Fifteen months of the second Trump administration have made shockingly clear how vulnerable the American system of free expression is to government co-optation. When faced with administration demands that they suppress disfavored speech or change how they themselves speak, many of the institutions that are supposed to enable the “uninhibited, robust, and wide-open” public debate that a healthy democracy requires have chosen to comply rather than risk losing federal benefits of various kinds. This compliance has not always been total and it has often been strategic. The result nevertheless has been to aid and abet the administration’s efforts to limit the diversity of views that can be safely expressed in public and thereby shape, and constrain, the horizon of political possibility.

The spectacle of universities, law firms, media companies—even as venerable an institution as the Smithsonian—bending to the administration’s speech-suppressive pressure obviously should be of real concern to all who care about democracy in the United States, even if it is not permanent. It may be that, as the Trump administration becomes less popular or overplays its hand, civil society organizations show more willingness to resist the government’s mandates. The free speech crisis we are currently experiencing may to some degree solve itself. But it may not. And regardless, the past fifteen months have illuminated very serious structural vulnerabilities in the U.S. system that lie waiting to be exploited by other, perhaps cannier, government actors. We thus need to understand why the system proved so susceptible if we are to have any hope of making it less susceptible going forward.

The evidence of recent history suggests, perhaps counterintuitively, that the primary locus of blame does not lie with the bodies of substantive law—and in particular, the First Amendment—that are nominally charged with constraining the executive when it comes to the regulation of speech. This is not to say that First Amendment law could not do more to protect the independence of the democratic public sphere than it does at present. As I have detailed at length elsewhere, government speech doctrine has provided the administration a powerful shield against First Amendment challenges to its efforts to remake speech and association in the federal bureaucracy. Meanwhile, the deregulatory impact of First Amendment campaign finance law has clearly limited the administration’s vulnerability to political, as opposed to legal, checks on the president’s power.

But it is also true that, over the past sixty years, and particularly in the wake of the Second Red Scare, courts have interpreted the First Amendment to strongly protect private actors against many of the speech-suppressive tactics (jawboning, retaliation, the conditioning of federal benefits) that the administration has tended to use. And yet, institutions targeted by the Trump administration have chosen not to invoke these legal protections to defend their own expressive freedom and the freedom of those they employ, educate, and host. That pattern, which has repeated itself across institutional contexts, points toward a conclusion that is as important as it is uncomfortable: the vulnerability the administration has exposed is not primarily a failure of doctrine but a failure of institutional incentives.

What this means for those who wish to address the structural weaknesses the past fifteen months have laid bare is that the solutions cannot lie simply in reforms to First Amendment doctrine. The project of free speech reconstruction also needs to pay attention to the institutional, legal, and economic factors that led so many institutions—and more specifically, institutional decision-makers—to believe it rational, desirable even perhaps, to give in rather than to use the tools at their disposal to fight. Put differently, if we have learned anything from the second Trump administration, it is that the health of the American system of free expression depends not only on what restrictions the law imposes on government power but on what private institutional actors are incentivized to do when the government exercise its power, in either legal or extralegal ways, and on whose incentives matter when it comes to institutional decision-making.

One of the more instructive patterns to emerge from the past fifteenth months is the divergence in the willingness to fight between senior institutional decisionmakers and those in the same institution who were more directly involved in its everyday speech hosting and disseminating activities. In law firm after law firm, university after university, media organization after media organization, the people who decided whether the institution should comply or resist were, with notable exceptions, not the people whose professional lives were most immediately organized around the speaking and listening the institution fostered. The attorneys who litigated for disfavored causes, the faculty who pursued heterodox research, the journalists who reported on inconvenient subjects—these were the institutional actors who had the most direct stake in the outcome, and who, in many cases, showed the most willingness to push back. This is not terribly surprising. As decades of scholarship on the problem of proxy censorship suggest, those who host the speech of others tend to weigh the free speech costs of compliance with government censorship less heavily than the speakers or associations they facilitate. This is for an obvious reason: it is not their speech that is on the line.

This structural misalignment between those who make decisions for free speech institutions and those who bear the expressive consequences of those decisions points toward a reform agenda that differs in important respects from the one that has dominated free speech scholarship in recent decades. The central task, from this perspective, is not simply to construct stronger external legal constraints on government overreach (though that obviously remains important) but to restructure the internal governance of the private institutions that comprise the democratic public sphere, and the economic and political markets in which they operate, so that those who make decisions on behalf of those institutions are more meaningfully accountable to those within the institution whose expressive and intellectual work the institution exists to enable. The mechanisms for doing so will vary by institutional context. In some settings, existing institutional structures—for example, the norms of shared governance at public and private universities, and in a different way, law firms—may offer promising points of intervention. In others, reform to the external institutional environment—for example, ownership restrictions that prevent the consolidation of control over media markets—may be more promising. What the mechanisms have in common, however, is that they operate not by limiting what the government can do but by altering how it is that the targets of government power react.

This may seem like an overly modest way of approaching what feels like a large and urgent constitutional crisis. But if the free speech system's vulnerabilities are rooted as much in the incentive structures of private institutions as in the adequacy of constitutional doctrine, then addressing those vulnerabilities will require reforms that work at the level of institutional architecture, and that treat questions of organizational governance as questions of free speech theory. That is a different kind of free speech scholarship and a different kind of free speech advocacy than the field has typically produced. But what the past fifteen month strongly suggest is that without this kind of institutional reform, even the most beautifully designed First Amendment rules will be unable in practice to safeguard the independence of the public sphere from governmental sticks and carrots.