Simona Grossi (Loyola Law School Los Angeles; University of California, Berkeley – Berkeley Center on Comparative Equality & Anti-Discrimination Law) has posted First Amendment and the Executive Power on SSRN. Here is the abstract:
This Article develops a structural theory of expressive liberty under modern executive governance. It argues that the most significant contemporary threats to the First Amendment no longer arise primarily from statutes or criminal prohibitions, but from the routine exercise of executive power within the administrative state. Through personnel authority, funding decisions, access controls, institutional restructuring, and informal pressure, the modern presidency increasingly governs expressively—not by banning speech, but by reshaping the incentive structures and dependencies that determine which speech is professionally viable, institutionally supported, and publicly audible.
The core claim is that existing First Amendment doctrine is miscalibrated for this form of power. Contemporary doctrine remains oriented toward episodic punishment, formal censorship, and historically familiar mechanisms of suppression, while executive expressive control operates ex ante, structurally, and through discretion. As a result, constitutional analysis systematically under-detects expressive harm when suppression is framed as ordinary administration, budgeting, or management rather than as speech regulation.
Drawing on public-employee speech doctrine, political patronage cases, presidential removal jurisprudence, informal-coercion precedents, and unconstitutional-conditions theory, the Article identifies a latent but under-theorized constitutional principle: the First Amendment constrains not only what the government may punish, but how executive power may be used to structure expressive environments. When executive authority predictably induces self-censorship through dependence, anticipatory compliance, or institutional vulnerability, the constitutional injury is structural even in the absence of formal sanctions.
The Article applies this framework to recent executive actions—including the dismantling of diversity and inclusion infrastructure, retaliation against legal advocacy, and funding-based and access-based pressure on public broadcasting—not as isolated controversies, but as manifestations of expressive governance. The harm in these cases is not exhausted by any individual deprivation; it lies in the systematic distortion of expressive baselines and the erosion of intermediary institutions essential to democratic accountability.
The Article concludes by proposing a doctrinal recalibration. It advances burden-shifting presumptions for viewpoint-linked executive action, clear-statement rules when expressive infrastructures are implicated, and heightened scrutiny for executive measures that condition access, funding, or professional viability on ideological compliance. More broadly, it argues that the First Amendment must be understood as counter-administrative as well as countermajoritarian: a structural constraint on executive governance itself, necessary to preserve the conditions of democratic contestation in the modern administrative state.
Highly recommended.