In 1909, Urban Walter, a 28-year-old mail clerk, founded a small magazine with large ambitions. According to its masthead, the Harpoon was “a magazine that hurts.” It was founded in pursuit of one goal: to oppose the Post Office Department’s imposition of a “gag order” on any discussion of the train wrecks that killed scores of railway mail clerks annually and maimed many hundreds more. These gag orders, first promulgated by the Postmaster General in the late 19th century and later expanded by executive orders issued by Theodore Roosevelt and William Taft, prohibited civil servants from petitioning or giving information to Congress, or advocating for improved pay or working conditions except through their departmental head. The Harpoon defied the order, promising to give the “fullest publicity” the dangerous conditions—both physical and organizational—of the work.

Walter was frequently ill with respiratory issues, exacerbated by moldy mailbags and the dusty, lamplit conditions on the mail car. To explain why he spent his precious “lay-off” time in a small print shop in Phoenix, Arizona, Walter invoked the highest of constitutional ideals. “No public official is great enough to take away the guaranteed rights of American citizenship,” Walter explained. “The very constitutional rights” of “lesser public servants” were abrogated by an order that, under penalty of swift removal, prohibited a clerk from discussing his working conditions publicly and from complaining to Congress. Under what Walter saw as the pretext of maintaining “efficiency of service,” postal officials had robbed 15,000 railway postal workers of their right to speech and right to petition the government. In so doing, officials had also undermined the public good by keeping Americans ignorant of the conditions under which their mail was delivered.

Urban Walter and the railway postal clerks who read and wrote for the Harpoon understood their fight for speech rights not in individualistic and expressive terms, but as a precondition for public accountability. Because of the transient, hidden nature of railway postal work, disclosure of the clerks’ working conditions was the public’s window into a job that also bore upon public safety. In 1909 alone, 27 railway mail workers were killed, 98 “seriously injured,” and 617 “slightly injured”—the highest number of deaths on record. Under Walter’s framing, the disclosure of dangerous working conditions implicated the “public good,” and not just the narrow interests of an individual worker.

At the same time, Walter and other railway postal workers saw these gag orders not as a blunt instrument of “efficiency,” but as an explicitly anti-union tactic designed to forestall the organization of an effective railway postal workers organization. Walter and other postal clerks fought to affiliate with the American Federation of Labor (AFL) through a breakaway faction of the Department-dominated Railway Mail Association (RMA). Many of those clerks were fired—dismissed for the “good of the service,” or because of their “pernicious activity.” Walter was one such worker. He sent Postmaster General Frank Hitchcock “an advance copy” of Harpoon’s first issue, instructing the economy-minded Taft appointee to “carefully peruse” the enclosure. In response, the Department’s informed him that his (untendered) resignation had been accepted. A clerk sent Walter a dead rat that he had found inside the drinking water of his car. A photo of the rat appeared in the Harpoon. The clerk was also fired. Other supporters of the magazine were threatened with dismissal—which intensified the newspaper’s support, producing a culture of insubordination in defiance of executive orders and in support of public employee speech.

A fired worker is dangerous, a fired worker with access to a printing press doubly so. No longer facing a gag, Walter devoted himself full-time to the job of gadfly publisher and labor advocate. Less than three years after the Harpoon’s founding, Walter himself appeared before Congress, urging the passage of a single bill that would repeal the gag orders and protect the organizing rights of postal workers—speech goals that were to be linked legislatively as they had been in Walter’s protest. In his testimony, Walter accused the Postmaster General of “misinforming the committee” outright on the age and safety of mail cars. Because clerks were prohibited from disclosing information to Congress, legislators remained ignorant. The committee was thus forced to confront its own powerlessness in the face of executive branch orders. As Samuel Gompers, the president of the AFL, was quick to observe, a decade of executive orders prohibiting federal employees from disclosing information to Congress “may just as well have been an inhibition to the Members of Congress … to ask for this information.”

With the institutional prerogatives of Congress and the material interests of organized labor aligned, the Lloyd-La Follette Act became law in 1912. The Act had four discrete provisions: “no person in the classified service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service”; a requirement that a fired civil servant be furnished with written charges and an opportunity for responding to them; protection against removal or retaliation for postal employees who belonged to societies, associations, or unions—so long as the organization imposed no “duty to strike”; finally, the Act affirmed civil servants’ right to petition Congress “either individually or collective” and to “furnish information to either House of Congress, or to a committee or Member thereof.” This latter provision constituted the first statutory protection for whistleblowers, later expanded by the Civil Service Reform Act of 1978 and the Whistleblower Protection Act of 1989.

But taken together, the Act’s provisions reflected organized labor’s view of the value of speech, Congressional oversight, and government service. While not requiring the examination of witnesses or a trial-type hearing, the Act still afforded new tenure protections for hundreds of thousands of government employees, moving government employment firmly away from an at-will model. Though paltry in comparison to later procedural safeguards, the requirement that government employees be provided with reasons for their dismissal and an opportunity to contest those reasons nonetheless reflected both a skeptical view toward the state and an adversarial view toward management. This due-process culture that defined private sector organizational governance in the second half of the 20th century was first imagined, in thin form, by civil servants and their labor advocates. And, of course, the affirmation of the right of postal employees to unionize—also subtly suggested by the right to petition Congress collectively—is testament to labor’s vision of public employee speech. In the early 20th century, a person may have possessed no constitutional right to be a postal worker, to paraphrase Oliver Wendell Holmes. But once he became one, Congress created a modest protection for him to air his dissatisfactions—and to belong to worker organizations that incubated and emboldened complaint.

The purpose of this essay is twofold: I seek to contextualize the passage of the Lloyd-La Follette Act, a curiously understudied piece of legislation. In so doing, I situate the Act within the history of the civil service and the development of an increasingly powerful presidency. Secondly, I highlight the labor origins of whistleblowing. The AFL was an early opponent of the gag orders that silenced civil servants. It was responsible for drafting the Act itself, and even approved its only substantial amendment—a prohibition on membership in unions that required a strike. Institutionally, it was a beneficiary of the law, as tens of thousands of postal workers joined unions affiliated with the AFL in the latter half of the 1910s. The labor history of the Act has been obscured by its modern-day admirers, who view it primarily as an embodiment of the separation of powers. Understanding this earlier history of struggle for speech in the federal workforce can help scholars and citizens appreciate the role that labor organizations have played in safeguarding core democratic values like transparency and accountability.

Despite its significance to the history of the civil service and democratic accountability, the Lloyd-La Follette Act is surprisingly understudied by historians. Scholars of American political development who have studied the Act and its politics have understood it largely in terms of what it revealed about the relationship between Congress and the executive branch for control of the administrative state. Little attention has been paid to the underlying speech-related grievances of gagged civil servants. Part of this lacuna lies in the fact that labor historians, as a rule, have tended to focus on the private sector at the expense of the public—particularly in studies of the late 19th and early 20th centuries. But even a study of public sector unionism like Joseph Slater’s Public Workers begins with a historiographical lament at the marginalization of public employees within labor history before moving swiftly to the Boston police strike of 1919. Attention to the history of labor agitation within the railway mail service reveals the centrality of public employee speech and petition rights to the overall political vision of the AFL at the turn of the century.

Legal historian Laura Weinrib has argued that the labor movement has played a neglected role in the development of civil liberties consciousness. Civil liberties, and especially the right to speech, were linked to a “right to agitation”—an economically redistributive vision that “sought to counter the consolidation of capital with organized power of their own.” Weinrib’s study, particularly her focus on the free speech commitments of the political left in the years before the First World War, has shaped my own. The quest for civil servant speech—a right that labor partisans framed as constitutional, rejecting any distinction between rights and privileges or public and private employment—was part and parcel of labor’s vision of the First Amendment as a weapon of the weak against the powerful in the class war. By speaking and organizing without fear of reprisal, organized government employees could also enlist noncombatants into the fight, as Americans might also come to understand their own health, safety, or timely receipt of the mails as implicated by conditions within the railway mail service. This labor history of public employee speech sensitizes us to organized labor’s role in envisioning, expressing, and safeguarding the public’s right to hear information that bears on matters of public concern.

The ideas and language ultimately enshrined in the Lloyd-La Follette Act were developed in response to the constitutional interpretation implied by a decade of gag orders and directives from the Postmaster General. The railway mail service of the early 20th century sheds light on scholarly debates on “administrative constitutionalism,” or the ways that agency officials implement and interpret constitutional rules and norms. The Post Office has long been recognized as a site where officials exercised broad authority over policies with constitutional dimensions—such as suppression of abolitionist literature and a “virtually unreviewable” discretion to censor “obscene” materials. Regulation of speech by postmasters and postal inspectors—in other words, administrative censorship—was pervasive well into the 20th century. Working conditions within the postal service—an instance of a bureaucracy’s “internal rules,” to use Mashaw’s formulation—reveals the Postal Department’s power in attempting to determine the meaning of speech rights in practice. With no input from courts, advocacy by railway mail clerks and their allies in the AFL also refashioned ideas about speech, due process, and separation of powers in the early 20th century.

The Lloyd-La Follette Act also represented a vindication of Congressional prerogative. The history of the gag orders issued under such self-consciously “strong” presidencies as Theodore Roosevelt and William Howard Taft illustrates the perils of presidentialism. Indeed, an important goal of the orders was to maintain “tranquility” in the government’s relationship with railway companies by keeping the public ignorant. Civil service unions have furthered democratic accountability by protecting workers who transmit information to Congress. The twinned history of speech and labor rights suggests that a unionized civil service can serve as a check on presidential power. The flip side of this coin is that a diminution of labor rights and speech rights within the civil service redounds to the benefit of the executive at the expense of democracy.

I begin by sketching the relationship between civil service reform and organized labor in the late 19th century. Reform of the spoils system reshaped the postal service more than any other division of the federal bureaucracy, and by the late 19th century the Railway Mail Service (RMS) was the most important and prestigious branch within the postal system. It was also the most dangerous, spurring clerks to invigorate worker organizations and, eventually, to attempt to affiliate with the AFL. I then turn to the promulgation of agency and executive gag orders intended to suppress the dissemination of grievance, prevent disclosure of information to Congress, and, eventually, to thwart union organizing amongst the clerks. Next, I examine the organized response to the gag orders, as well as the Postal Department’s weaponization of its bureaucracy to ferret out and fire dissident clerks—a move that backfired, resulting in still more unrest and publicity. Finally, I examine Congressional support for the speech rights of postal workers, which culminated in the passage of the Lloyd-La Follette Act, legislation that braided together the interests of railway mail clerks, organized labor, and Congress itself.

If you purposefully set out to concoct a government policy guaranteed to be unconstitutional, here is how you would do it. You would impose a restraint that forbids people from expressing viewpoints on contested political issues that dissent from the government’s official position. And you would justify the restraint by arguing that, if the citizenry were given the whole truth, they might think less of the government.

This restraint doesn’t exist in the fever dream of a constitutional law professor writing a final exam. It’s real. It’s called a “one board” or “one voice” policy, and it appears to be commonplace at school boards, college trustee boards, and other government policymaking bodies across the United States.

These policies typically provide that members of elected or appointed governing bodies are forbidden from expressing disagreement with the body’s majority position once an issue has been voted on. The rationale for them is simple: to create the impression that the board is united—even if the unanimity is feigned.

To cite just one example, school districts across the Flint, Michigan, area reportedly enforce regulations that forbid elected school board members from “publicly sharing their opinions on any school district issues,” requiring board members to submit any questions they receive to the district superintendent. At the higher education level, Michigan State University recently demanded that its publicly elected trustees accede, under threat of discipline, to a code of conduct that forbids sharing any information with the public or press without permission, part of a package of restrictions that is overtly intended to dampen dissent within the often-fractious board. Similar constraints have been imposed by elected or appointed governing boards throughout the country.

This article concludes that “one board” rules are indefensible both as a matter of First Amendment law and as a matter of public policy. There is no doctrinal support for the position that attaining government office means forfeiting all free speech rights. The ability to dissent from the government’s official viewpoint is so foundational to the purpose and function of the First Amendment that it cannot be implicitly waived by assuming a governmental position. In particular, gagging board members who are popularly elected, as opposed to appointed, squarely implicates the First Amendment right of their constituents to receive information—information that may be critical in deciding whether to reelect or replace sitting officeholders.

This article begins in Part I by setting out the boilerplate First Amendment principles that sharply limit the authority of government agencies to restrain speech or to punish speakers for the content of their messages. Part II examines how courts have come to tolerate more speech-restrictive policies in the workplace setting, in deference to the countervailing efficiency concerns of government managers. Part III inquires whether people in elected or appointed lawmaking positions—positions where speaking to the public is an intrinsic responsibility of the role—have the benefit of full First Amendment protection when they speak, or only the diminished level of protection that applies to rank-and-file employees.

In light of these principles, Part IV then examines the phenomenon of the “one board” or “one voice” policy in government service and considers how a constitutional challenge by speakers restricted from expressing dissenting viewpoints might play out. The final section concludes that, both as a matter of constitutional law and as a matter of sound civic policy, it is intolerable to gag policymaking board members—the government employees whose voices the public most needs to hear—from speaking candidly about why they cast their votes.

Judge Mark E. Walker, the chief judge for the Northern District of Florida, began his recent opinion in Pernell v. Florida Board of Governors by quoting George Orwell’s classic novel 1984. Walker wrote: “’It was a bright cold day in April, and the clocks were striking thirteen,’ and the powers in charge of Florida’s public university system have declared the State has unfettered authority to muzzle its professors in the name of ‘freedom.’” The muzzle in question was Florida’s Individual Freedom Act (IFA). The IFA, which was first introduced as the “Stop W.O.K.E. Act,” prohibits “’training or instruction that espouses, promotes, advances, inculcates, or compels … student[s] or employee[s] to believe [eight specified concepts].’” Among the prohibited concepts are the notions that “[a] person, by virtue of his or her race, color, national origin, or sex should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion” and that “[a] person, by virtue of his or her race, color, national origin, or sex is inherently racist, sexist, or oppressive, whether consciously or unconsciously.”

In pointing to the law’s Orwellian aspects—including its name, which Walker deemed a classic example of “’doublespeak,’” and its supporters’ insistence that it protects freedom by restricting speech—Walker touched on something fundamental to the cultural and political setting from which the IFA emerged. The IFA springs from a movement that treats much of the public knowledge sector, particularly public education, as leftist and indoctrinating. It also relies on a populist sensibility that separates its supporters—”the people”—from those who would indoctrinate them. From this perspective, state control of pedagogical speech is the very opposite of censorship: It is freedom, liberating ordinary students and parents from mind control by the overreaching others.

The IFA’s supporters also rely heavily on a legal argument that parallels their political and cultural rhetoric: States are entirely unconstrained by the First Amendment when they restrict pedagogical speech in public schools because such speech belongs to the state and, through the state, to the people. The voice of the people is thus expressed, not restricted, through such legislation. This argument—which lies at the heart of the IFA’s defense in First Amendment challenges against it—represents a very broad interpretation of a line of judicial precedent known as government speech doctrine. Government speech doctrine embodies the notion that when the government employs personnel or subsidizes private speakers to convey the government’s own message, the First Amendment simply does not apply; the government may impose whatever restrictions it likes on the resulting speech.

The IFA is one of hundreds of state and local measures adopted since 2020 to restrict classroom teaching on race and gender in public schools (referred to in this essay as “pedagogical gag laws”). Although most of these laws apply to K-12 public schools, a significant minority also target public colleges and universities. The same movement that gave rise to these actions has also set its sights on public school libraries. PEN America reports that, since 2021, there has been a substantial rise in content-based removals of, and restrictions of access to, school library books due to “parent or community challenges, administrative decisions, or in response to direct or threatened action by lawmakers or governmental officials.” During the 2022–2023 school year, individual and group-coordinated challenges to book titles were supplemented and “supercharged by a new source of state pressure”: state legislation imposing content-based restrictions on the types of books that public school libraries could make available to students (referred to as “book removal laws”).

These measures are fueled by the same discourse of freedom and populism as is the IFA, and their defenders have raised similar government speech arguments in litigation as have the IFA’s supporters. A close look at this discourse and these arguments illuminates the nature and dangers of each and their relationship with one another. Indeed, a significant danger of an unfettered government speech doctrine is that it will constitutionalize a type of doublespeak, enabling the state to impose restrictions on public knowledge enterprises—such as public education or libraries—that fundamentally distort the very nature of those enterprises. For example, legislation requiring public school science teachers to refrain from expressing agreement with the scientific method or evolution while on the job would distort the very thing—science education—that a state purports to provide. Such distortion effectively leverages a field’s norms and perceived legitimacy to launder government messaging, making it appear to be something more than the product of a political directive. This skews public knowledge and debate in service of official state messaging and undermines a core function of free speech in the United States: to enable self-government through an informed and capable citizenry.

There is, however, a path to limit the reach of government speech doctrine when its effect would be distorting, and its rough beginnings can be found in existing judicial precedent. I call this path the anti-distortion principle. It amounts to a wariness of state-imposed conditions on public knowledge programs that distort the nature of the programs or their communicative outputs. For example, the Supreme Court has held that states may create speech forums and specify that those forums serve only limited purposes. When a state does so, however, “[it] must respect the lawful boundaries it has itself set. The State may not exclude speech where its distinction is not ‘reasonable in light of the purpose set by the forum,’ nor may it discriminate against speech on the basis of its viewpoint.” Similarly, in evaluating the constitutionality of federal funding conditions imposed on public libraries, the Supreme Court has assessed their compatibility with the ordinary practices of libraries and librarians.

In this essay, I use ongoing litigation involving three pieces of state legislation—the IFA, a New Hampshire pedagogical gag law, and an Iowa book removal law—as jumping-off points to consider the public discourse in support of such laws, its connection to the government speech arguments made by the defendants in their respective litigations, and the dangers that these arguments reveal about an overly broad government speech doctrine. I also explore the anti-distortion principle as a limit on the government speech doctrine’s reach and hence as an antidote to these dangers.

In Part I, I situate the recent wave of pedagogical gag laws and book removal laws (collectively “educational suppression laws”) within a broader movement, one that itself is grounded in a history of right-wing populist hostility to public education and employs rhetoric about freedom and democracy. In Part II, I provide a high-level overview of major judicial precedents relating to government speech doctrine, with special emphasis on cases involving educational institutions. In Part III, I discuss judicial decisions that bear traces of an anti-distortion principle, again highlighting those precedents that involve educational institutions and libraries. In Part IV, I discuss ongoing litigation involving three examples of state educational suppression laws from, respectively, Florida, New Hampshire, and Iowa. I focus especially on the government speech arguments and responses thereto raised in these cases. In Part V, I draw from the cases surveyed in Parts III and IV to consider how we might strengthen and build on anti-distortion reasoning to limit government speech doctrine going forward.

Public school teachers have found themselves in a free speech vise. Their speech has become more regulated than ever by both the left and right. In particular, public school teachers across the country have found their speech relating to LGBTQ students and issues tightly regulated by government-mandated speech codes. In left-leaning states, some religious teachers have objected to schools forcing them to address their transgender and nonbinary students by their preferred names and pronouns under anti-discrimination policies. In right-leaning states, teachers have objected to the silencing of any discussion around LGBTQ issues under “Don’t Say Gay” laws. In both cases, the government seeks to regulate the content of the teachers’ speech, an action which would, in other circumstances, raise serious First Amendment questions. Does this level of control over what public school teachers may say in their classrooms violate the Free Speech Clause? Should it?

Under existing free speech jurisprudence, anything that teachers say while discharging their job responsibilities is not protected by the Free Speech Clause. When teachers speak “pursuant to their official duties,” like classroom instruction, they are deemed to be speaking as the government and not as a private citizen. This classification as government speech is significant because the Free Speech Clause protects private speech from the government, not government speech from itself. In fact, the relatively new government speech doctrine declares that the Free Speech Clause does not cover government speech.

This essay argues that the fundamental problem with the government employee speech doctrine is that it mistakenly assumes that the Free Speech Clause protects only speakers and not audiences. After all, the premise of denying any free speech protection to public employees speaking pursuant to their official duties is that the government, rather than a private person, is the real speaker. But the Free Speech Clause cares as much about ensuring an unimpeded stream of speech for audiences as it does about ensuring that speakers have the freedom to speak their mind. Prior cases involving government employee speech astutely recognized that the Free Speech Clause protected audiences as well as speakers; indeed, it trained its sights on protecting audiences rather than speakers. Unfortunately, this insight has been lost in the abrupt adoption of the government speech doctrine.

If the LGBTQ regulations are evaluated with an eye on the value of the public school teacher’s speech for audiences rather than speakers, then requiring teachers to use appropriate pronouns for transgender and nonbinary students benefits the students addressed, while barring teachers from discussing issues related to sexual orientation and gender identity actually harms rather than helps student audiences, which include many LGBTQ students.

Part I of this essay describes the competing laws regulating teachers’ speech about LGBTQ students and LGBTQ subjects. One set requires public school teachers to use the names and pronouns that match their students’ gender identity. Another, exemplified by so-called “Don’t Say Gay” laws, forbids instruction on sexual orientation or gender identity altogether. Part II describes current law regarding government employee speech, particularly the rule that withholds free speech protection for public employees speaking pursuant to their official duties. Part III explains how this rule overlooks that the Free Speech Clause is as much about audiences as about speakers; therefore, the fact that the government alone may be speaking should not lead to the conclusion that government employee speech deserves no free speech protection. Part IV applies a more audience-focused free speech test to public employee challenges to the laws from Part I.

The First Amendment, as interpreted by the federal courts, provides government workers a right to associate in unions but no right to bargain collectively or to strike. Indeed, it is a crime for employees of the federal government and of many states to participate in a strike or even to join an organization that asserts the right to strike against the government. In some states, public sector workers are also prohibited from engaging in collective bargaining. States can discipline and fire workers who seek to bargain collectively about their working conditions or who, along with their coworkers, withdraw their labor in protest of their conditions.

Yet, this interpretation sits uneasily with the text of the First Amendment, its purposes, and the Supreme Court’s First Amendment doctrine in other contexts. The amendment protects “the freedom of speech, … [and] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The Court has found “a corresponding right to associate with others,” including “in pursuit of … political, social, [and] economic … ends.” And the primary purpose of the First Amendment, the Court has held, is to advance democratic self-governance.

How is it that the Court has not understood collective bargaining and strikes among public sector workers to fall within the First Amendment’s ambit? Public sector union activity involves expression, assembly, association, and petitioning. Workers’ ability to form unions and to engage in concerted action in support of their shared goals is an important part of democratic governance. Through unions, workers engage in active citizenship; through workers’ association with one another, they express their views collectively and engage the government and the public on issues of public concern. Indeed, in the context of protecting the putative speech rights of union objectors, the Court has recognized that public sector collective bargaining is closely intertwined with politics and governance. Yet, with virtually no analysis, the Supreme Court and numerous lower courts have dismissed arguments for First Amendment protection of public sector bargaining and strikes.

The Supreme Court’s parsimonious approach is long-standing. But, as this essay shows, public sector workers have for generations advanced a different—and more persuasive—interpretation of the Constitution. As early as the 1800s, federal government workers engaged in collective speech, assembly, and petition by striking and lobbying the government to redress their low wages and poor labor conditions. Though they made little progress for over a century and often faced significant repression, during the 1960s and 1970s, strikes by tens of thousands of public sector workers led state legislators to pass new laws that enabled collective bargaining. In a few jurisdictions, states also passed laws that protect the right to strike. And although the constitutional doctrine endured, numerous dissenting judges powerfully laid out the contrary case.

Since 2018, substantial numbers of public sector workers have, once again, engaged in pickets, protests, and strikes, even in states in which doing so is illegal. In so doing, they are reopening the question whether such activity should be considered beyond government proscription and protected as a fundamental right. Some cities and states have sought to restrain workers, including by enacting new laws that limit picketing, reduce union resources, and restrict the scope of bargaining, as well as by seeking injunctions against particular strikes. More recently, the second Trump Administration has launched an unprecedented assault on government unions. Through a series of executive orders, it has sought to reclassify thousands of federal workers as at-will employees; banned collective bargaining in numerous agencies where union rights have long been in place; refused to process automatic union dues deductions from employee paychecks; prohibited pro-union posters in some federal worksites; and terminated numerous existing collective bargaining agreements, ultimately stripping a million federal workers of union rights. The future of free speech and association rights for federal government workers is very much up for grabs.

This Essay explores the First Amendment issues pervading public sector unions’ organizing, bargaining, and strikes. Part I looks at the history of public sector unionism, highlighting the extent to which these union efforts have implicated core First Amendment concerns. Part II examines how it came to be accepted doctrine that public sector employees lack a constitutional right to bargain and strike, although they have a right to unionize. Part III draws from dissents by federal and state court judges to elaborate the case for a First Amendment right to bargain and at least a qualified right to strike. It locates that right in the First Amendment’s text, history, and democratic purposes, and in existing Supreme Court doctrine governing analogous contexts—and it explains why arguments to the contrary cannot withstand scrutiny. Part IV turns to the rise of public sector labor militancy since 2018, as well as to the Trump Administration’s unprecedented recent attacks against public sector unions. It shows that, although the Supreme Court is unlikely to recognize public employee rights to bargain and strike, government workers and their unions are collectively exercising their First Amendment rights, engaging in a form of constitutional lawmaking from the bottom up. They have already won some support from political leaders. Ultimately, Congress, states, and a future President could make real the First Amendment’s promise, notwithstanding the Supreme Court’s erroneous doctrine.

In our polarized, paranoid politics, the speech of public employees has produced political controversies across multiple fronts. The culture wars that have entangled the nation’s classrooms directly implicate the speech rights of educators. The war over the regulatory and administrative state directly implicates the rights and political activity of civil servants. Labor conflict within the public sector directly implicates the speech rights of both unions and union members. And the speech acts of public employees—tweeting a political opinion, blowing the whistle on official misconduct, or challenging a policy decision—easily become sites of political controversy, conspiracy theorization, and partisan conflict.

Each of these domains and developments has been the subject of deep debate in many fields of academic inquiry. But they have not been treated as instances of a broader problem: how a modern, bureaucratized democracy should manage the speech of its government employees. The issues are complex, requiring the balancing of competing democratic values: transparency versus autonomy; delegation versus supervision; objectivity versus diversity; tolerance of debate and disagreement versus the need to reach some form of functional consensus for collective governance to continue. They require parsing the intersection of First Amendment law, administrative law, labor law, democratic theory, and the brute science of American political contestation. It is no surprise that the law, philosophy, and politics of public employee speech are fraught and unsettled.

In the spring of 2024, the Knight First Amendment Institute at Columbia University gathered an interdisciplinary group of experts to explore these problems. Over the course of a two-day event—a private workshop followed by a public symposium—we debated and discussed normative and doctrinal problems in many of the vexed subfields of the law: academic freedom; education policy; whistleblowing and transparency; and unionization in the public sector. The five articles in this collection (plus a sixth, published elsewhere) are one outcome of those enlightening, clarifying conversations.

Fittingly, given the range and complexity of the legal and political problems involved, these six articles cover a diversity of subjects and make a range of interventions in a range of fields. They do not speak with one voice. But in this introduction, I want to draw out a number of themes and analytical approaches that I have taken both from participating in the events at the Knight Institute and from reading these articles alongside one another.

How do you sell the idea of free speech to people who worry that words hurt? In the last few years, there have been increasing demands, most prominently on college campuses, to shut down hateful speech. Many Americans, especially younger adults, think that such speech ought to be restricted. A defense of free speech needs to explain why we should let people say vile things that no one should ever say to anyone….

The familiar arguments for free speech aren’t responsive to these concerns. Consider a few pronouncements by the Supreme Court. The judges sometimes focus on good consequences: “It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” “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.” Sometimes they just invoke rights: “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’”

Suppose that you (like many today) are unmoved by these considerations, that you don’t believe that the good consequences are likely to follow, or that you don’t believe that people have a right to say worthless and harmful things. What reason have you to want to live in a regime that protects such speech?

Fortunately, some classic formulations of free speech do not depend on optimism or the bald claim of rights. John Stuart Mill’s essay On Liberty is best known as an attack on government censorship. But the state is not the only censor he worries about.

He denounces “a social tyranny more formidable than many kinds of political oppression, since, though not usually upheld by such extreme penalties, it leaves fewer means of escape, penetrating much more deeply into the details of life, and enslaving the soul itself.” He fears a population “whose whole mental development is cramped and their reason cowed by the fear of heresy,” and “who dare not follow out any bold, vigorous, independent train of thought, lest it should land them in something which would admit of being considered irreligious or immoral.” John Milton made a similar argument in 1644: censorship can induce a “gross conforming stupidity,” and officials should understand that “that which purifies us is trial, and trial is by what is contrary.”

These formulations focus not on the collective benefits of free speech but on the kind of person one wants to be. It is good to be awake rather than asleep, to have contact with the actual minds of other people instead of living one’s life in a solipsistic haze. And it is good to be resilient in the face of stress. A regime of free speech is more likely to produce people of that sort. That produces a distinctive kind of collective social unity: a society of citizens who interact on terms of mutual respect, by genuinely knowing what one another think and discussing their differences like adults.

I like living in a world where people can say what they’re thinking, even if I am repelled by what they say. Other minds are interesting. I’m curious about how they work. When I ask, “how can you possibly believe that shit?,” it’s not a rhetorical question. I really want to know what’s true, and it’s true that you believe what you believe and that you probably can’t help believing it. It hurts to know that you believe that awful stuff, and I’m offended, but the hurt is worth enduring. I want to be someone who does not decompensate, or feel the need to summon the authorities, when faced with the truth.

The counterarguments tend to invoke social justice. But social justice is unlikely to be achieved by people who are brittle and vulnerable. I tell my law students: If you can’t stand to look at arguments you find repellent, you won’t be able to respond to them when you encounter them in litigation. And you’ll lose and that would be bad.

Concern for character is the primitive origin of the idea of free speech. It is a persistent theme, of older provenance than democracy, truth, or autonomy. It still operates silently. It is one of the idea’s deepest attractions: the possibility of holding one’s views on purpose, with full awareness of the alternatives. It is central to the arguments of John Milton and John Stuart Mill, and is an important theme in the writings of Louis Brandeis, Alexander Meiklejohn, and others. All think that a regime of free discourse will make us into better people. We ought to develop our minds and characters by encountering all sorts of ideas, including evil and destructive ones.

And the first part of the Introduction, which sets the stage:

In the fall semester of 2020, Prof. Jason Kilborn, of the University of Illinois at Chicago’s John Marshall School of Law, gave a routine exam in his Civil Procedure II course. One of fifty questions offered a hypothetical in which a company, sued for discrimination, had obtained evidence that damaged its own defense. The question was whether the company must disclose that evidence to the plaintiff—an ordinary question of law.

In the scenario described on the exam, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (The answer, by the way, is yes: The company must disclose the information if it is asked for probative evidence.)

Kilborn had used the same question for years, but this time it provoked an uproar. The Black Law Students Association went to the law school dean and to the central administration, demanding that Kilborn be stripped of his committee assignments. It denounced him on Instagram, LinkedIn, and Twitter, and filed a complaint with the Office of Access and Equity. It also issued this statement:

The slur shocked students, created a momentous distraction and caused unnecessary distress and anxiety for those taking the exam…. The question was culturally insensitive and tone deaf. It lacked basic civility and respect for the student body, especially considering our social justice efforts this year…. When asked how reading those words while trying to complete a law school exam impacted her, one student stated, “I was completely flustered by the question and had to take several moments to gather myself prior to proceeding with the exam.” The student added, “I had to seek counsel immediately after the exam to calm myself from what I had just experienced.” Another student stated that upon reading “n___” … she became “incredibly upset” and immediately began to experience “heart palpitations.” One Black student was left in a hopeless mental state after learning about the words implicated on the exam…. He added, reading “n___” and “b___” was triggering, and made him feel as if he no longer belonged at the school.

The question of course was entirely appropriate, and students who can’t cope with seeing any reference to this word have no business being lawyers. If lawyers are going to be competent to do their jobs, they must be able to handle the fact that humans sometimes do and say very bad things. Discrimination is among those bad things. Students must thus be able to know the facts of discrimination lawsuits and be able to perform legal analysis in the face of those facts. In the real world, racist slurs are not bowdlerized as they were on Kilborn’s exam.

The school’s administration, which ought to have firmly told the students that, instead pandered to them. The dean placed Kilborn on indefinite administrative leave, cancelled his classes hours before one was set to meet for the first time, cancelled his committee memberships, and barred him from campus and from all faculty communications. It later justified these sanctions by lying about the facts.

Here I want to focus on the pedagogy of this performance. It encourages the students to collaborate in a narrative of fragility that damages them, both intellectually and personally. And that is a window into one of the most important benefits of freedom of speech, one that is curiously neglected in contemporary free speech theory—a benefit that is individual rather than collective, and so does not depend on faith that an unregulated marketplace of ideas will produce good collective outcomes.

John McWhorter, a black academic who is not unfamiliar with racial slurs, offered this response to the students’ narrative:

As all of us can detect on some level, black students who purport upset of this degree, at passing things that their very equivalents just some years ago never even noticed, are faking it…. Such students are not fragile; they are histrionic. They are pretending to be hurt….

These students are acting this way out of the simple human temptation of the noble victim complex. This is a human personality type, but it can manifest itself in countless ways depending on circumstances. For a black person given to the temptation for any number of reasons, the handiest way of giving it vent is to exaggerate the extent to which racism affects you day to day. The formal expression is one of anger and injury, but behind this is a balm, the sense that you are worthy on some level of a cookie or a pat on the head just for getting through your days and weeks…. It gives you a sense of significance as a member of a group on a fraught but epic trajectory towards justice. You, in times when civil rights can seem so much less dramatic a thing than it was 50 years ago and before, have a sense of being part of that “Struggle,” as it used to be put….

Normal people don’t fall to pieces when seeing “n*****” on a piece of paper, regardless of their race. The neoracists who have barred Jason Kilborn from campus in pretending this isn’t true are operating upon an assumption that black people are morons. This is a rather fascinating rendition of “antiracism” ….

The repression here is professionally nonsensical, like tailoring a medical school curriculum to students who can’t stand to be around sick people. But McWhorter’s response emphasizes that it also encourages students to be (or at least to represent themselves as) contemptible, too delicate to withstand contact with reality.

This pathology spans the political spectrum. Recent statutes in fourteen Republican-dominated states prohibit any teaching in public schools—and, in ten of them, in state universities—of “divisive concepts,” among them that anyone “should feel discomfort, guilt, anguish, or any other form of psychological distress” on account of his or her race or sex. There happen to be uncomfortable facts that implicate these identities—notably, that white people enslaved black people for centuries. The consequence of this vague legislation, like that engendered by the Kilborn episode, is confusion and fear. Teachers fearing for their jobs have been “avoiding lessons that discuss people who are not heterosexual, white, Christian, or American.” Books dealing with race, gender, or sexual orientation have been purged from school libraries. Textbooks have been rejected for containing forbidden material, and publishers have self-censored in response.

In state universities, faculty have cancelled courses, censored their syllabi, and avoided controversial topics. These statutes typically forbid them to “teach, instruct, or train” anyone “to adopt or believe any divisive concepts,” and declare that this does not forbid impartial teaching. But these formulations don’t work. One faculty member explained:

I am a philosopher and it is my job to present as many arguments and counterarguments as I can and to teach my students how to evaluate these. I am fearful that positions that I defend in the line of duty—whether or not I actually hold them—can and will be used against me. How can I be a competent teacher in such a climate?

The normal imperatives of teaching now compete with a mandate that there are some ideas that students—even college students—are too frail to be exposed to.

This paper examines how the European Court of Human Rights’ (ECt­HR or Court) hate speech jurisprudence has been structurally reoriented by the Court’s response to an increasing number of applications brought by victims of hate speech. Whereas earlier case law predominantly assessed hate speech under Article 10 of the European Convention on Human Rights, focusing on the permissibility of restrictions on expression, recent victim-initiated claims have directed the ECtHR’s analysis towards Articles 8 and 14 and thus towards the question of State responsibility for pro­tec­tion against harm caused by third-party speech.

Through a reading of the ECtHR’s case law, this paper shows how the Court’s response to this applicant-driven expansion has recalibrated the balance between dignity, equality, and freedom of expression. The paper argues that the resulting framework risks limiting the doctrinal safeguards traditionally associated with Article 10 analysis.

In addition, there has been an increasingly expansive understanding of who qualifies as a “victim” of hate speech, extending this qualification beyond direct targets who are in protected groups to include individuals who are merely associated with such groups. The paper argues that the Court’s expanding expectation of positive obligations owed by States to their citizens in relation to the exercise of their rights may incentivize over-intervention by domestic authorities and chill legitimate public debate.

When the government regulates conduct, it does not always do so directly. Increasingly, the government regulates conduct indirectly—by pressur­ing some intermediary to do the direct regulatory work for it. This form of indirect regulation has raised considerable concern in the context of speech regulation. Scholars and activists have sounded alarm bells that this form of indirect speech regulation, typically referred to as “jawboning,” often violates the First Amendment because it allows the government to censor expression on the cheap. Indeed, during its 2024 term, the Supreme Court heard two different First Amendment jawboning cases. While one case, Murthy v. Missouri, was dismissed on standing grounds, the Court reaffirmed, in NRA v. Vullo, that coercive jawboning of protected expression violates the First Amendment.

Despite jawboning cases taking up a substantial portion of the Court’s docket during its 2024 term, little scholarly discussion about jawboning can be found. The scholarly discussion of jawboning that does exist tends to converge on a standard picture—that jawboning is an inherent threat to freedom of expression and that it is, therefore, necessarily normatively undesirable. Thus, while scholars have identified possible perils of jawboning, practically no attention has been paid to the promises.

This Article rejects the standard picture. In a nutshell, this Article argues that we ought to be more ambivalent about jawboning, or, in other words, that whether jawboning is normatively desirable turns on a fine-grained contextual analysis that’s glossed over by the standard picture.

But first, we must define “jawboning,” as there is little consensus in the literature about what it even means for the government to jawbone. After surveying various conflicting definitions of jawboning, Part I defines jawboning as a triadic relationship between the government, an intermediary, and some third party, where (a) government official(s) communicate with a private intermediary (b) in a way that pressures—but does not persuade—the intermediary to do something that (c) influences the third party’s conduct and where (d) the government official intends to target the third-party’s conduct by means of its pressure on the intermediary.

Building on the definitional work in Part I, Part II situates jawboning in relation to the broader governance literature. Part II argues that jawboning is a form of collaborative or “new” governance—a public/private regulatory partnership designed to achieve some public regulatory objective. Jawboning is a “third way” between direct government regulation and pure private ordering.

After articulating a functionalist framework for evaluating jawboning, Part III explores the conditions under which jawboning, as a form of collaborative governance, is and is not normatively desirable. From this discussion, we see that the normative case for or against jawboning turns on a variety of contextual factors about the regulatory environment that are glossed over by the standard picture.

Having laid the descriptive and normative foundations, Part IV turns to First Amendment jawboning doctrine. After identifying two significant deficiencies in existing First Amendment jawboning doctrine, I propose that courts should analyze several factors presently excluded from First Amendment jawboning analysis: (1) the government’s motive for jawboning; (2) the value of the targeted expression; and (3) the weakness of the intermediary and, relatedly, the intermediary’s independent incentives to regulate third-party speech.

The gravest contemporary threats to expressive freedom do not always take the form of statutes or criminal sanctions. Increasingly, they take the form of procurement decisions, grant terminations, security-clearance revocations, and regulatory designations—the discretionary instruments of executive administration. When the executive deploys these instruments to penalize disfavored viewpoints while preserving the appearance of ordinary governance, it engages in what I have elsewhere called expressive governance. This phenomenon is doctrinally elusive precisely because it operates in domains where courts have long, and for sound institutional reasons, extended substantial deference to executive judgment.

A recent dispute crystallizes the problem. After a leading artificial intelligence company publicly maintained that its models could not be deployed for use in autonomous lethal weapons or the mass surveillance of citizens, and declined contract terms that would have required otherwise, the government designated the company a “supply-chain risk to national security”—a classification historically reserved for foreign adversaries—and moved to foreclose its commercial relationships across the federal defense ecosystem. The designation was framed as a national security judgment. But the sequence of events, the named targeting, and the disproportion of the response suggest a different object: retaliation for protected expression, accomplished through an administrative label. One might resist this inference, reading the episode as the disciplining of a difficult counterparty rather than retaliation for a viewpoint. The framework developed here does not foreclose that reading — it is designed to test it. Part IV takes up the objection directly.

Building on work I have developed elsewhere, this essay shows how the existing First Amendment doctrine supplies the governing principles to address expressive governance but lacks an administrable method calibrated to the low-visibility, discretion-cloaked form the problem now assumes. It then proposes such a method: a framework of three interlocking tools—a clear-statement requirement, a burden-shifting rule, and an evidentiary presumption of systemic distortion where the executive targets expressive intermediaries. The framework neither invents a new tier of scrutiny nor relaxes the deference that executive administration ordinarily warrants. Rather, it allocates proof and construes authority so that genuine managerial decisions remain insulated while viewpoint retaliation cloaked in discretionary form becomes detectable.

In recent years, a lively scholarly discourse has emerged about whether and how the U.S. First Amendment protects generative AI outputs. Some have argued that such outputs are protected at the very least by the rights of AI users to receive information and to create their own speech. Others would not recognize gen AI outputs as receiving such First Amendment protections. The issue of whether gen AI program creators are entitled to free speech protections for such outputs has also spurred a variety of reactions.

As this discourse on the First Amendment and gen AI unfolds, it is also important to reflect on what the global freedom of expression standard has to say on the matter. This standard will affect discussions about national and regional regulatory approaches to gen AI throughout the world. In addition, global corporate responsibility standards call on companies to respect international human rights norms in their operations, which may also impact how businesses that provide gen AI services approach their activities.

Part I of this Article explores the scope of the existing global free expression standard. Part II considers the standard’s application to gen AI outputs, including in various governmental and corporate contexts. Ultimately, this Article maintains that the global free expression standard protects the rights of individuals to seek and receive information of any kind, including gen AI outputs.

In addition, if human speakers share gen AI outputs as part of their own speech, this global standard also protects those speakers’ right to impart information. Governmental attempts to restrict gen AI outputs are therefore subject to the standard’s safeguards on how this human right can be limited. And companies providing general-purpose gen AI services should also respect human rights, including freedom of expression, in their operations.

Starting in the 1980s under President Reagan, the FCC curtailed or abandoned most of the content regulations of broadcasting that it had earlier promulgated. That pattern continued through the Biden Administration: Such regulation was largely dormant. Statutes regulating content existed (although, with the episodic exception of indecency, they were interpreted narrowly). But regulations created by the FCC were either repealed (notably the fairness doctrine), never applied (e.g., the broadcast hoax rule), or applied so rarely and weakly as to be toothless (e.g., the broadcast news distortion policy).

Broadcast television may seem like a relic of the past to some readers of this Article. But it garners more than 20% of all television viewing, and the legal issues it raises are important. The developments presented in this Article highlight important questions about the desirability of regulation and tell an instructive story about roads taken and not taken.

There are two key elements of the legal landscape for broadcasting. First, every license is for a term of years and then is subject to renewal under the statutory “public interest, convenience, and necessity” standard. The same public interest standard applies to any application to transfer a license from one entity to another, which means that any corporate merger or acquisition involving licenses requires the FCC finding that the transfer is consistent with the public interest. And, as judicial opinions and Commission practice make clear, the public interest standard extends well beyond concerns about competition.

How can the FCC exercise such pervasive control over a means of communication? That implicates the second key element of the legal landscape—Red Lion Broadcasting Co. v. FCC and FCC v. Pacifica Foundation.

Concerns about the public interest standard and Red Lion/Pacifica are not new. What, if anything, changed with the coming of the second Trump Administration?

First, the second Trump Administration has been more interested in regulating broadcast content than any of its predecessors since Reagan….

Second, the Supreme Court’s likely overruling of Humphrey’s Executor v. United States will mean that “independent agencies” like the FCC are subject to presidential control. …

Third, Trump has imposed more control over the executive branch than any President in at least a half century….

The FCC’s self-restraint on content regulation of broadcasting from Reagan through the Biden Administration could have been rejected at any time. One question is why the second Trump Administration has been more aggressive than its predecessors in pressuring broadcasters. Another is why its predecessors (including the first Trump Administration) did not make similar choices. There is of course no easy answer to either question, or to the related question of the role played by regulatory philosophy, political considerations, powerful interests, and the like in producing the restraint from Reagan through Biden or the apparent waning of such restraint in the second Trump Administration….

Although the story of broadcast content regulation from Reagan through Biden was largely one of continuity, outside of indecency regulation the biggest supporters of a broad and flexible application of the public interest standard have generally been on the political left, and the biggest detractors have generally been on the political right. Thus a question going forward is whether the second Trump Administration has discredited, or will discredit, broad governmental power for those on the political left—particularly with respect to speech—and has led, or will lead, those on the political right to be more supportive of such power….

This Article is … a case study of the easiest form of communication for a presidential administration to effectively exert some control over, but broadcasting is not the only medium an administration can influence. In this way, this Article implicates broader questions about regulation: What, if any, forms of content regulation are normatively desirable? How meaningful are speech protections in a world where the government can exert unseen pressure? How effective can laws be in constraining presidential administrations that maximally exercise the levers of power available to them?

Part I lays out the FCC’s strikingly broad statutory authority over broadcasting and the Commission’s early history of aggressive content regulation.

Part II focuses on the FCC’s curtailment of its regulations. This curtailment began in the Reagan Administration, and many commentators expected it to be reversed under a Democratic President. But, with the exception of indecency regulation in 1987 and the early 2000s, the light-touch regulation initiated under Reagan largely persisted through Biden.

Part III turns to the question of how this regulatory regime can be consistent with the First Amendment. The answer lies in the reasoning and holdings of Red Lion and Pacifica. Those cases could have been generative, but the Supreme Court has limited their application to broadcasting.

Part IV notes that not only can a new presidential administration revive old doctrines but it also can create new ones, because administrative law doctrines allow it to do so. These administrative law doctrines, combined with the public interest standard, thus greatly empower the government.

Part V considers possible ways of preventing or limiting a reinvigoration of content regulation of broadcasting. Overruling Red Lion and Pacifica or repealing the public interest standard are obvious options, but other options are available—notably lawsuits to stop jawboning.

Part VI, however, highlights the limits on these options. A President who makes it clear that he will impose maximum costs on those he dislikes by berating them can effectively achieve the results of jawboning without having to issue any threats; his targets will know that failing to do the President’s bidding will lead to costly castigation. This highlights an important point that transcends broadcasting: Norms do a tremendous amount of work, so a breakdown in norms has massive implications.

Since Hamas’s October 7, 2023 attack on southern Israel, the start of the subsequent war in Gaza, and an outbreak of campus protests expressing vehement hostility to Israel, dozens of universities across the United States have faced lawsuits, administrative complaints, and federal investigations alleging dereliction of their Title VI duty to protect Jewish students from discrimination. These Title VI claims typically include allegations that universities have been deliberately indifferent to the way actions by anti-Israel protesters have created a severe and pervasive hostile environment for Jewish and Israeli students.

Public attention has focused on perceived hateful speech by anti-Israel protesters. This includes slogans seen as calling for the destruction of Israel (e.g., Arabic chants of “From River to the Sea, Palestine is Arab”); speech that is often interpreted as calls for violence against Israel, Jews, and their supporters (e.g., “Globalize the Intifada” and, in Arabic, “Khaybar Khaybar oh Jews, the army of Muhammad will return”); expressions of support for Hamas in general (e.g., “Glory to the Martyrs”) and its October 7 crimes in particular (e.g., flyers that feature paragliders, glorifying the Hamas terrorists who massacred Israelis after flying into Israel on paragliders); and pro-Hamas events on October 7, 2024, the anniversary of the massacre.

Judicial decisions and scholarly commentary have tended to frame the Title VI claims primarily as conflicts over political expression of this sort by anti-Israel protesters. In late 2023, the federal Department of Education advised university officials that in the context of anti-Israel protests, constitutionally protected speech alone can create a hostile environment that universities are obligated to address, albeit without suppressing speech.

Much of the subsequent debate, in courts and otherwise, has been over whether rhetoric widely perceived as antisemitic or as endorsing violence in the abstract can ordinarily support hostile-environment liability without violating the First Amendment. Jewish students’ claims should be rejected, some argue, as objections to rhetoric the students find deeply offensive but that is constitutionally protected. A recent attention-getting article asserted that Jewish students’ claims may not ordinarily rely—even merely as evidence of an overall hostile campus climate—on campus protesters engaging in such incendiary rhetoric.

This Article argues that prevailing analyses of post-October 7 Title VI claims are incomplete and are often legally mistaken because they ignore or misinterpret a central element of hostile-environment doctrine: context. Hostile-environment law asks whether conduct is so severe, pervasive, and objectively offensive that it effectively denies students access to educational opportunities. This inquiry is contextual and depends on the “constellation of surrounding circumstances.”

The context, or surrounding circumstances, neglected by many analysts is the surge of antisemitic assaults, threats, vandalism, and intimidation on and around American campuses. When rhetoric endorsing or glorifying violence occurs against a backdrop of credible threats and actual violence, it may reasonably be experienced as threatening even if the same words would otherwise be understood in a different context as merely abstract or ideological rhetorical excess or overkill. Treating Jewish students’ fear of violence as irrelevant or irrational improperly strips the contextual analysis from the “reasonable person” standard used in hostile environment law.

Yet recent judicial decisions, to the extent they have recognized it at all, have treated Jewish students’ fear of violence as either irrelevant or irrational, even where that fear is grounded in recent incidents of assault, intimidation, and lawless conduct directed at Jewish students and at Jewish institutions. In doing so, courts have effectively assumed away the very conditions that may make certain speech threatening rather than merely offensive.

This does not mean that chants, slogans, flyers and other speech perceived as endorsing violence automatically created or even contributed to a hostile environment. Moreover, even if speech does create or contribute to a hostile environment for Jewish students, such speech is constitutionally protected, so long as it does not rise to the level of incitement or a “true threat.” Universities therefore do not and cannot have a Title VI obligation to suppress protected political speech.

The question, however, is whether Jewish students may have a valid Title VI action for university malfeasance or inaction when it comes to policing behavior by protesters that is not constitutionally protected. The violence-endorsing speech, rather than being the basis of a Title VI claim, serves as relevant context for why the universities had a Title VI obligation to enforce their own rules and the law.

As described later in this Article, since October 7, Jewish students have faced a surge of physical assaults, credible threats, vandalism, and coordinated intimidation against them on campuses nationwide, alongside a broader national wave of antisemitic violence. Against that backdrop, Jewish students’ fear of violence is not speculative or subjective, but empirically grounded. When such fear undermines students’ access to education, universities have a Title VI obligation to address the overall hostile climate. They can do so, without suppressing protected expression, by enforcing neutral rules against trespass, vandalism, threats, and other illicit conduct not protected by the First Amendment.

Failure to account for students’ fear of violence has concrete doctrinal consequences. Courts have dismissed Jewish students’ hostile-environment claims at the pleading stage by characterizing allegations as mere discomfort with opposing viewpoints, even where plaintiffs allege assaults, threats, encampments that block access to parts of campus, and administrative indifference to lawless conduct. By excluding fear of violence from their contextual analysis, these decisions collapse the distinction between ideological offense and intimidation, and they risk turning Title VI’s “reasonable person” standard into an abstract exercise divorced from reality. Worse yet, some courts and commentators have treated illicit actions by anti-Israel protesters as if they are constitutionally protected speech.

This Article proceeds in five parts. Part I documents the surge of physical violence, threats, and intimidation targeting Jewish students on American campuses since October 7, 2023, demonstrating that rhetoric endorsing violence operates within an atmosphere of tangible danger. Part II situates campus developments within a broader national context of antisemitic violence against Jewish individuals and institutions, reinforcing the reasonableness of Jewish students’ fears that they will be the targets of violence. Part III examines the organizational and ideological ties between leading sponsors of anti-Israel campus protests and groups that openly endorse violent “resistance,” explaining why certain chants and slogans may reasonably be perceived as menacing in context. Part IV draws out the implications for Title VI doctrine and university compliance, arguing that courts can and should require universities to address illicit conduct and threatening environments without infringing on First Amendment protections. Part V addresses First Amendment objections to using protected speech as evidentiary context in hostile-environment cases by explaining why universities’ failure to suppress related illicit, unprotected actions has violated Title VI. This Part rejects the notion that universities warrant distinct judicial solicitude in their regulation of unlawful conduct connected to student protest, and also concludes that the chilling effects doctrine does not apply to rulings that allow complainants to rely on hateful, violence-endorsing speech as contextual background in a hostile-environment case.

This Article concludes by emphasizing that courts and administrators must interpret Title VI’s “reasonable person” standard in light of the contemporary reality of antisemitic violence, on and off campus. Courts can demand that universities prohibit illicit behavior by anti-Israel campus constituents, such as trespass, vandalism, and threats, while still protecting the rights of protesters to express their opinions.

John Stuart Mill continues to stir trouble in the twenty-first century. Nowhere is Mill’s liberal legacy more fiercely contested than in academia, where scholarly opinion ranges from something approaching idolatry to icy disapproval. Heterodox Academy invokes Mill as a leading light, with Jonathan Haidt and Richard Reeves publishing an abridged version of On Liberty (entitled All Minus One) as a manifesto for the movement. Other scholars have tried to “update” Mill for a new era by adapting his notion of “harm” to include psychological and civic harm. Still others dismiss Mill as an engineer of and apologist for empire, another hypocritical nineteenth-century liberal who supported freedom for the metropole while advocating despotism for the colonial other.

How to reconcile the various versions of Mill—liberal apostle, Romantic utilitarian, faithful servant of the East Indian Company? The volume of Mill scholarship may hinder any effort to answer the question more than it helps: It is now so vast that it seems impossible to master without the help of artificial intelligence: Even if we restrict the topic to Mill and freedom of expression, JSTOR alone houses some 6,000 books and articles that mention Mill and free speech, enough to intimidate even the most energetic reader. The prospect of saying something new about Mill is perhaps yet more daunting.

To their credit, Drs. Christopher Barker and Fara Dabhoiwala have recently paved a fresh pathway through Mill’s oeuvre, attempting to explain why Mill did not extend his full-throated support for free speech to what he termed “barbarous” countries. Why, they ask, did Mill insist that colonial Indians, for instance, did not deserve the right (or privilege) of free speech? While copious research has been devoted to Mill’s arguments on free speech and to his opinions on empire, surprisingly little has been written on the intersection of the two.

The problem, however, is that the query on India, as posed, est une question mal posée, a complex question that assumes the conclusion and then seeks to explain it. Barker’s claim, for instance, that “Mill consistently supports East India Company (EIC) policy restricting publicity and debate in British India” is belied by a more sensitive examination of the evidence. Dabhoiwala’s forays down the documentary trail in his new book, What Is Free Speech?, are even more misleading. The real question is how two respected scholars could have limned such skewed portraits of Mill.

One of the greatest privileges of being a federal judge is the honor of presiding over a naturalization ceremony. I do it every year in May, to celebrate the anniversary of my own naturalization in May 1982.

I wasn’t born in the United States. I didn’t enter this world as an American. But I wake up every morning thanking God that I will leave this world as an American.

I like to say that I’m Taiwanese by birth, Texan by marriage. But most importantly, I’m American by choice.

If you’ve never attended a naturalization ceremony, there’s nothing more inspiring. People from all around the world come together in one room, for one purpose—to become Americans….

In a nation of over 300 million Americans, we’re bound to disagree on virtually every issue under the sun. And that’s okay. There’s nothing wrong with that….

We’ve all heard the maxim, “I disapprove of what you say, but I will defend to the death your right to say it.” … [But i]f you truly detest what someone says, why on Earth would you want to defend their right to say it—never mind defend it to the death?

Do you know anyone that altruistic? I don’t.

So if the statement makes any sense, it must be because it’s not altruistic at all. In fact, it’s quite self-interested. In fact, I would say that it’s self-interested in at least three distinct ways. With your indulgence and patience, I’ll spend a few moments examining each one.

First: On any given issue where people disagree, you may well be right—and those who disagree with you may well be wrong. But you could always be better.

Or put it another way: You may be right. But you should also want to win. And the way to maximize your chances of winning is to constantly expose yourself to competing viewpoints—and to do so as vigorously and frequently as possible….

[Second, i]n any particular disagreement, you may well be right. But you also could be wrong.

And you need to be okay with that. Because if your goal is not to soothe your ego, but to discover the truth, then you need to be prepared to be wrong at any given moment, on any given issue….

[Third,] regardless of whether you’re ultimately right or wrong on a particular issue, I would submit that respecting disagreement will make your life much better. It will also make the world a far more pleasant place to live….

An enraged King Henry II famously asked several of his barons, while the court met in Normandy at Christmas in 1170, “Will no one rid me of this turbulent priest?!” King Henry was referring, of course, to Thomas Becket, the incumbent Bishop of Canterbury and head of the Roman Catholic Church in England. Becket had steadfastly insisted on preserving the independence of the ecclesiastical courts and authority over bishopric appointments (much to King Henry’s dismay). Subsequently, four of these same barons went from Normandy, in France, to Canterbury, in England, and proceeded to assassinate Becket, on December 29, 1170, while he was conducting a prayer service in Canterbury Cathedral. The perpetrators (shockingly) escaped the king’s justice. Perhaps Becket received some small justice, however, when Pope Alexander III proclaimed him a martyr and saint on February 21, 1173.

Could Henry II’s musing, consistent with the requirements of the First Amendment, serve as a basis for criminal charges in the contemporary United States? On a first cut, one might answer this question negatively. After all, Henry II was in France; Becket was in England. His speech could not have produced an “imminent” threat to Becket’s safety. On the other hand, the barons who assassinated Becket did so only four days after Henry II pondered aloud his abstract desire to be rid of “this turbulent priest”—which, for the Middle Ages, constitutes a rather rapid response.

Even if Henry II might not be on the hook for criminal incitement charges, which under the Brandenburg test require both a clear call to unlawful activity and circumstances in which the speaker’s audience would likely act on the suggestion of unlawful action, a clever prosecutor in today’s United States could evade the Brandenburg rule entirely through the expedient of charging Henry II with solicitation or conspiracy (rather than incitement). Would the First Amendment preclude solicitation charges on these facts? Or, for that matter, conspiracy charges? Moreover, should changing the criminal charges fundamentally affect the governing First Amendment analysis?

Current free speech doctrine offers a less than clear answer—but most likely solicitation charges would stand up against a Free Speech Clause challenge. The controlling Supreme Court precedent on point, Williams, decided in 2008, seems straightforwardly to hold that proposing a criminal action enjoys absolutely no First Amendment protection. The Supreme Court doubled down on this approach in 2023, in Hansen, holding that “[s]peech intended to bring about a particular unlawful act has no social value; therefore it is unprotected [under the First Amendment].”

To be sure, neither of these cases expressly holds that speech proposing a crime, in contexts where the speech activity clearly constitutes expression about a public policy question, may be criminally punished. Moreover, the facts in both cases do not involve advocacy related to matters of public concern. Nevertheless, neither majority opinion bothers to distinguish speech with no relationship to democratic deliberation (for example, an effort to hire a hit man to commit a murder) from hyperbolic speech at a mass public rally (for example, an impassioned call to support illegal immigrants and immigration, and advocating taking direct actions to facilitate it, such as leaving jugs of water in the Arizona desert, because the speaker believes U.S. federal immigration policies are cruel and unjust).

Accordingly, whatever residual doubts might exist about charging Henry II with incitement would greatly diminish if a prosecutor were to charge solicitation or conspiracy instead. This outcome, of course, does not make any sense normatively or as a matter of public policy. First Amendment protection for speech that arguably calls for unlawful action should not depend on the vagaries of the indictment….

[T]his Essay proposes a different, more holistic approach to bringing the criminal law to bear on speech. Just as the Supreme Court’s effort to reconcile tort law with the imperatives of the Free Speech Clause did not end with New York Times Co. v. Sullivan and the tort of libel, free speech principles and values should inform criminal law enforcement too. A careful review of the relevant cases involving speech-crimes shows that, in all save one case (namely Dennis), the speech activity clearly caused, or had an obvious potential for causing, a serious social harm. The federal courts should apply the harm principle to any and all speech crimes—not just to the crimes of incitement and threats. Moreover, switching the crime charged from incitement to solicitation, for example, should not render the First Amendment wholly irrelevant any more than changing torts from libel to intentional infliction of emotional distress would foreclose a meaningful First Amendment analysis. And yet at worst this is unfortunately more or less how things seem to work today and, at best, the Justices have not taken sufficient care to disentangle speech integral to committing a crime from hyperbolic political advocacy.

Part II of this Essay discusses, in some detail, Justice Oliver Wendell Holmes’s iconic dissent in Gitlow v. New York and his argument that all ideas are potentially incitements to action as well. Because ideas and actions are inexorably intertwined, a legal test that turns entirely on a federal judge arbitrarily applying one label or another is really no test at all. Part III then considers the Supreme Court’s treatment of speech crimes and argues that, although the Justices have so far never clearly articulated the harm principle beyond Alvarez, this concept clearly and best explains the outcomes in all of the relevant cases save one (again, Dennis).

In Part IV, I draw upon Justice Anthony Kennedy’s important opinion in United States v. Alvarez to argue that speech can constitute a crime consistent with the Free Speech Clause of the First Amendment only when the government can prove, beyond a reasonable doubt, that it causes or would be highly likely to cause some kind of legally cognizable harm. Consistent with John Stuart Mill’s cogent arguments in On Liberty, and the plurality’s holding in Alvarez, the fact that speech offends or scandalizes many within the community, or might even have bad tendencies, must not be constitutionally sufficient to justify the imposition of criminal punishment. Part IV also explicates the harm principle and how the federal courts should deploy it consistently across the criminal law to limit the potential censorial effects of speech crimes. Finally, Part V provides a brief summary and conclusion.

For present purposes, Justice Holmes’ recognition that all ideas are also incitements constitutes his most important contribution in Gitlow to theorizing how the freedom of speech and punishment of crime should be reconciled. Because every idea is, potentially, an incitement, giving the government carte blanche to punish incitements would necessarily involve giving it a free hand to extirpate ideas that it dislikes from the marketplace of ideas. But the risk of government censorship is not limited to the crime of incitement; it exists too when the government charges a solicitation, a conspiracy, an attempt, a threat, or disorderly conduct. In any given case, the government should have the burden of showing that speech serving as the basis for a criminal charge (of any type) either caused or was highly likely to cause a serious social harm; if the government cannot meet this burden, the federal courts should hold the speech protected under the Free Speech Clause of the First Amendment.

As we celebrate the 100th anniversary of Gitlow v. New York, it is only natural that we focus on the landmark presumption of incorporation in the majority opinion and the dissenting opinion that would foreshadow today’s incitement standard. But perhaps we can spare a moment to consider the dedicated lawyers who represented Gitlow and his fellow radicals throughout the process. That their efforts, at least in the short term, were largely futile is certainly attributable to the historical moment and the prevailing interpretation of the First Amendment, not to any lack of competence or commitment on their part.

Indeed, the lawyers who represented Benjamin Gitlow were among the best of a small cadre of lawyers who represented leftist radicals of various persuasions in the early 20th Century. Some, like Clarence Darrow, would achieve great fame in their own time; others, most in fact, would labor in relative obscurity and are largely forgotten today. And while all were dedicated to their radical clients, their backgrounds, career paths, and personal motivations could be quite different. This article will profile two of Gitlow’s lawyers, Charles Recht and Walter Nelles. Both were involved from the earliest stages of Gitlow’s representation, although only Nelles played a significant role in the U.S. Supreme Court proceedings. Along the way, we will encounter Darrow, Walter Pollak, and others who made substantial contributions to the Gitlow litigation.

In examining the representation of Benjamin Gitlow, let us keep in mind the various interests that powered it. Fundamental, of course, is the interest that all criminal defense lawyers have in the acquittal of their clients. But then some lawyers and clients may have political or personal interests that color their litigation strategy and tactics. And some may have philosophical or ideological goals that transcend mere acquittal and seek to alter the legal landscape as much for the future as the present. All of these factors are present in the Gitlow representation.

On a busy Saturday afternoon in 1940, Walter Chaplinsky took to the streets of Rochester, New Hampshire, to distribute literature promoting the faith of Jehovah’s Witnesses and denouncing all other religions. At one point, Chaplinsky encountered the City Marshall, whom he called a “damned racketeer” and a “damned Fascist.” New Hampshire charged Chaplinsky under a criminal provision restricting “offensive” speech. In upholding Chaplinsky’s conviction a unanimous United States Supreme Court asserted that “[a]rgument is unnecessary to demonstrate that the appellations ‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

When teaching Chaplinsky to law students, I walk over to a nearby student and, in an appropriately loud and threatening voice, call the student a “damned racketeer.” To date, not once have my words triggered a breach of the peace. The obvious point is that context matters. Chaplinsky and I may have spoken the same words, but the meaning of those words is determined at least in part by the context in which they are uttered. This latter observation has generated volumes of work in legal theory, linguistics, and philosophy. I won’t revisit those debates here except to lay my own cards on the table: Meaning is somewhat but not entirely determined by context. To ignore context would mean a rigid fundamentalism; to defer to it entirely would mean an open-ended pragmatism without foundations. Neither of these options accurately describes the social world in which we live. But understanding context gives us a clearer sense of how to understand changed meaning not only among words but also among relationships, politics, and societies.

I think this is what is ultimately at stake in Oliver Wendell Holmes’s famous dictum written a half-generation before the Supreme Court so confidently classified Chaplinsky’s utterance as fighting words likely to breach the peace. That dictum, from Holmes’s dissent in Gitlow v. New York, asserts with no less confidence that “every idea is an incitement” and that “the only difference between the expression of an opinion and an incitement in the narrow sense is the speaker’s enthusiasm for the result.” I want to suggest Holmes is right to assert that every idea is an incitement, but his subsequent focus on the speaker’s enthusiasm neglects other important contextual factors. Chaplinsky‘s context included the generally understood meaning of the speaker’s insults at the time he uttered them and the physical environment in which he uttered them. Without this additional context—in other words, without moving beyond merely “the speaker’s enthusiasm for the result,” we cannot adequately assess the likely harm of a speaker’s words or whether the state should be permitted to limit those words based on that harm.

Most incitement cases also include an additional contextual factor: the audience that hears the words uttered and then chooses whether to act on those words. For this reason, most incitement cases involve not only speech but also assembly. But a speaker’s words do not directly correspond to a hearer’s actions. Hearers have their own agency, which means that they help determine the ultimate meaning, consequences, and effects of the speaker’s words. This is one reason that groups—assemblies—often pose a greater risk of uncertainty and instability than individuals. Having more people in the mix complicates both communication and action.

The relationship between speaker and hearer is further confounded by the variable of time. Chaplinsky’s words were limited to the audience immediately in front of him. But many incitements unfold over time. Think, for example, of a sustained protest, a social movement, or a revolution. In these cases, we will not always know what words will come to mean or what their eventual effect will be—we will not know how listeners separated from the speaker over time might interpret and act on those words.

In the sections that follow, I explore the preceding claims and suggest why Holmes’s aphorisms in his Gitlow dissent insufficiently account for the contingencies of listeners, and expose vulnerable speakers and organizers to liability for downstream and unintended consequences of their words. I illustrate with two contemporary applications. The first is a misguided doctrinal development out of the Fifth Circuit: the concept of “negligent protest.” In Mckesson v. Doe, the Fifth Circuit suggested that a protest organizer could be personally civilly liable for the downstream actions of another protester. Following a remand and the Supreme Court’s intervening decision in Counterman v. Colorado, the district court granted summary judgment to the protest organizer, noting that he “cannot be held liable in negligence for actions taken while exercising his First Amendment freedoms.” While Counterman and the district court’s opinion limit the likely scope of negligent protest, the Fifth Circuit’s novel expansion of liability remains on the books.

The second application focuses on the words of Donald Trump and the ensuing actions of his supporters rioting at the United States Capitol on January 6, 2021. The Capitol riot illustrates the magnitude of the danger of speech uttered in assembly—in this case, the violent assault on a core function of our democratic government. But even here, Trump’s “enthusiasm for the result” of his words is far from clear, and it may well be that the same civil liberties that ought to shield the protest organizer in Mckesson should also insulate Trump from the consequences of his words on January 6th.

Open courts are a cornerstone of democratic government, ensuring not only that justice is done but that it is seen to be done. As the Supreme Court recognized in Press-Enterprise Co. v. Superior Court (”Press-Enterprise I“), “[p]eople in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.” While public access to court proceedings is indispensable to preserving this openness, access to court records is equally critical. In practice, much of the business of the courts—particularly in the federal system—takes place through written filings: motions, briefs, evidentiary submissions, and judicial opinions. Without access to these records, the public cannot understand and scrutinize the judiciary’s work.

Despite the longstanding presumption that court records are open for public inspection, parties frequently attempt to “seal” documents in order to hide them from public view. Empirical research reveals that the sealing of court records is extensive and increasing, particularly in federal courts and states with broad sealing statutes. Indeed, the sealing of court records is often routine, with minimal opposition or judicial scrutiny. A recent examination of sealing in federal district courts found that motions to seal were among the most common court filings, with over thirty thousand cases containing such motions in the past five years. One federal judge even compared the increasing secrecy in the courts to “kudzu,” a nearly uncontrollable creeping vine that “blocks access to sunlight, slowly strangling fields and forests in its wake.”

The harms that come from this secrecy are far from abstract. In a series of investigative reports titled “Hidden Injustice,” Reuters revealed how secrecy in U.S. courts—particularly the sealing of court records—shields corporate misconduct and conceals information vital to public safety. Their investigation discovered that federal judges had sealed evidence related to harmful products in about half of the 115 biggest product liability cases over the past twenty years and that in 85% of those instances judges provided no explanation for keeping the information from the public. Looking specifically at opioid litigation, Reuters determined that judges allowed litigants to file under seal evidence that could have alerted regulators, doctors, and the public to the dangers of prescription opioids; this concealment, they concluded, played a significant role in prolonging and deepening the opioid crisis.

Under current case law, as discussed in more detail below, the sealing of court records should be rare and permissible only under limited circumstances. In practice, however, the opposite is true: Sealing has become disturbingly routine in the federal courts, often carried out with little meaningful judicial oversight.

Critics of court secrecy point to the absence of clear, uniform rules on sealing as a key factor behind its widespread use in the federal courts. The Federal Rules of Civil Procedure and Criminal Procedure mandate the protection of certain sensitive information, namely Social Security numbers, tax identification numbers, dates of birth, financial account numbers, names of minors, and home addresses. Beyond this specific information, however, the federal rules offer little guidance on sealing to litigants and judges. As a result, when parties seek to seal records containing personal or other confidential information, the requirements and procedures are largely governed by the district court’s local rules.

This project is the first to comprehensively examine whether federal district courts provide clear and consistent local rules for sealing court records in civil and criminal cases. It also evaluates whether these local rules align with established Supreme Court and circuit court precedent concerning the public’s right of access to judicial records.

The analysis of more than seven hundred local rules across all ninety-four federal districts reveals alarming inconsistencies in sealing practices nationwide. Nearly half of all districts lack general sealing rules, many fail to reference the controlling legal standard, and basic procedural safeguards—such as public notice, consideration of alternatives to sealing, and case-specific identification of harms—are frequently absent. Overall, only eleven districts (12%) provide a specific standard for sealing that incorporates their circuit’s requirements for civil cases and a mere six districts (6%) do so for criminal cases. These deficiencies have created a patchwork of inconsistent, often-toothless rules that enable secrecy to spread largely unchecked.

Some might contend that local rules on sealing are unnecessary because the federal courts of appeals already provide sufficient guidance and district courts can be expected to follow those precedents. Empirical studies, however, do not support that assumption: In practice, most judges do not rigorously apply circuit law when evaluating motions to seal, often granting such requests with minimal scrutiny. Furthermore, even if district courts were meticulous in applying governing case law, clear and comprehensive rules would still offer significant benefits. Clear rules on sealing further consistency, transparency, and efficiency by establishing uniform procedures, reducing litigation costs, protecting the public’s interest in open records, and reinforcing confidence in the judiciary through predictable and principled decision-making.

This Article seeks to accomplish three principal objectives. First, it demonstrates that the lack of clear guidance on sealing is not confined to a few outlier districts but is a systemic issue across the federal judiciary. While some districts have adopted rules that provide meaningful direction on sealing, such examples are rare. In fact, forty-one of the ninety-four federal districts—approximately 44%—do not have a general sealing provision in either their civil or criminal rules laying out the procedures for sealing court records. The absence of such rules leaves litigants and judges without a framework for evaluating when and how court records may be sealed, increasing the risk of inconsistent and unprincipled sealing.

Second, this Article offers recommendations for improving the clarity and consistency of sealing rules in the federal courts. The goal is not to impose a uniform substantive standard—such as the First Amendment right of access—on all districts, though I have argued elsewhere that all court records should be subject to the more stringent First Amendment right. Rather, this project assesses each district’s rules in light of the access standard adopted by its respective circuit. Even in circuits that apply only the more-deferential common law standard, the public’s right of access would be better protected through clear, well-defined rules that ensure transparency and accountability in court decisions regarding sealing.

Third, it underscores the judiciary’s responsibility to safeguard the public’s right of access. By allowing the sealing of court records to become a routine, often-unexamined practice, many federal judges have abdicated this responsibility. This court-approved secrecy has, among other consequences, weakened the public trust that the judicial system relies upon. This is a critical time for the federal courts to address this problem. Public confidence in the courts—and in government more broadly—is declining. Strengthening the rules and practices that govern the sealing of court records is essential not only to restoring the legitimacy of the courts but also to reaffirming the judiciary’s role as a guardian of open government.

This Article proceeds in three parts. Part I describes the benefits of public access to court records. It then surveys the principal standards courts have adopted for evaluating requests to seal court records, including the First Amendment, common law, and “good cause” standards. Part II analyzes how district courts implement these sealing standards through their local rules. As Part II shows, local rules on sealing vary widely—not only from one district to another, but even among districts within the same state—creating a patchwork of standards and practices for sealing.

Part III concludes by offering suggestions for how to create clearer and more consistent rules on sealing. It also suggests practical measures to reduce the administrative burdens on courts. Many of the current rules governing sealing are not only confusing but also unwieldy, creating unnecessary work for judges and litigants alike.

In a previous book, the author sought to establish that the likely original meaning of the Fourteenth Amendment’s Privileges or Immunities Clause was that it guaranteed equality in fundamental rights under state law. The central provisions of the first section of the Amendment—due process of law, protection of the laws, and the privileges and immunities of citizenship—had long-established antebellum legal meanings. Due process of law primarily meant there had to be established law before one could be deprived of life, liberty, or property, and any violation of that established law had to be adjudicated according to known and established procedures. The protection of the laws was the other side of the coin: It was the legal protection the government had to extend against private invasions of private rights, principally judicial remedies and physical protection from violence. The protection of the laws was the heart of the social compact: Men exit the state of nature and give up some of their executive power and agree to obey the sovereign—they agree to give allegiance—in exchange for the sovereign’s protection against private violence and private invasions of rights.

The antebellum legal background is crucially important for understanding the original meaning of the Amendment’s privileges or immunities provision because it is that provision that therefore must accommodate the central goal of the Amendment’s drafters of constitutionalizing the Civil Rights Act of 1866. That act guaranteed equality in civil rights under state law. Although many Republicans believed the act was justified under the Thirteenth Amendment’s enforcement clause, many, including John Bingham, the principal author of the Fourteenth Amendment’s first section, believed the Act to be unconstitutional. Moreover, it was necessary to enshrine the civil rights principle in the Constitution itself, lest the Democrats take over and repeal that legislation; Congress needed, in the words of Representative and future President James Garfield, “to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution.”

Yet, if the due process and protection of the laws clauses in the Amendment had their historical legal meanings, they would not accomplish that central objective. Due process does not guarantee equal rights, only that whatever rights one has will not be taken away without established law and known procedures. Nor does equal protection of the law guarantee equal rights, but rather guarantees only that whatever rights one possesses will be equally protected against, say, Ku Klux Klan violence. That leaves only the privileges or immunities provision, whose language does the necessary work. The Reconstruction generation understood that civil rights defined and regulated under state law, including contract and property rights, were fundamental rights that all free governments had to secure. They were, in other words, the “privileges and immunities of citizens of the United States,” shared by all citizens, though states may have regulated the rights differently. A state would “abridge” those rights by giving a lesser set of rights to a disfavored class.

To be sure, the language can also support the conventional, incorporation reading of the clause. The “privileges” and “immunities” of “citizens of the United States” at a minimum include those rights so fundamental that they were constitutionally enumerated, which a state can “abridge” just as Congress can “abridg[e]” the freedom of speech or of the press. Although the book did not tackle the affirmative evidence for incorporation of the Bill of Rights against the states, two other works did so.

One paper, Reversing Incorporation, sought to demonstrate that the antislavery and Republican concern, both before and after the adoption of the Fourteenth Amendment, was equality in civil rights however defined and regulated under state law. Although fundamental rights were routinely mentioned, abolitionists and Republicans relied on state constitutions, on the rights that freedom would bring under state law, and on Congress’s powers to insist on republican governments during readmission. There is very little evidence from the period that anyone understood the Fourteenth Amendment to guarantee a fundamental floor of rights.

A still more recent work, The Antislavery Reading of Article IV, addressed the claim that antislavery constitutionalists had an unorthodox reading of Article IV’s Privileges and Immunities Clause, by which that clause effectively nationalized the rights of citizens. The clause was conventionally understood to require a state to treat citizens of other states on equal terms with its own citizens. This prior work demonstrated that some antislavery theorists did hold unorthodox views of Article IV. The best understanding of the unorthodox view, however, was that it would have merely extended the antidiscrimination work of the clause to discrimination among a state’s own citizens.

Representative Lawrence of Ohio made this equality reading of Article IV explicit in connection with the civil rights bill. Lawrence asked whether the nation was powerless to intervene when a state denies rights to “whole classes of native or naturalized citizens.” He argued that Article IV, Section 2 authorized Congress to enforce “the equal civil rights which it recognizes or by implication affirms to exist among citizens of the same State.”

The aim of this essay, prepared for the symposium marking the 100th anniversary of Gitlow v. New York, the case famously presuming the freedom of speech to be applicable to the states via the Fourteenth Amendment, is to demonstrate that many of the relevant historical debates involved the freedom of speech. Yet these debates do not suggest that the historical actors thought the First Amendment right was “incorporated” against the states. Quite the opposite. The actors presumed that the freedom of speech was a fundamental right guaranteed in many different ways—by state constitutions, by Article IV, by the Republican Guarantee Clause, and, yes, by the First Amendment at least with respect to the federal government.

After the adoption of the Fourteenth Amendment, that right was, also, guaranteed in some way by the new Privileges or Immunities Clause. The question is in what sense. One possibility, as the above suggests, is that the clause requires nondiscrimination among a state’s own citizens with respect to that right. Consider how one treatise writer in 1871 explained that Article IV guaranteed the freedom of speech in a similar manner by prohibiting discrimination in the provision of this right against out-of-state citizens:

[The clause’s] intention is to secure the like privileges and immunities to all those American citizens …. What like privileges and immunities? Those specified and enumerated in the federal constitution; the enjoyment of life, liberty, property, and the pursuit to happiness, no matter where located or domiciled…. The states without [this clause], by their local legislation, might, and perhaps would, impose different restrictions on the residents of each other in their necessary trade and intercourse, or upon American citizens migrating from one state to another, with the view of becoming residents, militating against those unalienable rights ….

It is possible, of course, that the author believed Article IV incorporated the Bill of Rights against the states, contrary to Barron v. Baltimore. Yet it seems evident enough that the author supposed those rights would be protected in the same way that ordinary rights to life, liberty, and property would be. He does not appear to have been suggesting that such rights were identically defined and secured in all the states. His reading appears to have been conventional: however the state defines and secures its citizens’ fundamental rights—to contract, property, bear arms, freedom of speech, and so on—it must guarantee those same rights to out-of-state citizens.

Part II of this essay, relying on the prior work identified above, canvasses the relevant evidence relating to the freedom of speech. It demonstrates that the historical players generally assumed that the freedom of speech was protected in a variety of ways, but none compels the conclusion that any of them thought the freedom of speech as defined in the First Amendment was “incorporated” against the states. They suggest an equality reading: whatever speech regulations existed must extend equally to all citizens without arbitrary discrimination. At most, they suggest that the framers of the Fourteenth Amendment expected the Privileges or Immunities Clause to secure only those rights that all free governments had to. Whether, on either reading, a state would be prohibited from banning the sale of violent video games to minors, from regulating student speech, or from punishing flag burning, viewing of animal crush videos, protesting at a dead soldier’s funeral, or stealing valor, may well be doubted.