The First Amendment doesn’t protect what most people think it protects. The Founding Fathers wrote it to defend a specific thing: political speech directed at government. Not offensive art. Not commercial advertising. Not the content moderation disputes on a social media platform. Two centuries of doctrinal expansion have broadened the amendment’s formal coverage considerably and, in doing so, have made it paradoxically harder to protect the speech that made the whole enterprise necessary.
James Madison’s draft, submitted to the First Congress in 1789, prohibited Congress from abridging the freedom of speech or of the press. The target was explicit: The federal government’s power to suppress political opposition through criminal prosecution, prior restraints, and licensing. Patrick Henry’s objection was that federal power without a specific prohibition would find a way to use it. They weren’t writing an abstract theory of free expression. They were writing a prohibition against specific tools they had watched used against them.
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The Sedition Act of 1798 tested that prohibition within a decade. President John Adams’s administration prosecuted editors, pamphleteers, and a sitting congressman for “false, scandalous, and malicious” writing about the government. No court struck it down. Thomas Jefferson ran against the act in 1800, won, pardoned those convicted, and ended the prosecutions. The founders’ design worked not because a court drew a line, but because the voters did.
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The speech the founders actually cared about is a different story.
I publish political commentary under my name, with my firm’s name attached, in an environment where institutional investment management, university guest lecturing, and expert witness work all create professional contexts in which expressed political views carry real costs. No federal prosecutor is involved. No statute is being violated. The mechanisms are subtler: a sourcing relationship that dries up, a speaking invitation that doesn’t arrive, a professional association that finds your views inconvenient. The First Amendment doesn’t reach any of it.
That gap is the modern free speech problem. The formal legal environment has never been more protective. The practical environment for political speech, particularly in professional and institutional settings, has rarely been more constrained by informal mechanisms that law can’t see. Brandenburg v. Ohio doesn’t have an answer for the university administrator who decides which speakers get invited and which don’t.
Murthy v. Missouri (2024) brought this into focus without resolving it. The plaintiffs argued that the Biden administration coerced social media platforms into removing content through demands backed by regulatory threats. The Supreme Court dismissed on standing grounds. The underlying question, whether government coercion of private intermediaries constitutes state action triggering constitutional limits, remains open.
The platforms are private. The pressure is governmental. The suppression occurs through private actors responding to signals that don’t quite constitute direct orders. The founders would have recognized the architecture. General warrants operated on the same principle: The government named what it wanted, and an officer it controlled did the taking. What’s modern is the scale.
The Foundation for Individual Rights and Expression has documented the campus speech code regime for decades. Formally protected speech meets a bias response team or hostile environment process applying a standard that the Brandenburg test would never sanction. No prosecutor files charges. A professor gets a letter, a student gets a hearing, a speaker gets disinvited. The amendment’s formal protection is irrelevant to every step.
The founders designed the amendment to constrain a government whose tools were explicit: statutes, prosecutions, licensing boards. Informal mechanisms operating through private actors, reputational economics, and institutional capture don’t fit that design. Political accountability, which worked against the Sedition Act in 1800, doesn’t work against distributed private enforcement with no single accountable actor.
What the founders built remains sound. The Brandenburg standard genuinely protects political speech from explicit government suppression. The problem is the assumption that a First Amendment in good doctrinal health produces a free speech environment adequate to the purposes the founders had in mind. It doesn’t, and they didn’t expect it would. They expected the citizens to do the rest.
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The citizens aren’t doing it. The professional consensus around acceptable political views has tightened in institutional settings at precisely the moment the formal legal protection has broadened. That’s not a constitutional crisis. It’s a civic one.
The First Amendment was built to hold back a government. Holding back a professional class that has decided certain speech is inconvenient requires something the founders also counted on and that we’ve stopped producing: civic courage.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a bachelor’s degree from Northeastern University and has completed postgraduate studies at the University of California, Los Angeles; the University of Pennsylvania; and Harvard University. He writes about issues in finance, constitutional law, national security, human nature, and public policy.
