The modern First Amendment is, or is supposed to be, an anti-authoritarian body of law. One of the key assumptions that underpins the cases is that, as Judge Learned Hand put it in 1943, “right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection.” Courts accordingly justify the protections the First Amendment provides to speech, press, and association as necessary to ensure the decentralization of control over knowledge and opinion that enables the discovery of truth, and is a precondition of democratic government also. Indeed, the ideal of a decentralized and egalitarian public sphere, in which “no official, high or petty, can prescribe what shall be orthodox,” underpins vast swathes of First Amendment law.

What the past year of political life demonstrates, however, is that it is not what the modern First Amendment actually enables, or at least, reliably guarantees. Since coming into office, the Trump administration has attempted to do precisely what the First Amendment cases make clear that no government may do: namely, authoritatively select the right conclusion that members of the political community must reach about a whole host of contested political matters (gender, diversity, American history) and punish those who dare to disagree. And yet, while individual court cases have resulted in victory for some of the speakers and institutions who have been attacked by the administration, in many other cases, those subject to attack have simply complied rather than challenge the administration’s actions in court. Others meanwhile have complied in order to avoid any future attack. The result is a system of free expression that is far from unrestrained; one instead in which the federal government exerts by no means uncontested but nevertheless significant control over the terms of public debate and the meaning of truth.

This fact poses a profound challenge to First Amendment law and theory, as well as to democratic system in the United States. It is all very well and good for the First Amendment to fail to solve problems that it is not designed to solve. But one might argue without exaggeration that preventing a wannabe dictator from imposing on members of the political community his own brand of orthodoxy is the number one thing that the elaborate body of First Amendment law that has built up since the 1930s is supposed to accomplish. And yet it appears largely unable to do so today. Why?

The failure of the First Amendment to live up to its anti-authoritarian ideal almost certainly has multiple causes, many of which have little do with the content of its legal rules per se. But at least one cause of the failure is the narrowness of the doctrine’s conception of what is required to guarantee an egalitarian system of free expression. The cases assume that all courts have to do to ensure a public debate in which all members of the political community are free to speak is prevent specific efforts on the part of the government to limit the scope of that debate, either by directly punishing those who express views it dislikes or associate with those who do, or by leveraging its financial and regulatory muscle to indirectly punish those speakers or associates. But this assumption presumes that, absent this kind of discrete governmental censorship, public debate is fundamentally egalitarian and open to all. And yet, as the current crisis vividly illustrates, that is simply not the case.

To the contrary: an important reason why the Trump administration’s often ham-fisted efforts to control the information environment have been so successful have been the relatively few decisionmakers the administration has had to intimidate. This in turn is a product of the hierarchical, one might even say authoritarian, relations of control that govern much of civil society. In many of the most important arenas of public discussion—schools, workplaces, universities, social media platforms, television and radio networks—very few, and often largely unaccountable, decisionmakers decide who can speak and what they can say. And because those decisionmakers do not have any personal investment in the speech being targeted but do have strong financial and institutional incentives to maintain a good relationship with the government, the result of this centralization of authority and control is often enough ready compliance and a total refusal to use the courts to protect their rights.

It is in other words the authoritarian structures of authority that govern the private as well as public spheres that have made the formal protections the First Amendment provides against government orthodoxy so ineffective in achieving its aims. One might argue that what the United States is currently experiencing is not in that respect a democratic crisis in the deepest sense of the term. The repressive forces of the state have not been exercised sufficiently cruelly to lead dissenting members of the political community to decide simply to shut up. To the contrary: individual speakers (faculty, students, comedians, lawyers) have often shown great courage in defying the administration’s directives. But institutional decisionmakers have been less willing to risk pushback, and under the rules that govern most private institutions—including universities these days—they have no obligation to take account of the dissenting voices of the workers, students, faculty whose interests they in theory represent. The result is a system of free expression that has proven surprisingly vulnerable to the authoritarian impulses of the Trump administration.

This raises the question of what doctrinal fixes are available to make the First Amendment more capable of actually producing an anti-authoritarian public sphere. This is a hard question to answer because it pushes at a deep limit on the First Amendment as it has been interpreted to date: namely, the state action requirement, which prohibits the First Amendment from constraining private action and thereby means that there isn’t much the First Amendment can directly do about private authoritarianism. Absent a major change to the state action rule (something there is little appetite to do) it may be the case that the core ambitions of the First Amendment can only be realized by non-First Amendment bodies of free speech law, such as the ownership caps and other forms of structural regulation that legislators have traditionally used to diffuse power and control in private media markets. In other words, we may have to—and in any case should—conceive of the First Amendment as only one of many legal instruments necessary to produce the kind of anti-authoritarian public sphere in which freedom of speech can be meaningfully exercised.

But the First Amendment can and should play a part. First, and most obviously, First Amendment standing should be clarified to ensure that it is not only those in institutional positions of authority that have the ability to go to court to defend themselves against governmental repression, but other institutional stakeholders. Courts should construe First Amendment standing, in other words, as they have in the past, to ensure that anyone impacted by governmental speech repression that has an incentive to defend their rights in court should have the ability to do so.

Second, although courts may be able to do little about the authoritarianism that characterizes much civil society, they can make it harder for a powerful executive to take advantage of the vulnerability this produces by imposing constraints on intra-governmental authoritarianism. Specifically, courts could extend the same kinds of autonomy rights that public universities currently enjoy against top-down political control—rights that are intended to protect the multitude of tongues that is the public university—to the knowledge institutions of the federal bureaucracy, including important grant-making institutions, such as the National Institutes of Health and the National Science Foundation. Control over these institutions has proven, particular in the university context, a linchpin of federal control. And yet, there is no obvious reason why the constraints the First Amendment imposes on top-down control of research universities should not or could not also apply here.

More generally, courts could recognize the free speech dangers that are created by authoritarian structures of control in civil society and develop doctrines to better account for that. Thus far, the cases have been remarkably insensitive to how power relations structure and distort decision-making in private entities (as I and other First Amendment scholars have noted in prior work). After the Second Red Scare, the Supreme Court slowly, creakily, and with some misgivings developed a whole range of what we might call anti-leveraging doctrines to account for the new mechanisms the federal and state governments used to limit the diversity of voices in the public sphere, and impose a kind of authoritative selection. The same process of doctrinal innovation may be necessary after this new period of authoritarian repression which resembles, in some respects, the Second Red Scare but to an extent not true then, takes advantage of the increasingly centralization of control—the institutional authoritarianism—that today characterizes so much of American civil society. This is the way in which the Trump administration has been able to achieve something like dominance without hegemony. It is a problem that is urgent to solve.