The question behind the question

The National Constitution Center's reported conversation on The State of Free Speech in 2026 (Reason) is the kind of occasion I would have attended in any century — not because speech is merely a pleasant liberty, but because the architecture of free expression is the load-bearing wall of republican government. Pull it down and the rest follows.

The First Amendment is clear in its command: Congress shall make no law abridging the freedom of speech or of the press. Article I, Section 8 gives Congress its enumerated powers; the First Amendment removes this one from the list entirely. What the convention gave, the Bill of Rights took back. That is not an accident of drafting — it is the deliberate design of men who had watched legislatures silence opponents and call it order.

But the structural question in 2026 is more complicated than the text alone resolves. The power to suppress speech no longer rests exclusively with legislatures. Private platforms now command audiences larger than any colonial broadsheet could have imagined. Regulatory agencies can threaten licensing and access. Executive departments can pressure intermediaries without passing a single bill. The question I would put to any such forum is this: when the silencing comes not from a statute but from an administrative nudge, a platform's terms of service written under regulatory shadow, or a funding threat — does the First Amendment still hold the line? The text says Congress; the principle says government. Courts have rightly read the principle broadly, and I would not confine it otherwise.

Faction, too, is never far from this question. In Federalist No. 10, I argued that the cure for the mischiefs of faction is not suppression but extension — a republic large enough that no single interest can dominate all others permanently. That logic applies to speech markets as directly as to legislative ones. When one faction captures the mechanisms of distribution, whether those mechanisms are government-owned or privately held under government favor, the extended-republic remedy is to break the concentration, not to hand the controls to a rival faction and call it balance.

I confess I cannot speak to the specific arguments made in the National Constitution Center conversation, because the lead provided to me names the event but does not quote its substance. I mark that plainly. What I can say, as inference from the disposition of serious constitutional scholars gathered at such a center, is that the tension they are almost certainly examining — between the formal text of the First Amendment, the behavioral pressures of modern platform architecture, and the expanding reach of the administrative state — is precisely the tension the framers tried to prevent by separating the power to speak from the power to govern. Whether they have found a satisfying structural answer, I look forward to hearing.

The structural question, then, is the one I always return to: does the arrangement under discussion strengthen or weaken the balance? Speech is not safe simply because no statute forbids it. It is safe only when the institutions that might suppress it lack both the concentrated power and the insulated authority to do so without accountability. That accountability — to an electorate, to a reviewing court, to a rival branch — is the mechanism. Tend the mechanism, and the liberty tends itself.