First Amendment Pathology, Profs. Jeremy Kessler and Nelson Tebbe

Freedom speech is under pressure. Across social domains, the second Trump administration seems eager to suppress antigovernmental rhetoric and even simple policy disagreement. Administration officials and supporters, however, contend that it was actually Democratic Presidents who inaugurated the newly censorious era, especially in their campaigns against putative misinformation and allegedly unlawful discrimination. Regardless of who started this cycle of suppression, the contours of the free speech norm have become increasingly uncertain and contested. So far, First Amendment litigants and scholars have focused on particular problems in an issue-by-issue manner. To frame up a more comprehensive understanding, we turn to a classic in the literature. A generation ago, Vince Blasi depicted First Amendment history as punctuated by pathological periods. During such periods, strong, popular majorities support the official suppression of small, dissident minorities. He advised courts to anticipate and counteract these periods by formulating bright-line, outcome-determinative rules that encourage judges to stem the censorious tide. Though both Blasi’s diagnosis and his prescription were plausible at the time, neither seems to meet the moment today. Instead of strong, popular majorities tamping down the expression of beleaguered minorities, we see combat between two insecure and ideologically polarized pluralities. Virtually no one believes that black-letter rules are capable of constraining either side. In the Article, we describe how the First Amendment rules to which Blasi appealed have lost their social support and how fractured social conditions stimulate censorship today. We then propose a strategy for blunting the worst excesses of government silencing. Although this strategy ends up resembling the issue-by-issue approach that dominates the literature already, we place that approach on firmer justificatory and conceptual footing. In its modesty and defensiveness, our proposal echoes and honors Blasi’s own response to First Amendment pathology. 

Jeremy Kessler is the Fuld Professor of Law at Columbia Law School. Trained as a legal historian, he writes and teaches about the First Amendment, administrative law, and the relationships between legal and economic change and law and religion. Kessler’s forthcoming book is "Conscription and Constitutional Change in 20th Century America," and he is currently working on two other book projects: "Law and Historical Materialism" and "Law and the Problem of Atheism."

Nelson Tebbe is Jane M.G. Foster Professor of Law and associate dean for academic affairs at Cornell Law School. Professor Tebbe works on freedom of speech, freedom of religion, and general constitutional law. He is the author of a book, "Religious Freedom In An Egalitarian Age," and the coeditor of a volume, "Discrimination By and Against Religion" (forthcoming, 2026).