intuition suggests that some legal rules will chill speech. The further a law encroaches on protected speech, the greater the risk that such speech will be penalized. The more likely speakers are to be penalized, the less they will speak.”²³

Because chilling effects harm speakers—and the rest of us, too—by stifling the delivery of opinions, facts, and ideas, the Court’s instrumental concerns about chilling effects not infrequently drive its doctrinal choices.²⁴ Under its defamation jurisprudence, for example, the more valuable the speech potentially chilled by the prospect of defamation liability, the higher the bar for proving the mental state required to establish such liability.²⁵ This doctrine thus requires defamation plaintiffs who are public officials or public figures to show that a speaker made a defamatory statement with “ ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not”—before they can establish the speaker’s liability for reputation-damaging falsehoods.²⁶ The Court has explained this doctrinal innovation as necessary to ensure breathing space for speech critical of those in the public eye or otherwise on matters of public concern—the speech at the core of the First Amendment.²⁷

In the same vein, the Counterman Court explained its doctrinal choice as “based on fear of ‘self-censorship’—the worry that without such a subjective mental-state requirement, the uncertainties and expense of litigation will deter speakers from making even truthful statements.”²⁸ In explaining its decision to require the prosecution in a “true threats” case to show the defendant’s reckless mental state, the Court catalogued the ways in which the prospect of the government’s punishment can chill a speaker’s expression by instilling fear of various consequences: “The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.”²⁹

True, so far as it goes. But nowhere did the Counterman majority similarly detail targets’ fear for their physical safety and the resulting costs of such fear—costs that include the silencing of their speech along with many other life disruptions. The silencing of targets’ speech harms the general public, too, by denying it the expression that targets would otherwise deliver.³⁰ The majority instead simply noted the “profound harms” imposed by threats without specifying those harms.³¹

Judges (like other human beings) sometimes mask the difficulty of hard trade-offs—making those trade-offs feel considerably easier than they actually are—by failing to identify and weigh the costs of their choices. As Mary Anne Franks observed, courts’ “concern about chilling effects tends to be highly selective.”³² Indeed, even as the Counterman majority described

itself as balancing competing interests, it particularized only speakers’ interests.³³

The majority’s choice may have been motivated not only by its instrumental concerns about chilling defendants’ expression but also by deontic commitments to punish only morally blameworthy speakers. In this vein, the majority described “reckless defendants” as “morally culpable” because they “have done more than make a bad mistake. They have consciously accepted a substantial risk of inflicting serious harm.”³⁴ But moral principles cut both ways here, too, as the targets of threats themselves are often entirely innocent victims who experience life-changing harm regardless of the speaker’s mental state. Think again of C.W., the victim in Counterman whose daily existence and musical career were “upended” by hundreds of disturbing messages from a man she had never met.³⁵ Think too of journalists and election officials targeted by threats who live in fear for their, and their families’, safety for simply doing their jobs—jobs foundational to a functioning democracy.³⁶ That we can identify deontic as well as instrumental concerns on both sides of these disputes adds to the difficulties in deciding them, difficulties that judges should not obscure.³⁷

B. Targets’ Fear for Their Physical Safety

Threats and stalking are related but distinct in important ways. I use the term “threat” to mean speech that causes its target to fear for their physical safety.³⁸ And by “stalking,” I mean repeated and unwelcome conduct, contact, or communication that causes its target fear or other severe emotional distress.³⁹ Both threats and stalking can inflict life-disrupting fear. But they often do so in different ways: all threats, by definition, involve speech, while stalking sometimes involves only conduct, sometimes only speech, and sometimes a mix of the two.⁴⁰ And although a speaker may be held liable for a single threatening statement or for many, stalking laws impose liability only for “repeated” unwelcome conduct, contact, or communication.⁴¹

Fear for one’s physical safety literally changes lives—and not for the better, as fear is among the most debilitating of human experiences. Consider psychologist Abraham Maslow’s hierarchy of human needs.⁴² Foundational to this hierarchy is our need for physical survival in the form of food, water, shelter, and physical security: only when this need is satisfied can we pursue higher-level social and emotional needs like intimacy, belonging, self-esteem, confidence, and more.⁴³ For these reasons, requiring a target to pay for a defendant’s free speech with fear for their physical safety exacts a significantly higher price than requiring them to pay for a defendant’s free speech with their reputation or with their freedom from emotional cruelty.

Fear-inducing speech inflicts harm both physical and mental. One study, for example, reported “high levels of psychopathology among stalking victims,” whose overall psychological distress was about three times higher than that of the general population.⁴⁴ Medical evidence demonstrates the life-changing effects of chronic fear that include insomnia and sleep disruptions,⁴⁵ immune system dysfunction,⁴⁶ gastrointestinal issues like ulcers and irritable bowel syndrome,⁴⁷ sexual dysfunction and decreased fertility,⁴⁸ and accelerated aging.⁴⁹ Medical evidence also establishes that chronic fear is associated with generally poor mental health,⁵⁰ with mental health injuries that include anxiety,⁵¹ depression,⁵² post-traumatic stress disorders,⁵³ panic and obsessive compulsive disorders,⁵⁴ impaired formation of long-term memories,⁵⁵ and suicidal ideation.⁵⁶ One study found that those who reported higher levels of fear were 50% more likely to show signs of a mental health disorder and 90% more likely to have symptoms of depression than those who reported lower levels of fear.⁵⁷

Moreover, the targets of threats and stalking often fear for their physical safety for very good reason. Criminal justice scholar Mary Brewster, for instance, canvassed the experiences of victims of intimate partner violence to conclude that threats served as “a strong and statistically significant predictor of violence.”⁵⁸ By causing targets to fear for their physical safety, threats and stalking not only inflict physical and mental health injuries, but also change the ways in which those targets live their lives.⁵⁹ Stalking, for instance, often forces its targets to miss work,⁶⁰ to leave their jobs, or their homes.⁶¹

Most relevant to this Article, threats and stalking also change their targets’ lives by causing them to speak less, to speak differently, and to participate less in public life. Indeed, the targets of threats and stalking commonly, and reasonably, respond to threats to their physical survival by making themselves silent and invisible.⁶² To illustrate, recall the musician’s experience in Counterman: C.W. stopped walking alone, stopped attending other musicians’ events, and canceled her own performances.⁶³ Danielle Keats Citron explains how stalking silences protected expression more generally:

[Cyber stalking victims] stop using their phones. Victims change how they express themselves; they are less controversial, more muted, and connect with fewer people. Their withdrawal from online engagement isolates them from friends and family. When victims change their phone numbers to prevent stalkers from calling them, they become unreachable.⁶⁴

Consider too the many journalists targeted by threats of death or rape. One recent study found that one in ten journalists surveyed had been threatened with death in the preceding year because of their work;⁶⁵ another found that three quarters of female journalists surveyed reported that “they had experienced online abuse, harassment, threats, and attacks.”⁶⁶ These threats interfere with journalists’ watchdog and educator functions,⁶⁷ inflicting injury not only to their individual targets, but also to a public’s hopes for a healthy democracy. Free press scholar Erin Carroll has detailed more specifically how threats inhibit and distort the reporting that journalists produce and that the public thus receives:

Obstruction operates on at least three levels: the story, the beat, and the pipeline. At the story level, threats and abuse prevent journalists from covering particular events or incidents. At the beat level, perpetual abuse around broad topics like politics, economics, and immigration dissuades reporters from aggressively covering these beats or even covering them at all. At the pipeline level, violence leads reporters to leave or consider leaving the profession entirely.⁶⁸

Illustrating these dynamics more specifically, one study found that 37% of female journalists who reported that they had been threatened, harassed, or attacked indicated they avoided certain stories; 8% changed the content or perspectives of the news that they write about; 16% considered requesting a transfer or different beat and 6% requested a transfer or different beat; and 29% indicated the threats and attacks they received made them think about getting out of the profession.⁶⁹

As additional examples, threats against election officials deter those officials from doing work necessary to the democratic self-governance at the core of the First Amendment. A nationwide study of local election officials found that more than one in three of those surveyed reported that they have experienced threats, harassment, or abuse because of their work; more than half reported that they worry about their colleagues’ safety; more than a quarter worried about their own physical safety; and more than a third reported that they knew of local election officials who had left their jobs at least in part because of fear for their safety.⁷⁰ Not surprisingly, many local jurisdictions now report high levels of turnover among their election officials.⁷¹

II. Attending to Targets’ Free Speech Interests in Threats and Stalking Cases

As Frederick Schauer observed, courts often choose to err on the side of overprotecting defendants’ speech when crafting First Amendment doctrine:

The chilling effect doctrine reflects the view that the harm caused by the chilling of free speech (or other protected activity) is comparatively greater than the harm resulting from the chilling of the other activities involved. And, the logical and necessary mandate of the chilling effect doctrine is that legal rules be formulated so as to allocate the risk of error away from the preferred value, thereby minimizing the occurrence of those errors which we deem the most harmful.⁷²

The Counterman majority made precisely this choice when it required proof of a speaker’s recklessness as predicate to identifying a “true threat” unprotected by the First Amendment.⁷³

Again, that is a choice—but by no means the only justifiable, and speech-protective, choice. Because speech interests lie on both sides of threats and stalking cases, those cases require courts to choose not only whether to prefer speakers’ expression over incommensurate harms experienced by targets (like harms to their mental and physical health and their quality of life) but also whether to protect the speaker’s expression at the expense of the target’s expression. This Part considers possibilities for treating targets’ and speakers’ expressive interests in threats and stalking cases with at least the same regard.

A. The First Amendment Argument for Symmetrical Concern for Speakers’ and Targets’ Expressive Interests in Threats Cases

Neither the Counterman majority nor Billy Counterman’s own briefing offered any evidence that anyone’s speech—much less Counterman’s—had been chilled by an objective listener-centered approach (like Colorado’s) for identifying unprotected true threats.⁷⁴ As dissenting Justice Barrett observed, “objective tests are effectively the status quo today, yet Counterman still struggles to identify past prosecutions that came close to infringing on protected speech.”⁷⁵ Nevertheless, concern about the law’s chilling effect—that is, the “overdeterrence of benign conduct that occurs incidentally to a law’s legitimate purpose or scope”⁷⁶—is legitimate, indeed intuitively powerful, as a background assumption about how the world works.⁷⁷ For this reason, the Counterman majority was not wrong to worry about chilling effects even absent anecdotal or empirical evidence of chilling.

But courts committed to robust free speech protections should also credit the equally valid premise that a legal standard that fails adequately to protect the targets of threats and stalking will enable the silencing of targets’ speech. Indeed, the First Amendment case for attending to targets’ free speech interests is at least as strong as that for attending to chilling concerns given that targets’ fear for their physical safety demonstrably deters their expression.⁷⁸ Just as a speaker’s First Amendment defense need not include evidence that their—or anyone’s—speech was chilled by the prospect that they could be held liable for objectively terrifying statements, a prosecutor or plaintiff need not prove that the target’s—or anyone’s—speech was silenced by their reasonable fear for their physical safety. In short, when developing and applying First Amendment doctrine, courts should weigh the free speech costs borne by the targets of threats and stalking as heavily as the free speech costs borne by speakers chilled by the prospect of the government’s legal action.

The First Amendment argument for this approach gathers additional force when we recognize that targets of threats and stalking cannot meaningfully rely on the traditional self-help remedies of counterspeech and avoidance.⁷⁹ For example, only 9% of stalking victims surveyed who tried to discourage their stalkers reported that their engagement improved the situation.⁸⁰ A target’s engagement with a stalker through counterspeech can aggravate and escalate the stalker’s behavior⁸¹ and can fuel a stalker’s delusions of an actual relationship with the target by “gratify[ing] the stalker’s wishes to have, and to hold onto, a relationship and reinforc[ing] the pursuit.”⁸² For these reasons, targets are often counseled not to engage with stalkers.⁸³ Nor, due to limited resources, can many targets protect themselves through avoidance. “[M]oving to a new home or changing jobs or schools to avoid threatened violence are less likely to be options for domestic violence victims than for other threat victims,” legal scholar Jessica Miles explains.⁸⁴

A target-centered approach is not without precedent, as the Supreme Court sometimes chooses to shape categories of less-protected speech in ways that privilege listeners’ interests when those listeners cannot protect themselves from harmful speech through rebuttal or escape: this is often the case when speakers enjoy advantages of information or power (or both) over their listeners.⁸⁵ Recall the Court’s defamation jurisprudence, which requires public officials and public figures to show a speaker’s recklessness (in other words, “actual malice”) before imposing liability for that speaker’s reputation-damaging falsehoods, while relaxing the showing required of private-figure plaintiffs with less ability to remedy reputational harm themselves through counterspeech. More specifically, the Court enables private figures to recover presumed and punitive damages for defamatory falsehoods on matters of private concern without any showing of the speaker’s recklessness.⁸⁶ While this more target-friendly choice rests in great part on the lower First Amendment value of reputation-damaging falsehoods that do not address matters of public concern, it also turns on private figures’ more limited ability (compared to public officials) to protect their reputational interests through rebuttal:

Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater.⁸⁷

When balancing speakers’ expressive interests against private figures’ non-speech (that is, reputational) interests for defamation purposes, the Court thus requires targets to prove no more than a speaker’s recklessness—and sometimes only their negligence. More powerful still is the First Amendment argument for privileging targets’ free speech interests over those of speakers’, especially when those targets cannot meaningfully protect themselves through the traditional self-help remedies of exit and voice. In other words, although recklessness might be an appropriate First Amendment compromise in threats cases if courts were simply balancing defendants’ speech interests against targets’ incommensurate non-speech interests in health and quality of life, recklessness is a much less obvious First Amendment choice if we attend to both parties’ speech interests.

As an illustration, consider the Court’s listener-centered understanding of the First Amendment that treats “false or misleading” commercial speech as entirely unprotected by the First Amendment because of the harm it inflicts on targets’ (consumers’) First Amendment interests in making informed and autonomous decisions regardless of the commercial speaker’s mental state.⁸⁸ This listener-centered approach also recognizes that consumers cannot meaningfully protect themselves from these informational harms, because commercial actors have considerably greater access to accurate information about their own goods and services than do consumers.⁸⁹ For these reasons, many false advertising laws have long prohibited false or misleading commercial speech—regardless of the commercial speaker’s mental state—because of the harm posed to consumers as the targets of such speech.⁹⁰

Because fear—and speech—are on both sides of threats and stalking cases, a robust understanding of the Free Speech Clause supports a standard similarly attentive to targets’ expressive interests. To be clear, my point is not that the First Amendment necessarily requires a listener-centered standard when the free speech interests of speakers and their targets collide. But neither does the First Amendment require a speaker-centered standard when we must choose between speakers’ and targets’ expression. I suggest instead that the First Amendment permits—indeed, supports—governmental choices to privilege targets’ free speech interests in certain settings. To this end, I urge that the First Amendment doctrine of threats and stalking cases treat the free speech costs borne by speakers and targets with at least equal concern. This symmetrical concern for speakers’ and targets’ expression in threats cases recognizes that objective listener-centered standards advance free speech as least as much as subjective speaker-centered standards. This approach thus understands the First Amendment to permit legislatures or courts to choose from a range of speech-protective standards such that the Counterman Court was wrong to deny Colorado’s Supreme Court that choice.

What might this symmetrical concern look like in practice? The rest of this Article identifies some possibilities.

B. The Counterman Court’s Missed Opportunity: Defining Unprotected True Threats Through an Objective Target-Centered Standard

Start with the road not taken by the Counterman majority: the Colorado Supreme Court’s objective target-centered approach for identifying unprotected true threats. Developed in a case involving high school students’ heated late-night Twitter (now known as “X”) argument shortly after a local school shooting, that context-driven standard required courts to consider the surrounding circumstances to determine whether “an intended or foreseeable recipient would reasonably perceive [the statement(s)] as a serious expression of intent to commit an act of unlawful violence.”⁹¹ In my view, this test treated speakers’ and targets’ free speech interests with equal concern by requiring courts to consider multiple factors that attend to both sets of interests.⁹² These factors included:

The statement’s role in any broader exchange or events—for example, whether the statement “was spontaneous or [instead] responsive to some other communication,” where statements that matched the “overall tone” of a conversation in which it joined were less likely to be experienced as objectively terrifying.⁹³
The medium or platform through which the statement was communicated (including any “distinctive conventions or architectural features”)—where, for example, “prevailing norms in a particular genre” or forum might “recast violent language in a less threatening light.”⁹⁴
The manner in which the statement was conveyed (“e.g., anonymously or not, privately or publicly”⁹⁵)—in which, depending on the context, the speaker’s anonymity and the choice to personally target the statements rather than direct them to a large public audience might cause a reasonable target to experience the statements as threatening.
Any relationship between the speaker and target—including any history of violence, the speaker’s awareness of the target’s particular vulnerabilities, or the target’s awareness of the speaker’s patterns of speech or emotional state.⁹⁶
The audience’s subjective reaction: Contrast Watts v. United States, in which the Court relied in part on the audience’s laughter to identify a statement as protected political hyperbole rather than an unprotected threat⁹⁷with statements that prompt their audience to report their concerns about potential violence with law enforcement or trusted adults.⁹⁸

C. Target-Attentive Approaches to Threats Cases After Counterman

Unless and until the Court chooses to revisit its decision in Counterman, however, an objective context-driven standard is precluded in threats cases, which now require prosecutors and plaintiffs to establish a speaker’s recklessness before imposing criminal or civil punishment.⁹⁹ That the same First Amendment standard applies to both criminal and civil law settings (like civil protection orders) only raises the expressive stakes of this requirement.¹⁰⁰ Counterman and its limitations now present new choices among available approaches, some more attentive to targets’ free speech interests than others.

First, because Counterman establishes recklessness as a First Amendment floor and not a ceiling,¹⁰¹ legislatures remain free to impose even higher levels of mens rea (like intent or knowledge) as a condition of criminal or civil liability. And some do.¹⁰² But Counterman does not require legislatures to so choose. Attention to targets’ free speech interests thus supports the legislative choice, consistent with free speech values, not to require any subjective mental state greater than recklessness, which already leaves targets unprotected in the many threats cases in which targets lack access to evidence of the defendant’s interior mental state.¹⁰³

Second, courts’ recklessness determinations in threats cases can sometimes be informed by targets’ experiences. The Counterman majority articulated its recklessness standard as focused on the defendant’s “insufficient concern with risk, rather than awareness of impending harm.”¹⁰⁴ As the Court explained in an earlier decision, “[t]hat risk need not come anywhere close to a likelihood. Speeding through a crowded area may count as reckless even though the motorist’s ‘chances of hitting anyone are far less [than] 50%.’ ”¹⁰⁵ To demonstrate a defendant’s conscious disregard “of a substantial risk” that his statements would cause his target to fear for her physical safety, prosecutors and plaintiffs may present circumstantial evidence of recklessness—that is, evidence that the defendant ignored “obvious” risks or knew of facts that would have made the danger obvious to someone in the defendant’s situation.¹⁰⁶ To be sure, the defendant remains free to introduce evidence that they were unaware of risks that others would find obvious.¹⁰⁷ Whether these risks are obvious to the defendant can sometimes be informed by the target’s experience and behavior. For instance, a defendant’s awareness that his target had repeatedly blocked his calls, texts, or other messages—an awareness perhaps demonstrated by his creation of new accounts from which to message his target—can show that he was aware of “obvious” risks that his target experienced his communications as threatening. So, too, could his awareness that his target had changed her expressive (or other) behavior in response to his statements.¹⁰⁸

Of course, a target could ensure that a speaker was aware of this risk by telling him that she experienced his statements as threatening—but, as discussed above, such engagement can itself be existentially dangerous.¹⁰⁹ This remains among Counterman’s major deficits in choosing a recklessness inquiry focused on the defendant’s interior mental state rather than threats’ speech-silencing effects on their targets.

D. Target-Attentive Approaches to the Many Stalking Cases That Do Not Involve Threats and Where Counterman Thus Does Not Apply

As explained above, stalking laws protect targets from speech-silencing and life-disrupting fear in ways related to, but distinct from, the protections offered by threats laws.¹¹⁰ While threats laws address speech that causes its target to fear for their physical safety, stalking laws address fear induced by repeated and unwelcome conduct, contact, or communication. Many stalking cases thus do not, and need not, turn on any allegedly threatening content of the speaker’s communications. In those cases, the default First Amendment rules apply—not Counterman’s recklessness requirement.¹¹¹ Nevertheless, because Counterman addressed threats in the context of a stalking case, the danger remains that courts will inappropriately apply its recklessness standard to stalking cases that do not involve threats.¹¹²

So the first step in attending to stalking targets’ free speech interests is to make sure that courts understand that Counterman’s recklessness requirement does not apply to stalking cases that do not allege unprotected true threats.¹¹³ The second step is to engage targets’ free speech interests when applying the appropriate First Amendment analysis in the many stalking cases that do not involve threats—and where the free speech costs to the target remain substantial while the defendant’s expressive interests are low (since the repeated and unwelcome nature of stalking, rather than its content, often induces fear).¹¹⁴

To illustrate how courts’ assessment of First Amendment challenges to the enforcement of anti-stalking laws can attend to targets’ free speech interests, consider the following fact patterns:

Defendant (D) repeatedly follows and watches Target (T) as they walk to and from their car to their office, gym, grocery store, and home;
D calls T every morning and hangs up as soon as they answer;
D calls T every morning and says, “Hello, beautiful” when T answers; and
D calls T every morning and says, “Die” when T answers.

Each of these fact patterns involves repeated and unwelcome behaviors that, depending on the circumstances, could cause a reasonable person to experience fear and thus violate a state’s stalking statute.¹¹⁵ But some of the fact patterns do so in ways that involve no communication—or if they do involve communication, they do so regardless of the communication’s content.

In short, as this Section explains, the government’s prosecution of conduct normally triggers no First Amendment review. If a defendant nevertheless seeks to challenge the prosecution of conduct on First Amendment grounds, the defendant would have to establish that their conduct was sufficiently expressive to warrant First Amendment protection. If a court determines the conduct to be expressive, then intermediate scrutiny applies. If a defendant challenges the content-neutral prosecution of speech (for example, repeated and unwelcome communications regardless of any threatening content), then again intermediate scrutiny applies. These analyses can, and should, foreground targets’, as well as speakers’, free speech interests.

Stalking That Takes the Form of Conduct Only

Fact patterns A (repeatedly following and watching the target) and B (repeatedly dialing the target’s phone number and hanging up without speaking) involve stalking that takes the form of repeated unwelcome conduct, not speech, since the speaker makes no oral or written communication. Consider these additional illustrations of such courses of conduct: a speaker that “send[s] envelopes of unknown white powder to the victim in the mail;” “repeatedly infect[s] the victim’s computers with viruses;” “open[s] unwanted on-line dating profiles under the victim’s identity;” or “arrange[s] every day for deliveries to be made at the victim’s home at all hours of the night.”¹¹⁶

Here, the government seeks to regulate what the defendant did, not what they said.¹¹⁷ (As Genevieve Lakier and Evelyn Douek explain, “the term stalking was borrowed from the hunting context to emphasize the similarities between the way a hunter stalks their prey and the practices of surveillance and following that characterized the first well-publicized stalking cases.”¹¹⁸) Stalking laws thus frequently address conduct with only incidental burdens on expression—triggering (and generally satisfying) no more than intermediate scrutiny.

More specifically, the First Amendment analysis of the government’s regulation of such repeated and unwelcome conduct should either be rational basis review (if the court determines the conduct to be nonexpressive) or intermediate scrutiny (if the court determines the conduct to be expressive).¹¹⁹ Determining whether regulated conduct is sufficiently expressive to trigger intermediate scrutiny generally turns on whether the actor intends to communicate a message through their conduct and whether onlookers reasonably understand the actor to be delivering a message through their conduct.¹²⁰

When a speaker repeatedly follows and watches their target, do they intend to communicate a message, and does their target understand them to be communicating a message? If, depending on the facts, the answer is “no,” deferential rational basis review will apply to the government’s enforcement.¹²¹ Perhaps some will take the view, however, that this conduct is expressive. For example, a speaker who repeatedly calls and hangs up on their target without saying anything (maybe only breathing heavily) might seek to send, and might be understood as communicating, a message of possessiveness, hostility, or even love toward the target such that application of the stalking law regulates repeated and unwelcome conduct that incidentally burdens expression.¹²² Here, too, the First Amendment analysis should remain attentive to the target’s expressive interests. For example, the application of stalking law to this conduct satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of conduct that has little if any First Amendment value of its own.¹²³

The Supreme Court’s analysis of First Amendment challenges to the enforcement of hate crimes laws to punish certain acts of violence illustrates these dynamics. Even when a defendant’s violence might seek to communicate, and be understood as communicating, a message of hatred based on the target’s protected class status, the Court has described hate crimes laws as the government’s constitutionally permissible regulation of conduct.¹²⁴ Along the same lines, the Court has stated that the First Amendment poses no bar to the government’s regulation of verbal harassment in the workplace that “produce[s] a violation of Title VII’s general prohibition against sexual discrimination in employment practices.”¹²⁵ In these cases, the Court did not state whether the regulated conduct—violent hate crimes and workplace harassment—was sufficiently expressive to trigger intermediate scrutiny, suggesting instead that the conduct did not merit First Amendment protection regardless of the review applied.¹²⁶ Lower courts have taken similar approaches, for example, when holding that laws prohibiting the physical obstruction of reproductive health care facilities to ensure access to lawful health care services satisfy intermediate scrutiny even though the regulated obstruction may seek to communicate a message and be understood as communicating a message.¹²⁷

Stalking That Takes the Form of Communications That Instill Fear Regardless of Their Content

Turn next to stalking prosecutions of communications that cause fear because of their repeated and unwelcome nature—in other words, because of those communications’ frequency, volume, or persistence rather than their content.¹²⁸ This can be the case, for example, of fact pattern C, where the defendant called the target every day with prosaic messages like “Hello beautiful.” Or by leaving a daily message on the target’s answering machine playing the target’s favorite song. Along the same lines, consider a speaker who made:

“multiple [phone calls] throughout the evening, often ‘back-to-back,’ ” and “into the early morning hours,” despite being told that he “needed to stop calling” and “I don’t want you calling this house anymore.” When the complainant unplugged her phone, the defendant then called each of her parents and he was again told not to call. A few days later, he showed up at the complainant’s apartment building and “stood outside for a couple of minutes,” until he was directed to leave by security. Then he returned the following day again, and “security informed him that he was not permitted in the building.” Several months later, he again placed “nonstop calls” to the complainant from 1:30 a.m. to 3:00 a.m., and during that time he again showed up to the complainant’s apartment and tried calling her from the apartment’s call box. He then tried sneaking into the apartment building to get to the complainant, but was again thwarted. Notice that we have not said one word about the content of the defendant’s speech . . . because it was immaterial to his stalking conviction. He could have been trying to sell his victim a vacuum cleaner and the above actions would still have amounted to stalking.¹²⁹

The content-neutral regulation of such repeated and unwelcome communications again triggers intermediate scrutiny, in which courts again assess whether the restriction is narrowly tailored to serve a significant government interest. Courts undertaking this intermediate scrutiny consider, among other things, whether the government’s content-neutral regulation leaves open ample alternative means of expression.¹³⁰ Moreover, the Supreme Court has made clear that the government’s content-neutral speech regulation “need not be the least restrictive or least intrusive means of” achieving its interests; instead, the government’s content-neutral regulation of speech satisfies intermediate scrutiny when it advances a substantial government interest that would otherwise be achieved less effectively.¹³¹

Here, too, this analysis can and should foreground targets’—not just speakers’—free speech interests. The content-neutral application of stalking law to repeated and unwelcome communications regardless of their content satisfies intermediate scrutiny when the government’s regulatory interests are unrelated to the suppression of ideas and when the enforcement action instead seeks to address the life-disrupting—including speech-silencing—effects of repeated and unwelcome communications. That the traditional self-help remedies of exit and voice are so often ineffective—and indeed, frequently dangerous—for their targets further support the enforcement of stalking law as a narrowly tailored response.

Stalking That Takes the Form of Threatening Speech

Depending on the circumstances, fact pattern D (daily messages telling the target to “die”) might support a content-neutral stalking prosecution based on the communications’ repeated and unwelcome time, place, and manner, regardless of their content. And depending on the circumstances, fact pattern D may also support prosecution as true threats, which now requires proof of the defendant’s conscious disregard of the risk that his statements were causing his target to fear for her physical safety in addition to proof of each of the statutory elements. Note that these two possibilities require prosecutors and plaintiffs, as a strategic matter, to choose between distinct theories that trigger different First Amendment analyses.¹³²

Stalking That Involves Both Conduct and Speech

The foregoing examples illustrate how the variety of repeated and unwelcome behaviors that constitute stalking can invite enforcement under different theories that trigger distinct First Amendment analyses. Some fact patterns involve repeated and unwelcome fear-inducing conduct—and, depending on the facts, that conduct may or may not be expressive. Some involve repeated and unwelcome speech that induces fear not because of its content but because of its repeated and unwelcome time, place, or manner. Some involve repeated and unwelcome speech that induces fear at least in part because of its threatening content.¹³³ And some fact patterns may involve combinations that invite prosecutors and plaintiffs to make strategic choices among multiple theories.¹³⁴ Whatever the First Amendment analysis, however, it should include attention to targets’, as well as defendants’, expressive interests.

Conclusion

Speakers who fear the prospect of the government’s punishment often express themselves less—or express themselves differently—than they would if they were not fearful. This, in turn, harms the speaker’s and the public’s First Amendment interests by stifling the delivery of opinions, facts, and ideas.

At the same time, targets fearful for their physical safety at the hands of a speaker often speak less, and speak differently, than they would if they were not fearful. And this, too, harms both the target’s and the public’s First Amendment interests.

Fear, and speech, are thus on both sides of threats cases and also many stalking cases. Courts’ doctrinal choices in threats and stalking cases sometimes chill speakers’ expression. And sometimes they instead permit the silencing of targets’ speech. A robust commitment to free speech, in my view, requires attention not only to the speech deterred by legal standards that are too quick to punish speakers but also to the speech silenced when the law fails adequately to protect the targets of threats and stalking from reasonable fear for their safety.

When courts ignore targets’ free speech interests to privilege defendants’ free speech interests, they pretend to make hard First Amendment problems easy. But principled problem-solving requires that we take care to recognize and explain what makes difficult problems difficult, as is the case here, where we must choose between speakers’ and targets’ important free speech interests.

Courts must, and do, make choices all the time when calibrating the categories of unprotected speech (for example, in true threats cases), and when otherwise applying First Amendment doctrine (for instance, in stalking cases that do not allege true threats). The Court’s choice in Counterman to privilege speakers’ free speech interests over targets’ was a choice—but that choice was neither inevitable nor necessarily speech-protective. When we illuminate, rather than obscure, the free speech injuries experienced by the targets of threats and stalking, we can identify doctrinal choices that attend to targets’ expressive interests as well as defendants’.

98 S. Cal. L. Rev. 1351

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Helen Norton*

* University Distinguished Professor and Rothgerber Chair in Constitutional Law, University of Colorado School of Law. Thanks to RonNell Andersen Jones, Nelson Tebbe, Alan Chen, Danielle Keats Citron, Yasmin Dawood, Margot Kaminski, Christina Koningisor, Margaret Kwoka, Genevieve Lakier, Lyrissa Lidsky, Toni Massaro, Joe Michaels, Francesca Procaccini, Blake Reid, Scott Skinner-Thompson, Phil Weiser, and the participants at Yale Law School’s Free Expression Scholars Conference and the University of Southern California Gould School of Law’s symposium on “The First Amendment and Listener Interests” for their insightful comments and questions. Thanks, too, to Kenzie Larrenaga, Devin Schultze, Olivia Sharp, and Claire Power Tate for outstanding research assistance.

Remarks on Academic Freedom and Free Speech: Reflections on Blocher

September 2025September 2025Rebecca L. Brown*

Joseph Blocher’s article is a rich contribution to our thinking about campus speech.¹ It takes the academic endeavor seriously—both for its rights and for its responsibilities—while simultaneously warning of its fragility under the threat of strong free speech claims.

Professor Blocher struck a poignant note with his insight that the value of academic freedom needs defending. He reminds us that public trust in academic judgment is diminished or gone. That is a devastating observation because if campus speech problems are to be addressed responsibly, it is only academic judgment that will get us there. Without trust in it, solutions seem elusive.

But his article sounds the alarm, warning that efforts to address the complex conundrums posed by campus speech—if beholden to only the values of free speech and listener interests—can in fact strain, and even threaten, the independence that universities need to exist as centers of teaching and intellectual engagement. To shed light on this threat, we must frankly confront and seek to understand free speech and academic freedom as separate values, each playing an important role in sustaining a democratic polity—but in different ways.

There is little need to rehearse the familiar rationales for free speech, which assert its importance to the pursuit of truth through a competition often called the “marketplace of ideas”;² its value to democratic self-rule;³ and its role in assuring individual fulfillment, a core aspect of human dignity.⁴ Academic freedom, on the other hand, has different derivations and different justifications, not nearly so familiar. Just as free speech theory in the public domain is anchored on a theory of the government, speech in the university setting—along with its companion, academic freedom—must emanate from a theory of the university.

The university as an institution is conducted for the common good—not for its own good, and not for the good of any individuals who are part of it. Thus, unlike many other institutions that serve the public in other ways, society has considered it appropriate—since the founding of our nation—for the public to establish and fund universities, with the first public university (University of North Carolina) established in 1789.⁵

Benjamin Franklin confirmed that “[a]lmost all Governments have . . . made it a principal Object of their Attention, to establish and endow with proper Revenues, such Seminaries of Learning, as might supply the succeeding Age with Men qualified to serve the Publick with Honour to themselves, and to their Country.”⁶ In Franklin’s vision, the public invests in the university and gleans returns in the form of graduates: an educated citizenry that is an asset to the common good.

But the mere fact that universities have been established and endowed with proper revenues by the government, as an investment in the betterment of society, does not automatically render those institutions equivalent to the government itself. This distinction is critical because the theories underlying free speech do not necessarily support equating universities with governments. Universities, while part of the polity, are not coextensive with government. Franklin’s statement suggests that governments, when they support institutions of higher learning, necessarily endow those institutions with the means to achieve their mission—the means to achieve the common good that Franklin described.

In its famous 1915 Declaration of Principles on Academic Freedom and Academic Tenure—which has shaped discussion of universities for over a century—the American Association of University Professors identified a university’s purpose as threefold: “to promote inquiry and advance the sum of human knowledge”; “to provide general instruction to the students”; and “to develop experts for various branches of the public service.”⁷ Even today, most university websites identify their mission as involving the creation and advancement of knowledge.⁸ From that universal recognition of a core purpose comes a corresponding need: the government must promise not to interfere in academic judgment or undermine educational decisions, in exchange for the university’s contribution to the public good of education.⁹ The institution itself is properly understood to be the holder of academic freedom, a “special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”¹⁰ Academic freedom thus insulates the academy from government or politics for the betterment of the common good. As Justice Felix Frankfurter suggested in a famous concurring opinion, “ ‘the four essential freedoms’ of a university [are] to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”¹¹

But the goal of this Comment is to push harder on the question of what governments transmit to universities in addition to a degree of independence known as academic freedom. I would submit that there is no reason to assume that governments also pass along to universities the separate obligation to adhere to the free speech paradigm applicable to government itself and the public sphere in general. Indeed, there are very good reasons not to do so.

A key tenet of Blocher’s article is that free speech principles and academic freedom principles are not the same thing and can work in tension with one another. This clash, I submit, comes from a reflexive transplanting of doctrines designed to function in different settings. That is not to say free speech has no place in the academy. Rather, we should ask: where do free speech obligations come from with regard to a university?

The simple answer is that the Supreme Court has long held that the First Amendment’s protection of free speech applies fully to public universities.¹² But I believe that the Court made a category mistake in its holding, and so I would like to think further about what the right answer ought to be with regard to the question of free speech obligations for universities.

The better answer, in my view, is that universities do not take on the constitutional obligations of free speech that governments hold. But what about the importance of free speech for academic discourse? While a form of free inquiry and communication is essential to the academic enterprise, its success also depends on judgments about the truth of speech that are utterly inconsistent with the idea of unregulated speech in society at large. Robert Post, who has developed one of the most comprehensive accounts of academic freedom,¹³ offers a persuasive illustration: “Although the First Amendment would prohibit government from regulating the New York Times if the newspaper were inclined to editorialize that the moon is made of green cheese, no astronomy department could survive if it were prevented from denying tenure to a young scholar who was similarly convinced.”¹⁴

My argument is that freedom of speech is best understood not as a free-standing obligation of universities as it is for governments; rather, free speech in the university setting is subsumed within academic freedom, properly understood. With this nesting of dominance, free speech and academic freedom can avoid the catastrophic collision course that Professor Blocher describes. Both free speech and academic freedom are separate but related means designed to further the noble purpose of the academy.

The University of Chicago’s Foundational Principles attest that a university has a “commitment to free, robust, and uninhibited debate and deliberation among all members of the University’s community.”¹⁵ Many scholars agree that the central purpose of a university is, first and foremost, to facilitate disagreement across differences.¹⁶ These tropes are commonly taken as evidence that free speech is a critical value to universities. The words do suggest a free speech value, and certainly some universities and scholars have interpreted them that way—that universities are indistinguishable from public fora for speech.¹⁷

But the words are misleading. In my view, the commitment to debate and deliberation that Chicago rightly identifies as defining the educational mission of a university does not derive from the First Amendment at all. Indeed, I suggest that the free speech value is not a consequence of the First Amendment. Rather, it is a component part of the educational mission of colleges and universities.

Disagreement, engagement, communication—they are all forms of speech. However, that is not why they are central to academia; they are critical to universities because they are essential aspects of the learning process, and to the production and dissemination of knowledge, and thus fall under the rubric of the university’s commitment to academic freedom. It is wrong to assume that, because education requires speech, free speech holds an independent power within the university. That error influenced the Supreme Court, animates many of the critiques of universities, and has led to the problems that Professor Blocher identifies in his article. There should be only one overarching existential value guiding the university: the umbrella known as the pursuit of the educative mission and its guardian, academic freedom.

As Professor Blocher has so ably shown, free speech untethered from its relationship with academic freedom can become a threat to it. Thus, in the university setting, free speech should be considered subservient to academic freedom. To the extent that free speech values can validly claim a place in the university, they do so only to further the legitimate goals of education—goals that free speech supports rather than controls.

This is not the place to make a full-throated defense of the claim that the First Amendment should not apply to universities, public or private—but the concluding discussion will suggest a nod in that direction.

For one thing, the stakes are very different between speech regulation by a university and speech regulation by a government. When a university in some way restricts speech—whether it be a student’s placard in the quad or a white supremacist speaker’s rant at a campus rally—the regulation does not limit speech outside the university’s gates and thus causes significantly less potential speech harm than a government law that regulates speech in the world. The student is free to wave a placard out on the public sidewalk, and the speaker can conduct a rally at a public park.

Why would we assume that universities are public fora for speech? Listener interests, one might reply—people on campus need to be able to hear unfettered speech to achieve the knowledge and training that they seek. But I would respond that the university’s job is to consider the legitimate listener interests in the enterprise of academic engagement. Indeed, as Professor Blocher emphasizes, listener interests are really at the heart of the educational enterprise.

But the university owes no duty to listeners as such, separate from what contributes to the educational mission. If it does owe a duty to permit certain speakers, it is not because the speaker is entitled to speak to the students, or because the students are entitled to hear from every possible speaker. Rather, the duty is to support the acquisition of knowledge and to support speakers who contribute to that enterprise. This would leave out, for example, the people Professor Blocher calls “provocateurs who have no business speaking in an academic setting to begin with.”¹⁸ The university simply is not the public square.

Additionally, of course, the final cause of government is very different from that of universities. The Constitution protects free speech to support self-government, informed democracy, and civic virtue. The university has

a different purpose, which is not always compatible with free speech for its own sake.

The protection of listeners is absolutely core to the academic mission of a university; knowledge cannot be attained, improved, or shared without the inculcation and practice of listening. Listening, critically evaluating what is heard, and engaging in meaningful dialogue are the processes by which learning occurs. Speech and listening are the lifeblood of the university, and they are a blood that nourishes its soul.

For example, if a university believes that hate speech is interfering with learning by causing conflict and insecurity among targeted students, it should have the power to limit expression to the degree necessary to prevent a genuine interference with learning, something that hampers the constructive debate and mutual respect that are essential to true academic engagement. This result is antithetical to the free-speech paradigm.¹⁹

Indeed, the Chicago Principles addressing campus speech explicitly reject any special accommodations to protect targets of hate speech, on the ground that unrestricted speech is the value to which they are committed. But I suggest that they should not be committed to that value if it conflicts with the academic mission. Universities have a core duty to manage speech to promote the advancement of knowledge, not sacrifice it in the name of unrestricted speech.

So, does this help at all with Professor Blocher’s powerful point about how the value of the academic enterprise, including its speech, is contested now and suffers low public regard? Perhaps in this very subtle way: Free speech is often touted as a right—as a sword, not a shield—and those inside and outside of academia are heard shouting, “I have the right to say it, so I am going to say it, and the university cannot keep me from saying it.”²⁰ With free speech in charge, there is less obligation to justify one’s claims. One can make any outrageous, false, offensive, and/or anti-intellectual statement, based solely on the right to speak. In such a scenario, the professional, empirical, or scientific basis for a claim is not offered—is not demanded—because, under the First Amendment, it is not required. But for the academic enterprise, justification is always required. Thus, when the free speech model overcomes the academic model, the terms of debate veer away from any foundation that might inspire trust. This can degrade the currency of academic judgment.

If we could move to a paradigm where universities were thought of more as enclaves governed by the ethos of academic integrity—where speech is justified and tested in dialectic, rather than as a contest of who can yell louder or be more provocative—perhaps there could be more of an emphasis on what Professor Blocher has persuasively defended as “justified true belief.”²¹ In the academic setting, the goal is not an unregulated marketplace of ideas but rather a shared quest for knowledge. This underscores the obligation of the academy to ensure dialectic and responsiveness—give and take—as much as protecting speakers as such.

In this world in which ideas are often communicated in the form of twenty-second TikTok videos, memes, and tweets, one thing that has suffered is reasoned argument—or even reasons, period. Conspiracy theories catch on precisely because they lack a foundation in justified true belief and fail to be subject to robust interrogation. This is the free-speech paradigm at work. But in the academic enclave, I wonder whether re-emphasizing academic freedom and de-emphasizing free speech might help restore to academic expertise the appearance of justification and, in turn, public value.

There are pragmatic objections to how such a regime would be implemented, and this brief Comment does not aim to resolve them. The aim was rather to plant the seed of a model of campus speech that nests free speech within an emboldened concept of academic freedom, making free speech the handmaiden of academic freedom, rather than its antagonist.

98 S. Cal. L. Rev. 1379

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Rebecca L. Brown*

* The Rader Family Trustee Chair in Law, University of Southern California. This Comment was prepared for the SCLR Symposium 2024: The First Amendment and Listener Interests, November 8–9, 2024. I am grateful to Erin Miller and Bob Rasmussen for comments.

Pluralism and Listeners’ Choices Online

September 2025September 2025Alan K. Chen*

“The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, ‘we are inescapably captive audiences for many purposes.’ ”¹

The speech and technology world has changed dramatically, even unimaginably, since Justice Powell penned these words about drive-in movie theaters. In attempting to grapple with this quandary in the contemporary era, James Grimmelmann offers us the provocative and original paper, Listeners’ Choices Online.² His contribution to this Symposium builds on earlier work in which he argues for a theoretical approach to free speech that makes listeners’ interests the central focus of First Amendment doctrine.³ As he argues in the earlier paper, freedom of expression involves what he calls a “matching problem”—ideally lining up speakers with listeners who want to hear their expression, but not with listeners who do not.⁴

The current paper is simultaneously both too complex and too nuanced to adequately summarize in this brief Comment, but here are a few of his main points as I interpret them, and that my comments will address.

Facilitating matching between willing speakers and willing listeners is the goal of a system of free speech. In that regard, “listeners’ choices matter more than speakers’.. . . A consistent

commitment to protecting these willing speaker-listener pairs results in a system of First Amendment law that regularly defers to listeners’ choices.”⁵

Applying that model resolves some of the important First Amendment questions arising from the regulation of contemporary electronic speech media.
It is useful to disaggregate communication media into four types, each of which presents distinct matching challenges: (1) Broadcast (television, radio, cable); (2) Delivery (telephone, email, messaging); (3) Hosting (providers of space for speech, but not engaged in speech themselves); and (4) Selection (directing listeners to specific content via algorithms based on the perception of listener preferences).⁶ Currently, hosting and selection functions are frequently combined, though that does not have to be so.⁷
Selection intermediaries play a key role in determining what listeners hear or see. This is an essential function because the sheer volume of speech available on the Internet creates otherwise insurmountable attention scarcity problems for listeners.⁸
This listeners’ choice model allows for limited regulatory interventions on the media’s selection functions that would not violate the First Amendment.
It would violate the First Amendment for regulators to prohibit intermediaries from offering listeners the ability to choose what speakers to listen to because that interferes with listeners’ right to listen.⁹
However, the government may permissibly intervene when a search engine (or, presumably, other selection intermediary) is dishonest or disloyal to its users, “when it shows them results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant,”¹⁰ because that also interferes with listeners’ interests.
It would also be permissible to have a rule requiring pure selection intermediaries to treat first-party content evenhandedly with content posted by third parties.¹¹
“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 that 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.”¹²

There is much to admire in Professor Grimmelmann’s paper. It makes a number of important and original contributions to thinking about the regulation of social media and is in many parts completely persuasive. First, consistent with the objective of this Symposium, it highlights listeners’ interests as a basis to evaluate the American system of freedom of expression. It is indisputable that the Supreme Court and legal scholars have underappreciated the role of listeners’ interests in articulating First Amendment doctrine.¹³ The primary context in which the Supreme Court expressly considers listener interests involves unwilling listeners as captive audiences, but those are the only cases that place listeners’ interests at center stage.¹⁴ The Court has upheld legal rules that bar speakers from imposing speech on unwilling listeners when the listeners’ “substantial privacy interests are being invaded in an essentially intolerable manner.”¹⁵ Even in captive audience situations, as Grimmelmann points out, under current doctrine the interests of willing listeners will sometimes outweigh the rights of unwilling listeners, particularly if it is easy for the latter to avoid the speech.¹⁶

Listeners’ Choices Online also offers us a way out of the ongoing effort to find the appropriate perspective through which to evaluate how First Amendment doctrine should apply to the contemporary media environment. Much recent scholarship has struggled with this question, with legal scholars sometimes seeking to find appropriate analogies from regulation of past communication technologies to justify a legal framework for thinking about the regulation of social media platforms.¹⁷ Is cable television like traditional television and radio broadcast media? Does regulation of telephone services offer any insight into how we ought to regulate digital communications? Is Facebook more like a parade or a shopping mall? Can social media companies be treated like common carriers, subjecting them to greater regulatory constraints than would otherwise be permissible to impose on private companies engaged in speech?¹⁸

None of the analogies work perfectly, however, because each different electronic speech medium bears some distinguishing features that complicate the analysis.¹⁹ Some, as the article points out, are mere vessels for delivery of content, while others engage in important speech-impacting selection decisions that help listeners sort through the onslaught of online content, but, in doing so, may affect listeners’ interests by providing them content they do not want to hear or directing them away from content they would welcome.²⁰

The Supreme Court has only just dipped its toes in the water, in its dicta in last term’s Moody v. NetChoice, LLC, with the majority opinion stating unequivocally that “[l]ike the editors, cable operators, and parade organizers this Court has previously considered, the major social-media platforms are in the business, when curating their feeds, of combining ‘multifarious voices’ to create a distinctive expressive offering.”²¹ But as Grimmelmann points out, that is looking at the challenged state laws exclusively from the platforms’ perspective, and not the listeners’.²²

Rather than attempting to argue purely by analogy with past regulations of earlier media technologies, Grimmelmann’s paper elegantly uses listeners’ interests and choices as an organizing principle that cuts across these different media to create a coherent First Amendment model for evaluating media regulations. He suggests that focusing on these interests allows us to see more clearly the competing speech interests involved in ways that the purely analogical approach simply cannot. His listeners’ choice theory emphasizes matching speakers to willing listeners, which can be accomplished by structural designs, by some content neutral government regulation, and, in part, by requiring the separation of hosting and selection functions in ways that maximize these speaker-listener connections.²³

While Professor Grimmelmann’s model is intriguing and helps us think about media regulation in useful ways, I offer three modest thoughts, two focused on whether, in some circumstances, prioritizing listeners’ rights may come at the expense of other important First Amendment values, and one questioning whether there is a need for further promoting listeners’ choices on social media given the increasing market for niche social media sites.²⁴

Prioritizing Listeners’ Choices May Diminish Public Discourse

First, permitting limited regulation of selection intermediaries to protect listeners’ interests could, in some cases, have deleterious effects on public discourse. Even the modest regulatory interventions that Grimmelmann suggests would be permissible to advance listeners’ interests could be leveraged to challenge selection intermediaries’ decisions to offer a more balanced, fact-checked feed to their subscribers. Or, even if those effects do not come to fruition, the very existence of regulatory interventions might deter selection intermediaries from experimenting with innovations to promote delivery of a greater diversity of content that does not cater purely to listeners’ interests.

Consider a hypothetical new platform calling itself Balanced Social Media (“BSM”). Following Grimmelmann’s model, let us assume that a different company is the host for BSM, which exclusively serves a selection function. BSM designs an algorithm that, for the most part, favors listeners’ choices of content, but adds three specific features that veer from the default rule. First, it builds in its own fact-checking mechanism that flags content posted by third-party users that may be objectively false or come from sources that have proven unreliable or inaccurate in the past. The BSM algorithm will still direct the user to that content, but the content will be marked with a red flag that warns the user that the factual foundation of the material may not be valid, and provides a link to a source that disputes the factual validity of the original post.

Second, the algorithm is designed to monitor users’ feeds to determine if they are seeking content that is unilaterally biased toward one particular ideology, for example, if a user reads only content posted by Fox News or MSNBC. If the algorithm identifies users who seek ideologically unbalanced content, it will occasionally feed such users some third-party content that comes from a dissimilar political perspective. This counter-ideological feed could come randomly or perhaps after the user has viewed ten consecutive stories from sources with their preferred ideological perspective.

Alternatively, BSM could instead offer a slightly less intrusive option under which, rather than posting counter-ideological content, BSM could give the user a warning or notice to the effect that the user has been reading content that is exclusively coming from sources with a specific political orientation and asking if the user would like to see something from a different perspective. This might operate in a manner like TikTok’s option for its users to set a daily screen time limit and be notified when they have reached that limit.²⁵ Under my hypothetical, however, users would not be able to turn off this setting.

Third, BSM occasionally posts its own independent content on the platform that discusses issues regarding the responsible use of social media and the importance of ensuring that information is factually accurate before posting it. As with the counter-ideological posts, it will feed periodically into all users’ feeds. BSM users cannot opt out of any of these functions; though, of course, they may decide they do not want to use BSM. When users sign up to use BSM, they are fully informed about the algorithm’s functions, which they agree to as part of the Terms of Service (“TOS”). The TOS even says, “BSM offers a new vision of social media, one that will deliver content that you did not ask for, or even that you do not want to see (of course, we cannot make you read it, that is up to you!). The goal of our model is to expose all people to a range of ideologically diverse content.”

Grimmelmann’s model seems to suggest that lawmakers might be able to forbid BSM to adopt these innovative features because they do not fully promote listeners’ choices. The fact-checking flags and counter-ideological feeds are content that many users may not wish to see; indeed, they may be viscerally repelled by these posts, particularly if this interferes with their ability to experience the emotional resonance associated with speech that highlights their own world views.²⁶ He suggests that regulators may be able to restrict selection intermediaries’ use of such algorithms to the extent that “it shows [users] results that (objectively) differ from the engine’s own (subjective) judgment about what the users are likely to find relevant.”²⁷ In fact, BSM’s model is designed to show user content they do not want to see. In Grimmelmann’s terms, the intermediary is being disloyal to its users (although because the algorithm’s functions are fully disclosed in the TOS, they can argue they are not being dishonest).²⁸

Moreover, the BSM-produced content (and maybe even the fact-checking posts) can be viewed as first-party content.²⁹ BSM is in some sense trying to compete in the social media market by offering a new way of delivering content. Would a pure listener-based approach result in such experiments being shut down by regulators because they are occasionally giving their first-party content priority over content posted by third parties?³⁰ That is, by feeding users first-party content in the form of sermons on the importance of truth in the responsible use of social media, has BSM interfered with listener choice? Because Moody holds that social media platforms are speakers when they make decisions about content moderation,³¹ they are unquestionably speakers if they are producing their own content. How would Grimmelmann’s model address the tension between a regulation prohibiting BSM from prioritizing first-party content to protect listeners’ choice and the platform’s First Amendment speech rights?

To the disloyalty argument, Grimmelmann might respond that because BSM is transparent about its algorithm, it is not actually being disloyal or dishonest to its users.³² Listeners who do not want this type of balanced approach can simply choose a different platform that better suits their listening tastes. However, while BSM is certainly giving listeners choice at the first level (platform selection), its model will inevitably result in some BSM users receiving speech at the second level (content selection) that they subjectively do not want to hear.

Elevating Listeners’ Choices Could Encourage Information Silos

A closely related concern with a system of electronic media regulation focusing primarily on promoting listeners’ interests is whether such an emphasis could have the broader systemic effect of exacerbating ideological information silos even more than under the current system.³³ An important function of a system of free expression is, of course, promoting robust public discourse. Public discourse is inherently oppositional—speakers of different viewpoints must be able to engage each other for it to meaningfully occur.

In many cases, speakers desire to reach listeners whom they believe will be persuaded by their messages if those listeners only had an opportunity to hear them. Anti-abortion advocates may sincerely believe that if women considering abortions only had more information, they would make different choices. Protesters concerned about the humanitarian crisis associated with Israel’s military actions in Gaza would like to reach those who are unconditionally sympathetic to Israel’s right to defend itself because they think, with additional information, these listeners may modify their positions. On social media as well, speakers try to convince unwilling listeners of the virtues of their political positions. Preaching only to the converted does not facilitate healthy discourse.

Outside of the captive audience context, which is almost exclusively applied to unwanted speech in one’s home,³⁴ a key function of the First Amendment is served by advancing the interests of speakers to influence those who are not inclined to agree with them.³⁵ As the Supreme Court has recognized:

[Speech] may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.³⁶

These express values are in direct tension with a purely listener-based approach. This may be particularly true of speech on social media, which the Court has argued is one of the “most important places . . . for the exchange of views.”³⁷

Thus, a second concern I have with a model prioritizing listeners’ choices over speakers’ is that its application, in many contexts, may impede what we might describe as lawful, but uncomfortable, speech that is intended to persuade.³⁸ If listeners can confine themselves only to speech they want to hear, even in the social media context, then prioritizing that interest can operate as a kind of quiet heckler’s veto. In a social media environment in which listeners’ choice prevails, it is hard to imagine how persuasion might work, either individually or collectively. Are there any situations involving such speech through media in which the default position is not valuing the listener over the speaker, and if so, how could that decision be implemented?

Perhaps our society is headed in this direction already given that, as Grimmelmann observes, even in the absence of regulation of selection intermediaries, listeners might deploy a combination of pure hosting platforms with middleware, a third-party software that allows them to customize their feeds at an even greater level of detail.³⁹ While this, too, would benefit listeners’ choices, it would move us in the direction of a more atomized speech universe—which is not necessarily a good thing, but at least it would not be the product of government intervention.

Market Responses Are Already Enhancing Listeners’ Choices

Finally, one could argue that market forces are already moving toward a listener-centric model with the proliferation of niche social media platforms, even in the absence of regulatory interventions.⁴⁰ There is some evidence that users are beginning to migrate from more general social media sites such as X (formerly known as Twitter), to special interest platforms where they can avoid the cacophony of hostile rhetoric in favor of sites where they can engage with a smaller cohort of people who share common interests. That development certainly enhances listener choice without risking the possible unintended consequences of regulations designed to promote listeners’ choice.

Especially during the 2024 election season, there seemed to be growing dissatisfaction with general social media sites because of the unavoidability of sometimes harsh political discourse. It was not uncommon to hear calls for platforms dedicated to only discussion of books, movies, music, gaming, and other mostly nonpolitical (or, at least, not primarily political) topics that listeners sought out to find some respite. Sports lovers initially were the exception to this rule, although even those users have now started fleeing X.⁴¹

Available statistics suggest that the market has responded to this interest and is already enhancing listener choice by serving its own matching function. About 115,000 users deactivated their X accounts on the day after the November 2024 Presidential Election.⁴² No matter how the total user base is measured, that is a very small percentage, which is unsurprising because network effects deter people from leaving even platforms with which they are dissatisfied. Of course, people can maintain active X accounts while still seeking out other outlets for speech. In comparison, niche social media platforms are still quite small. One of the largest, Goodreads, a platform to share book recommendations, had about 150 million users as of 2023.⁴³ Houzz, a home design social media platform, reportedly has about 70 million users.⁴⁴ A platform for movie lovers (especially indie) called Letterboxd now has about 17 million users.⁴⁵ Reddit, while open to a wide range of users, is well known for facilitating smaller communities to generate discussion of interest, and now has about 91 million daily active users.⁴⁶ Finally, Substack, a platform for distributing individualized newsletters to both paid and unpaid subscribers, now has approximately 50 million subscribers.⁴⁷

It may seem somewhat contradictory to fret about information silos while simultaneously celebrating the expansion of niche social media sites. To address this briefly, I would argue that the siloing problem is much more problematic on the larger, omnibus social media platforms than with niche social media platforms. Political discourse is one of the main features of the larger platforms, so cutting off speech that is ideologically diverse is truly undermining the opportunities for persuasion. In contrast, the niche social media sites are mostly excluding posts about other topics not because of any ideological commitments, but rather to help filter out what they regard as irrelevant information. That is not to say that political discourse cannot arise in the context of these niche sites,⁴⁸ but it is at least less likely to do so. And, of course, these users may be walling themselves off from any political speech, which could be problematic for public discourse in the long run. But there is nothing to suggest that these users might not still engage in political discourse on other platforms or in other contexts of communication in their non-online lives.

* * *

Notwithstanding my limited reservations and questions, I wholeheartedly welcome Professor Grimmelmann’s important and valuable contribution to thinking about the complex constitutional and social issues associated with regulation of electronic media in the current climate. Continued efforts to meaningfully apply standard First Amendment doctrine to new media allow us all to think critically about the best way forward.

98 S. Cal. L. Rev. 1387

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Alan K. Chen*

* Thompson G. Marsh Law Alumni Professor, University of Denver Sturm College of Law. Thank you to Erin Miller and to the editors and staff of the Southern California Law Review, and especially Simone Chu, for their efforts in organizing this fantastic Symposium. Thanks also to Nina Christensen and Charlotte Rhoad for their helpful research.

Unchosen Listening

September 2025September 2025Erin Miller*

INTRODUCTION

A century of developments in communications technology has done wonders for listeners.¹ In the not-so-distant past, the listener had few choices regarding the speech they heard. An urban listener might find a range of choice in libraries or bookstores, or among private associations’ meetings or periodicals. But mostly listeners heard what others happened to say, on the job, at church, in the neighborhood, and on the street-corner. Today, listeners have more choices than ever, and more ability to choose which speech to hear and which not to hear.

First Amendment doctrine, for its part, has occasionally shielded these listeners’ choices about whom to listen to, even over speakers’ choices about whom to speak to.² I largely agree with the authors in this symposium who argue that it should do so more often.³ The appeal is evident. Communication goes most smoothly with a willing speaker and a willing listener. And with listeners now awash in speech options, someone must choose among them. The listener seems obviously superior, as chooser, to many looming alternatives: the stalker, the fake-news purveyor, the oligopolistic media platform, or—most antithetical to the First Amendment—the government.

Yet this Commentary urges caution in so fully embracing listener’s choice that it becomes a paradigm of First Amendment jurisprudence. One can easily move from recognizing the advantages of willing listening (and speaking) to identifying the “core” of constitutionally protected speech as not just a “joint activity”—to use Ashutosh Bhagwat’s illuminating term⁴—but mutually consensual, affirmatively chosen by both speaker and listener.⁵ One might even begin seeing something constitutionally suspect about speech that lacks a consenting listener. On this interpretation, the fact that the speaker on his soapbox in Washington Square Park annoys some passersby is, while inevitable, still unfortunate—a sacrifice made for the sake of the other, more willing passersby.⁶

Yet in a not-too-distant future, this fact might be “correctible” by technology, assisted by artificial intelligence and mass data collection. Every webpage you visit might seamlessly filter out any content you have elected not to see; or software might elect for you, based on your eyes’ patterns of lingering. When you step onto the street, you might wear digital glasses to blur out all written speech that you have deemed unwelcome, and digital headphones to cancel all noise except oral speech you have deemed welcome.⁷

While this seems a paradise for listeners’ choice, it would not be one for listeners’ interests, another traditional First Amendment concern.⁸ The speech that we choose to hear does not always make us better off.⁹ Certainly, a listener’s choice is one aspect of their interests. And speech they vehemently reject—such as harassing speech—will rarely be in their interest. But a gray zone exists between chosen listening and coerced listening, which I will call unchosen listening. Some unchosen listening, I will argue, is a desirable part of being an autonomous person and citizen.

I will also argue that it is desirable for the broader society of which listeners are a part—including its collective knowledge, culture, and, especially, democratic institutions. These societal interests underlie the First Amendment, too, as Alan Chen also discusses in this symposium.¹⁰ Perhaps for these reasons, unchosen listening has been revered in First Amendment doctrine. As the Supreme Court declared in Terminiello v. Chicago, speech “may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”¹¹

Indeed, the most fiercely protected First Amendment speech—perhaps its real “core” case—involves non-consensual listeners: speech in the public forum.¹² This means citizens trying to move or persuade fellow citizens, and especially those none too thrilled to listen. It is—for those familiar with the First Amendment landmarks—Abrams’s communist pamphlets thrown from the roof, Kovacs’s pro-labor commentary amplified from his truck, Mosley’s sign decrying race discrimination, Cohen’s jacket protesting the draft.¹³ And it is arguably the only speech government has a (currently recognized) positive obligation to protect—by preserving the openness of traditional public forums—under the First Amendment.¹⁴

While the Court has seldom expounded on the theme of unchosen listening, its silence invites less doctrinally bound theorizing. This Commentary thus offers a brief normative case for resisting a listener’s-choice paradigm (and maintaining more of a public forum paradigm).¹⁵

I. The Case for unchosen listening

What speech will a listener hear, if they mostly choose that speech themselves or have it selected for them based on algorithmic predictions of their preferences?¹⁶ Chances are, it will be fairly insular and homogeneous. That is, it will be familiar, comfortable, and unchallenging; and it will come from like-minded speakers and a small number of sources.¹⁷ Its insularity and homogeneity will be reinforced to the extent that the listener chooses with greater granularity—that is, chooses not just among sources or topics but among specific speech from each source or specific views on each topic.¹⁸ The result might resemble “The Daily Me” envisioned by Cass Sunstein.¹⁹ While not all listeners will choose like this, and few will do so all the time, enough listeners will likely do so in enough cases to affect the overall patterns of communication in society.

Assuming this is true, the following discussion identifies five significant interests that can be undermined when listening becomes too tailored to a listener’s choices: preference optimization, error avoidance, innovation, self-evolution, and tolerance.²⁰ Each interest has an individual dimension: for listeners themselves. Each also has a collective dimension: for a society in which the total pool of speech consumed is determined largely by listeners’ choices.

A. Optimizing Preferences

Even listener-chosen speech does not always satisfy listener preferences.²¹ Speech often defies expectations. Sometimes we have a “meh” reaction to a movie by our favorite director, or are spellbound by a movie we expected to bore. Our expectations are sometimes even insufficient for choice. I may have almost no sense of whether I would like a movie from an unfamiliar genre, because I have not experienced anything like it before. After all, the indicators of content that are available prior to hearing speech—for example, its speaker, venue, general subject, or reviews—are necessarily limited.

With ever more personalized listening technology, our mistaken choices—or mistaken predictions of our choices by algorithms—can lock us into inferior patterns of listening. Mistaken choices are easily corrected when they produce dissatisfaction, but less so when they produce merely suboptimal satisfaction. Say that I have watched and liked one Fellini film and one Spielberg film. Perhaps I am directed, by choice or algorithm, toward more Spielberg films rather than Fellini films. I continue to like Spielberg films and hence grow my love of Spielberg. I may never know the counterfactual––whether I would have preferred the Fellini films. The best chance of exiting a suboptimal equilibrium is exposure to unchosen speech, or at least less-precisely-chosen speech. Optimizing, therefore, involves reflective equilibrium between chosen and unchosen exposure.

A collective cultural danger lurks here, too, at least insofar as listeners rely on algorithmic services to make these finer speech selections for them.²² Because these services operate within a market economy, their corporate makers may face incentives to nudge listeners toward more popular, hence more easily satisfiable, preferences. Forced to rely on the same services to find listeners, speakers—including musicians, writers, filmmakers, journalists, and others—may also feel pressure to create content to win the algorithm’s game, as many have already.²³ The result may be a blander culture and public sphere, with fewer options over which to optimize our preferences.

B. Avoiding Error

Listening primarily to chosen speech may proliferate error. The first problem is that it may skew our available evidence. If, as assumed, we choose to listen to speakers who share our beliefs, including false ones, then they will be unlikely to offer evidence against those beliefs.²⁴ They may even pass on new false beliefs based on old ones. These harms are well-documented within “epistemic bubbles,” that is, discussion spaces in which certain views are systematically excluded.²⁵

A second problem is that too much chosen listening may objectionably narrow the range of subjects on which we possess evidence. People may choose to listen to little or no speech concerning decisions they will or must take, including voting. For instance, research suggests that the most promising ways to inform voters may involve incorporating speech that they do not choose alongside speech they do—such as entertainment.²⁶

Yet a third problem is that a steady diet of chosen speech may dull our capacity to think itself. As John Stuart Mill observed 166 years ago, reasoning is better stimulated and optimized by speech that is uncomfortable and challenging.²⁷ But chosen speech is, by assumption, typically the opposite. Chosen speech can exacerbate self-favoring and in-group-favoring cognitive biases.²⁸ Chosen speech may not even offer reasons, because it does not seek to persuade. Chosen speech can, by repeating or just assuming our beliefs, reinforce and bury them so deeply that we have trouble getting the “mental distance” necessary to scrutinize them—to question them and their justification.

C. Innovation

Unchosen listening can stimulate not just rational thought, but more creative and generative forms of thought that do not merely analyze evidence but propose new ideas or solutions.

Creativity is by its nature unexpected. It often involves making connections among facts, ideas, disciplines, cultures, and so forth that others—including oneself—had never thought to draw. We are thus sometimes likelier to arrive at an innovative solution not by continuing to think directly about the problem—constrained by our previous expectations—but by allowing our mind to wander and randomly associate.²⁹ The revolutionary inventions, discoveries, insights, and movements that have been prompted by contact with unusual contexts, other disciplines, or other cultures are countless. Consider an eclectic sampling. Clinical psychology has been seriously influenced by Buddhist religious practices. Impressionism in painting was largely inspired by Japanese ukiyo-e prints³⁰; and the painting of Jackson Pollock, darling of the Supreme Court’s own First Amendment cases, was likely inspired by Native American sandpainting.³¹ The QR code was suggested by the Go board,³² while the foldable shape of heart stents was suggested by Japanese origami.³³ Numerous engineering innovations, from aeronautics to robotics, have come from observing animals.³⁴ The latest monumental computer science invention, large language models, grew from insights in both linguistics and cognitive science. And this symposium’s own Aziz Huq uses observations in sociology for thinking about digital speech.³⁵

Creativity thus seems likeliest to be prompted by exposure to speech that is unexpected, or at least unguided by our own choices.³⁶ Unchosen speech can offer new concepts and frameworks of thinking that supplement or integrate with existing ones. Or it can simply interrupt habitual frameworks—generating another (creative) form of mental distance—and thus open the mind to the potential relevance of unexpected inputs. By contrast, chosen speech can lock in certain expectations of relevance.

One might expect collective, rather than individual, innovation to be fueled through highly personalized listening. It might segregate most listeners into speech subcultures, within which they could refine their own insular ideas—like members of a species separated among islands and continuing to evolve. But then a few innovators sampling from those radically diverse subcultures might produce innovations of even greater enormity. Yes, it seems just as plausible that, so long as enough listening is chosen, occasional sampling by a greater number and diversity of listeners would provide offsetting benefits of more sophisticated—if slightly less radically distinct—subcultures and more frequent innovation.³⁷

D. Self-Evolution

Persons arguably have a fundamental autonomy interest in being able not just to make up their minds, but to change them, too. This ability to change applies to their beliefs, as described above, but also their ends—their important goals, values, commitments, and so forth—and their tastes.³⁸ I do not mean the mere freedom to zig when one previously zagged. Certain factors beyond our control inevitably change over time: our external circumstances vary, and our set of experiences and beliefs expands. In response, it is often appropriate or even necessary to change ourselves in order to cohere, adapt, and grow. Otherwise, we become frozen into a course determined not by us, but by the “dead hand” of our past self.³⁹ Indeed, one might say that autonomous self-development just is the continual evolution of our self in response to new, external inputs.

It is almost always possible to change our ends, at least insofar as nothing physically prevents us. But pursuing our ends is often habitual, or even inertial. For us to have a meaningful opportunity to change,⁴⁰ we must occasionally gain mental distance—of yet another sort—sufficient to reflect directly on our existing ends and their continued desirability, with adequate understanding of alternatives.⁴¹

Listening only to chosen speech impedes this mental distance. Because we as listeners choose speech based on who we are, that speech is unlikely either to prompt critical self-reflection or to present an adequate range of alternatives for whom we could become. It may even passively reenforce our present ends and hinder our evolution.⁴² By contrast, consuming speech that is unchosen and hence more unfamiliar or even genuinely surprising is likelier to enable self-transformation.

A society that lacks such dynamism among its members, too, seems destined to remain trapped in outdated ways of life. As its membership grows and shifts, and the world changes, it may not evolve—culturally, politically, or legally—to meet new needs. As a staunch advocate of “[a] constitutional regime fearful of political entrenchment and dedicated to continual adaptation,”⁴³ Justice Oliver Wendell Holmes saw protection of specifically “the expression of opinions that we loathe” as indispensable.⁴⁴

E. Tolerance and Persuadability

In a pluralistic society, we must cooperate across irresolvable differences and disagreements. We must work with and take into account the interests of those with values, beliefs, and tastes significantly different from our own (let us call them our counterparts). Sometimes we must reach compromises with our counterparts, even at partial expense of our own ends. This demands tolerance toward our counterparts, that is, engaging and respecting them as rational agents and persons as we engage with them. We must, so far as possible, attempt to understand and make sense of their claims, identify issues of agreement, and persuade them on issues of disagreement.

Highly personalized listening can be expected to decrease tolerance. Humans have a well-documented proclivity to exhibit negative personal attitudes toward those who hold views—especially moral and political views—with which they strongly disagree.⁴⁵ We may also interpret the speech of our counterparts in uncharitable ways, thereby missing any merit in it.⁴⁶ But these effects can be countered, the more often we hear counterparts speak.⁴⁷ The more we so listen, the likelier we become to succeed in the social cooperative tasks mentioned above, and to empathize with our counterparts.

Tolerance is useful within any social group, but its usefulness is heightened within a democracy. For in a democracy, we exercise coercive power mutually over each other. As Jonathan Gingerich has argued, all participants in a democratic system, and especially potential losers, must have a genuine opportunity to persuade their fellow citizens on political issues.⁴⁸ This logically entails that citizens must open themselves, even ever so slightly, to the possibility of being persuaded⁴⁹, in light of their own fallibility and the basic rationality of other citizens—at least enough to actively listen.⁵⁰ For any opportunity for a speaker to persuade, however slight, dies if all listeners tune out.⁵¹

One might go further. Elected officials within a democracy owe a duty to their constituents to hear out their political concerns, no matter how much the officials would prefer not to. One might by extension argue that voters, as joint rulers over one another, have an obligation to hear out the political concerns of at least some of their counterparts.⁵² As Justice Louis Brandeis once declared, “public discussion is a political duty.”⁵³

II. Limitations and Implications

Having made the general case for unchosen listening, I offer a few brief remarks to situate it within contemporary free speech doctrine.

Hopefully it is clear that I do not mean to reject listener choice as a critical First Amendment concept. Listener choice is rightly viewed by courts as definitive in certain limited domains, such as the home.⁵⁴ Arguably courts should, even most of the time, defer to the listener’s choice, as the least objectionable, content-neutral proxy for their interests. After all, listeners’ choices usually converge with their personal interests. Respecting listeners’ choices also tends, through market mechanisms, to generate decently diverse media options, which are good for their democratic interests.⁵⁵

As mentioned at the outset, I am also inclined to believe that the First Amendment does not protect a right to coerce listeners.⁵⁶ The final scene of A Clockwork Orange is not a good look for the Constitution. Some speech, such as hundreds of creepy Facebook messages,⁵⁷ may be constructively coercive, because of its repetition, intimidation, or substantial disruption of normal activities. Other speech may be coercive because of time-constrained psychological vulnerabilities of a listener.⁵⁸ But listening is not coerced simply because unrequested, unaccepted, or even undesired. I am inclined to believe that even speech that ignores a listener’s affirmative assertion of unwillingness is not coerced, absent such exacerbating factors.⁵⁹ Speech is not sex. Nor is listening coerced if the asserter had some minimal exposure to the speech on a prior occasion—the glimpse before we “avert our eyes” or click to delete.⁶⁰

One of the main venues for speech of this sort is the public forum. Of course, speech in these spaces works better—to spark correction, creativity, transformation, or tolerance—when the listener is game. Indeed, the more actively a listener resists, the less likely speech will achieve any such benefits. But even if most listeners avert their eyes against unwanted speech in public, they at least gain minimal exposure to the message and the fact that someone wants to speak it. Even that regular exposure can heighten tolerance and reduce resistance toward other, perhaps more articulate, unchosen speech.

Virtual forums can prevent even such minimal exposure to speech. With digital listener’s-choice technology, you need not avert your eyes whenever you see an unwelcome message, but can often effectively swipe right to pre-screen all similar messages. Indeed, some messages can be silenced not because you affirmatively resisted them, but because messages you liked better were prioritized over them. Yet media platforms may increasingly turn to listener’s choice as a means of filtering principle that both satisfies users and evades responsibility.

Aggressive use of listener-chosen filtering may even portend the demise of the traditional public forum. The area of publicly owned space available for talking appears to have been shrinking for decades, as the Court has recognized.⁶¹ Listeners, willing and unwilling, have fled those spaces even faster since the digital era. Research shows that pedestrians now walk faster, and interact less often, in public spaces.⁶² Many factors seem to exacerbate this trend: ever more densely developed urban areas,⁶³ constrained public budgets,⁶⁴ perceived rises in crime, architectural features designed to make spaces less welcoming (likely targeted at the homeless),⁶⁵ and increasing stretches of everyday life spent online. When we talk to strangers, it is thus mostly in private, digitally moderated spaces, to the willing. Even when we do find ourselves conversing in physical spaces, severe geographical political segregation means that our interlocutors will often still be likeminded.⁶⁶ All of this stymies the serious engagement across difference that is critical to the democratic process.

Admittedly, the public forums of old were never ideal sites for reasoned discourse. Soapbox speakers are typically better at stirring passions than parsing arguments. Yet the solution should not be doctrinal abandonment of the public forum, and the commitment to unchosen listening that it represents.⁶⁷ Rather, courts should stand ready to approve the expansion of spaces in which we encounter at least some unbidden speech—if necessary, privately owned ones⁶⁸—and encourage reason-giving within them.⁶⁹ That would be the First Amendment paradise.

98 S. Cal. L. Rev. 1399

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Erin Miller*

* Associate Professor of Law & Philosophy, University of Southern California Gould School of Law. I am grateful to the participants in this symposium for inspiring this comment, to the student editors of the Southern California Law Review for their diligence at every step of the production process, and to Ashutosh Bhagwat, Rebecca Brown, James Grimmelmann, and Felipe Jiménez for detailed feedback.

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

Campus Speakers, Events, and Other Extra-Curricular Settings

Dormitories and Other Private Spaces

B. Scholars

C. The Public

Conclusion

98 S. Cal. L. Rev. 1161

Introduction

I. A Well-Functioning Speech Environment and its Challenges

A. Speakers, Listeners, and the First Amendment

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

Informed Voting

Discussion and Deliberation

Meaningful Participation and Governmental Responsiveness

C. Digital Exceptionalism

II. Law and the Speech Environment

A. The First Amendment as a Positive Right

B. Public Discourse and Campaign Finance Regulation

C. Public Discourse and Social Media Platforms

III. Possibilities for Countervailance

A. Disclosure and Transparency

B. False Election Speech

C. Deepfakes and AI

D. Incentives and Norms

E. Public Jawboning

F. Civil Society and the State

Conclusion

98 S. Cal. L. Rev. 1193

Introduction

I. Substantive Accountability and the Constitution

II. Major Judicial Precedent (and a Glimpse at Executive Branch Precedent)

A. Government Speech Doctrine

B. Unitary Executive Theory

III. Contemporary Threats to Substantive Accountability

A. Unitary Executive Theory and Federal Investigations

B. Broader Attacks on the Civil Service: UE Theory and Government Speech Doctrine at Work

Unitary Executive Theory

Federal Employees and the First Amendment

The First Amendment and State and Local Employees

IV. Some Kernels of Hope

CONCLUSION

98 S. Cal. L. Rev. 1321

I. Fear on Both Sides, Speech on Both Sides

A. Speakers’ Fear of the Government

B. Targets’ Fear for Their Physical Safety

II. Attending to Targets’ Free Speech Interests in Threats and Stalking Cases

A. The First Amendment Argument for Symmetrical Concern for Speakers’ and Targets’ Expressive Interests in Threats Cases

B. The Counterman Court’s Missed Opportunity: Defining Unprotected True Threats Through an Objective Target-Centered Standard

C. Target-Attentive Approaches to Threats Cases After Counterman

D. Target-Attentive Approaches to the Many Stalking Cases That Do Not Involve Threats and Where Counterman Thus Does Not Apply

Stalking That Takes the Form of Conduct Only

Stalking That Takes the Form of Communications That Instill Fear Regardless of Their Content

Stalking That Takes the Form of Threatening Speech

Stalking That Involves Both Conduct and Speech

Conclusion

98 S. Cal. L. Rev. 1351

98 S. Cal. L. Rev. 1379

98 S. Cal. L. Rev. 1387

INTRODUCTION

I. The Case for unchosen listening