In 1943, in what would become one of the most famous opinions in the First Amendment canon, Justice Robert H. Jackson described the difficult task that courts faced when asked to apply the federal constitution’s rights guarantees to a world radically transformed from the one the Framers had encountered. The profound economic, social and political changes of the intervening hundred and fifty years, Jackson wrote in West Virginia State Board of Education v. Barnette, meant that courts had to make legal principles developed at a time when the dominant view was that individual “liberty was attainable through mere absence of governmental restraints” make sense in a society “in which the laissez-faire … principle of noninterference ha[d] withered,” and “social advancements are increasingly sought… through expanded and strengthened governmental controls.” Changed conditions meant, in other words, that courts had to interpret the freedoms guaranteed by the first ten amendments in a manner that was consistent with the operation of the modern regulatory state then just coming into being. This was a challenging task; challenging enough, Jackson noted, “to disturb [the] self-confidence” (even the self-confidence of a Supreme Court justice, evidently). But it was not something that he believed could be avoided. The rest of the justices on the Supreme Court apparently agreed.

Certainly, in the ensuing decades, the Court worked hard to ensure that the strong protections the Speech Clause provided to the “sphere of intellect and spirit” which Barnette declared it the purpose of “the First Amendment… to reserve from all official control” did not unduly interfere with the “expanded and strengthened governmental controls” that are the hallmark of the modern regulatory state. The primary means by which it did so was by reading a strong private/public distinction into First Amendment law. More specifically, the Court interpreted the strength of the protections the First Amendment provides to individuals’ expressive and associational choices to vary greatly depending on whether those individuals or groups were speaking or associating in their private capacity, and were using private resources to speak and associate, or were instead speaking on behalf of the government or using governmental resources to speak and associate. In the first set of cases, the Court interpreted the First Amendment to assiduously protect the expressive autonomy of the speakers and groups. In the second set of cases, however, the Court interpreted the First Amendment to provide much weaker protection against speech-repressive state actions—and in some cases, no protection at all.

By distinguishing in this way between these two realms of constitutional action—the realm of private freedom, and the realm of public power—the Court attempted to reconcile its commitment to a largely negative and in that respect, enduringly laissez faire, conception of the First Amendment with the effective operation of the welfare state. It attempted to create a body of free speech law that was capable of safeguarding the independence of the marketplace of ideas from governmental control and manipulation but not so expansive in its reach that it undermined the ability of that same government to efficiently manage its own institutions and promote the ideological projects that it was elected to bring about.

For a while, it appeared that the Court had pulled off this difficult task reasonably well. Although there were many scholars, including myself, who criticized where and how the Court drew the line between the public and private realms in specific cases, there was general acceptance of the various doctrines (the public forum doctrine, the government speech doctrine, the state action doctrine) that insulated vast swathes of governmental speech regulation from ordinary First Amendment scrutiny in the name of governmental efficiency and majoritarian democracy. This may be because the system appeared to work successfully. For much of the twentieth and early twenty-first centuries, the United States seemed to enjoy the best of both worlds: a powerful and vigorous state apparatus and a robust and dynamic private media system that enjoyed what appeared to be strong constitutional protection against government interference. (Perhaps Justice Jackson’s self-confidence need not have been disturbed after all!)

Time upsets many fighting faiths, however. And, just as the Great Depression and New Deal led the Court to revise its understanding of the meaning of the Bill of Rights, the aggressive use by the Trump administration of its government speech and spending powers calls into question whether current First Amendment doctrine does in fact strike the right balance between public and private power. If in 1943, the problem created by the laissez faire conception of the Bill of Rights was an unduly constrained government, what the Trump administration’s actions strongly suggest is that existing First Amendment doctrine grants government actors too much power over the private marketplace of ideas. Specifically, it allows government officials to use their control over public institutions and resources to hollow out the formal protections provided by the First Amendment to private speakers and organizations.

Consider, as one example, the Trump administration’s war against universities. Universities—especially private ones—enjoy very strong formal First Amendment protection against government interference with their expressive and associational choices. It is well-established that the First Amendment requires government actors to defer to the “legitimate academic decision making” of university decisionmakers wherever possible, and prohibits state actions that “cast a pall of orthodoxy over the classroom.” More generally, private institutions like universities enjoy the right under the First Amendment, like all other private groups, to communicate only the expressive messages they desire.

Nevertheless, the Trump administration has managed to cow many university administrators into complying with its demands that they (among other things) end pro-diversity, equity and inclusion (DEI) programming on campus; impose more severe sanctions on students who engage in disruptive protests; and change how they teach about controversial topics, like the Israel-Gaza war. Even in the absence of specific enforcement actions, universities across the country have complied with these demands by removing DEI courses from graduation requirements, cancelling public events and scrubbing websites, and changing how they regulate student expression and how they teach about the Middle East.

Universities have taken these speech and association-restrictive steps even though they are not legally required to do so—and even though in many cases their right to not make those changes is constitutionally protected. They have done so because they reasonably fear that if they do not, the Trump administration will cut off their access to federal funding, just as it has done to Harvard, Columbia, and other universities deemed insufficiently obedient to its commands. What this means is that, as a practical matter, Trump administration officials have been able to exploit the broad power that existing First Amendment law gives the political branches to “allocate funds for public purposes” and “to impose limits on the use of such funds” to intimidate private universities into at least partial compliance with their campaign of ideological purification, thereby limiting the range of facts, ideas, and opinions that make their way into the private marketplace of ideas.

That the Trump administration has been able to transmute its power over the public realm, specifically the public fisc, into power over the private sphere in this way is not an inevitable consequence of the Court’s recognition, in its government speech cases, that the government possesses the right under the First Amendment to make ideologically-freighted and often highly discretionary decisions about what expressive projects it does and does not wish to fund. For example, were universities less dependent on federal funds for their revenues—more dependent, say, on private donations, or student tuition, or some other funding source—the Trump administration might be less effective in its bullying than it has been so far.

But that the administration has this power is a not-at-all surprising result of the very same economic, social, and political changes that Justice Jackson described in Barnette. The reconceptualization of the government’s role in society that produced the New Deal—and that led to the revolution in constitutional understandings that Jackson was describing—was also what motivated the federal government to invest, increasingly heavily, in academic scientific research and in American higher education more broadly. Indeed, President Roosevelt explicitly justified the turn towards federal investment in university research, which began just a few years after Barnette was handed down, as a transformation and extension into peacetime of the wartime New Deal project. In other words, the same forces that led the Court to grant the government broad discretion to shepherd public resources as it believed appropriate, and to control what could be said in government institutions, also created the economic and political circumstances under which that power could be abused.

What this means is that the significant weaknesses with the American system of free expression that the Trump administration’s actions reveal cannot be blamed entirely, or even perhaps primarily, on the administration itself—although there is no doubt that the administration has exploited them as aggressively as it can. Instead, they are a product of courts’ tendency in First Amendment cases to assume that the boundary between the public and private realms is clearer and less permeable than it is, and perhaps can ever be, in a political system in which the government plays such an important role supporting participants in the nominally private marketplace of ideas, and to therefore adopt an overly deferential attitude toward government actors when they exercise their public powers.

This is not to say that contemporary First Amendment law imposes no constraints on the government when it seeks to use its spending, or government authority, or other public powers to skew the marketplace of ideas in one direction or another. To the contrary: over the years, in response to similar episodes of repression, the Court has developed a number of doctrines that work to prevent just that kind of abuse. It has developed, for example, the unconstitutional conditions doctrine which, as other participants in this series have explained, prohibits government actors from conditioning the receipt of government benefits on the waiver of First Amendment rights that are exercised independently of those government benefits. Hence the government may not require that university researchers stop speaking about global warming, or for that matter, DEI, if they wish to continue to receive federal funding for their cancer research. In addition, as Evelyn Douek has explained, the First Amendment anti-jawboning rule prohibits members of the Trump administration from using the threat of funding cuts to intentionally coerce private speakers and organizations into suppressing their own speech or the speech of others. In this respect, also, the First Amendment imposes limits on the Trump administration’s ability to use its power of the purse to bully private actors into ideological conformity.

Nevertheless, the constraints these doctrines impose on the government’s ability to use its spending powers to manipulate the marketplace of ideas, are, although undoubtedly important, also limited in significant respects by the rigid public/private distinction they work around. For example, the unconstitutional conditions doctrine only prohibits conditions on speech that is not funded by the government and that operates, as such, in the private realm. The doctrine does not impose any meaningful constraints on what the government can require of individuals when they use its money to speak and are therefore considered to operate in the public realm. This means that the government can impose very significant, and in some cases viewpoint-discriminatory, restrictions on what university researchers, or government contractors, or private think tanks can use government money to research and to discuss. And this is true even if that research and that expression is not intended for a government audience but is instead intended to address private citizens and other private researchers.

Similarly, because the anti-jawboning rule applies only to intentional efforts by government actors to coerce the suppression of speech, it does not prohibit government actions that merely have the effect of causing private institutions to self-censor or to censor others. Hence the rule provides a powerful safeguard against blatant attempts by government actors to use the threat of funding cuts to bully private institutions into submission—like the threats the administration has wielded against Harvard and Columbia. But it will be much more difficult for universities to challenge actions—say, for example, the wholesale slashing of the budget of the federal agencies that oversee academic research, or a shift in what kinds of research they award grants to in the first place—that have a similarly chilling effect on the willingness of academic institutions to defy the administration’s ideological demands but are less obviously the product of an intentionally coercive intent. This is particularly true given the broad discretionary power that the government possesses under contemporary First Amendment doctrine to fund or not fund academic research, or any other kind of expression, as it chooses.

The result is that, notwithstanding the constraints that these doctrines impose on the government’s exercise of its spending and other public powers, in practice, government actors retain extensive power to interfere with the marketplace of ideas by chilling speech they disfavor and by prompting private institutions to do so for them. In other words, current First Amendment law is not doing a very good of protecting what the Court has insisted is its central purpose: namely, to “remove governmental restraints from the arena of public discussion.” What this means is that we may be facing a significant enough mismatch between the world that shaped modern First Amendment doctrine and the world as it is today to require the same kind of creative rethinking that Justice Jackson’s opinion in Barnette both represented and called for.

This creative rethinking does not require that courts completely ignore the distinction between government and private actors in First Amendment cases. The realists may have been correct when they argued that the distinction between the public and private spheres is in some senses a legal fiction, but it is a useful one. As the limited public forum and government speech cases make clear, there are important reasons (institutional efficiency and democratic legitimacy, for example) why we might want to give government officials more power to regulate the speech of government employees and speech in government institutions than they possess to regulate private institutions and speakers like you and me.

There are nonetheless many ways in which the rigid lines that the contemporary doctrine draws between the public and the private realms could be softened, to better account for the vast power the federal government possesses to shape the marketplace of ideas through its funding and access decisions. Courts could, for example, interpret the First Amendment to impose more constraints on the government when it funds expressive activity that addresses the public realm than the existing limited public forum and government speech rules require. Alternatively, courts could impose procedural constraints on the government’s ability to defund expressive activity on patently political grounds akin to those the Court has in the past imposed on government actors who attempt to ban books from school libraries. Or they could limit the reach of the government speech doctrine to exclude bureaucrats who work in federal knowledge institutions—like the National Institute of Health or the National Oceanic and Atmospheric Administration—that exist in order to create and disseminate accurate information to the public rather than to advance the political agenda of the existing administration, just as courts have, in recent years, limited the government speech doctrine to exclude faculty who work in the knowledge institutions that are public universities. In these and other ways courts could interpret the First Amendment to make it more difficult for the government to exploit the public/private divide as a tool of censorship.

Whatever the path chosen, what the past few months make clear is that it is well past time to begin fleshing out the doctrinal arguments that would enable the First Amendment to more effectively do its job of safeguarding the private sphere of public speech and association from the government’s public powers than it is doing now. Trump may be a historically unique and shameless aggrandizer of power. But he has only revealed cracks that already existed in the First Amendment edifice. Now that he has demonstrated how powerful the power of the purse can be, he is unlikely to be the last government actor to wield it so aggressively. There is no avoiding change of this kind, as Justice Jackson recognized; only adapting to it.

Whether the justices on the Supreme Court will recognize as much is an open question. The current Court has signaled much less openness to the task that Jackson set before it: the task of reimagining constitutional rights to make them meaningful in new social conditions. But preserving the core functions of the First Amendment in the post-New Deal world of expansive federal power may require no less.