One of the more intractable challenges in rebuilding and sustaining a robust culture of free expression in the United States is our overreliance on courts as enforcers. At least three serious limitations on judicial enforcement of free speech rights have become apparent in recent years, though the list is not exhaustive.

First, courts in the United States rely on motivated litigants to protect their rights. Our courts do not decide abstract questions of constitutional law. They make constitutional decisions only in the context of a genuine “case or controversy,” and they rely on the parties to marshal the strongest arguments in their own favor and to introduce evidence consistent with those arguments. Many of the most serious challenges to freedom of expression in recent months, however, have most directly injured institutions that were too heavily leveraged to the government for their principals to be willing to litigate.

Thus, many research universities whose scientific and medical communities depend heavily on federal government funding have refused to litigate the Trump administration’s coercive efforts to influence their academic missions despite the manifest illegality of the demands made of them. Media organizations owned by corporations over whom the administration wielded regulatory leverage, such as CBS and ABC, have opportunistically settled Trump’s vexatious defamation lawsuits, and others have abandoned journalistic independence altogether. Some law firms have agreed to offer free legal services to the Trump administration rather than go to court to resist the administration’s illegal jawboning, which took the form of threats to security clearances and government contracts.

In each of these examples, the Trump administration threatened institutions—universities, the press, and law firms—that exist in part as public goods, whose benefits to civil society, especially in the face of authoritarian threats, extend well beyond their own profitability. And in each of these examples, key representatives of these institutions chose to cut a deal rather than to publicly defend their rights in court. Because of the structure of constitutional litigation, their refusal to litigate deprived the public of judicial intervention into significant threats to free expression.

A second limitation of courts in acting as the primary defenders of free expression values is that, as presently structured, they are ill-suited to protect those values not readily formulated as individual rights against the state. Many of the most dangerous modern threats to freedom of expression result less from state suppression of information than from interested, well-resourced, or malicious actors saturating or manipulating the media environment to capture audience attention and dilute the messages of others. Combating these threats requires engagement with private intermediaries and regulation of a social good. An adjudicator focused solely on the rights of individuals, as is standard constitutional practice in the United States, may not only fail to remedy serious injuries to the overall speech environment, but can make the problem worse by immunizing individual antisocial behavior from regulation.

Third, and relatedly, the tendency of U.S. courts is to treat First Amendment rights (and others) as quasi-absolute. This austere posture towards balancing makes it difficult for courts to responsibly handle the many matters in which free expression values sit on both sides of the litigation, as for example in campaign finance cases or in cases involving public universities’ curation of on-campus speech. Courts are far more comfortable assigning either a right to a speaker or a power to a speech regulator than they are assigning such rights and powers partially, or subject to a qualitative assessment of reasonableness.

There may be ways to mitigate some of these limitations on the power of courts as enforcers of free expression values. One might consider, for example, versions of anti-SLAPP laws, fee-shifting arrangements, or other interventions that disincentivize government actors from pursuing frivolous lawsuits or targeting speech, and that make litigation more worthwhile for targets of government jawboning. But the regulatory leverage a motivated executive can exert, from antitrust or Federal Communications Commission oversight, to National Institutes of Health funding or government contracting, to immigration enforcement or visa denials, can be so vast and ongoing that tinkering on the margins of litigation carrots and sticks is unlikely to move the chains.

The question then becomes whether there are ways to create or buttress institutions other than courts that can more reliably support free expression values. Among the more intriguing constellations of ideas to have emerged in the initial months of Trump 2.0 is the creation of so-called “shadow” government institutions. The model is shadow cabinets in Westminster parliamentary systems, where the party in opposition gives a portfolio to its own ersatz ministers as a means of holding the government to account and demonstrating what the alternative looks like in reasonable detail.

Some observers have suggested that the Democratic Party similarly organize itself, and in April 2025 the DNC announced an initiative that it branded as a “People’s Cabinet.” The liberal journalist and pundit Josh Marshall has floated a DOJ-in-Exile that would offer specific, concrete theories of criminal liability, based on publicly available information, for various Trump Administration actions. Fordham Law Professor Julie Suk's forthcoming book proposes a “shadow” court, created by Congress, empowered to issue decisions that would be non-binding but that would not be constrained by the existing Supreme Court's jurisdictional and remedial constraints. 

The basic conceit behind these alternative institutions is to create mechanisms outside the formalisms of litigation wherein public values can find expression and be solemnized without the distortions introduced by those seeking to perpetuate their own power, enrich themselves, or advance the agenda of a specific interest group. Doing so not only may create a measure of political accountability for bad actors in the existing system but may also provide a blueprint for actions existing institutions can pursue when the current administration is out of power.

Many of the Trump administration’s actions in the free expression domain, from its targeting of immigrants for their political expression, to its politically motivated coercion of universities and media entities, to its chronic violations of federal civil service laws, lend themselves to assessment by a shadow institution. One possibility would be a “shadow” entity modeled on the Justice Department’s Office of Legal Counsel (OLC), where I worked during the last two years of the Biden Administration. OLC provides generally binding advice to executive branch agencies and the White House on potential executive branch actions. Unlike, for example, the DOJ’s Civil Division, OLC is guided in its legal assessments not by the best litigation defense but rather by its best view of the law.

OLC’s leadership is politically appointed, and it has come in for significant criticism over the years for its aggressive interpretations of executive power. There is every reason to believe the current OLC has either not pushed back on the administration’s unlawful actions or has been sidelined. Can we imagine, then, an office of lawyers, perhaps appointed by a bipartisan entity, that is not housed within the Department of Justice and that offers its written, considered, best view of the law to the public and/or to Congress—say, to the House and Senate majority and minority leadership and to the chairs and ranking members of the Judiciary Committees?

In the current political environment, such an entity likely would need to be privately organized and funded, and it would have access only to publicly available information, but its structure could provide a model for a future federal agency. Congress could, by statute, impose certain duties of legal consultation on the Department of Justice or other agencies for certain significant executive branch decisions and impose a qualified duty of public or congressional disclosure on the “shadow” entity itself.

The details require much additional thinking, but structuring and staffing shadow entities seems a promising avenue for giving a jolt to our constitutional imaginary. When existing institutions become sclerotic or irresponsible, our only option may be to look for glimmers of light in their shadows.