Just as Odysseus tied himself to the mast to resist the sirens, our constitutional rules bind leaders against the lure of expediency, safeguarding free speech, pluralism, and long-run economic prosperity. Constitutional rules are those that exist because they are the most tempting for leaders to break, and they give us a helpful lens through which we can view today’s free speech debate. From Attorney General Pam Bondi’s calls to go after “hate speech” in the aftermath of the Charlie Kirk assassination, to the Jimmy Kimmel free-speech fallout after FCC calls for intervention, to renewed efforts to criminalize flag burning, populists of the New Right are pushing politics into short-term power grabs to quell speech in ways that erode institutional integrity. All these efforts to quell Americans’ First Amendment rights set a dangerous precedent by normalizing executive overreach and discretionary censorship. Today’s debate isn’t just about civility or platform access; it’s about whether we still understand the economic rationale behind constitutional limits.
The New Right has been politically potent because it has mastered populism’s simple moral drama. Divide the world into two antagonistic camps, the virtuous “people” and the corrupt “elite,” and then promise power as the instrument of justice. Because populism is a “thin-centered” ideology, it readily fuses with other commitments like nationalism, cultural conservatism, and industrial policy. The current flavor of populism has produced an elastic coalition that includes Midwest factory workers who feel displaced by globalization, voters suspicious of credentialed expertise, citizens frustrated by immigration disorder, and even some small-government conservatives who see the state as a temporary sword to cut through captured institutions. Many of the New Right’s current policies would have been familiar to the Left a decade ago: tariffs and industrial policy; fixation on the trade deficit as a national scoreboard; a growing willingness to police speech in the name of public morality or national cohesion; and an eagerness to bend independent institutions to executive will. This is a politically marketable package because it translates frustration into concrete action: use the state. The rhetoric is crisp, the villains are named, and the time horizon is now.
But this is precisely why rule by populist diktat is so dangerous when the subject is speech. Tariffs and subsidies waste resources, regrettably, but discretionary censorship degrades the constitutional order that makes wealth creation and civic peace possible in the first place. Whether it is pressuring agencies to “do something” about disfavored pundits, threatening to make offensive expression a criminal act, or floating schemes to subordinate independent economic stewards to presidential whim, the logic is the same: expand discretion and promise it will be used for the “right” ends. Nevertheless, powers created to punish enemies never remain in friendly hands. The next administration will inherit the enlarged toolkit and repurpose it. In game-theoretic terms, precedents are strategies over time; once you normalize ad-hoc exceptions to speech protections, you change the repeated game from rule-guided cooperation to tit-for-tat escalation. The country then spirals into a contest of retaliation and control rather than a society governed by predictable, general rules.
Classical liberalism approaches the matter of free speech through the lens of preserving institutions that protect individual rights and pluralism rather than maximizing immediate leverage. It is less concerned with who wields power today and more with designing constraints that minimize damage when power is inevitably misused tomorrow. Classical liberalism values free speech not because every utterance is virtuous, but because open contestation is the only mechanism that reliably disciplines error, exposes falsehood, and diffuses power. Its time horizon is long, its disposition humble about knowledge, and its focus fixed on the rules of the game, not the score of the current inning.
Constitutional economics makes the stakes legible. Begin with a simple question: why don’t constitutions bother with petty theft? Ordinary criminal law handles it. The answer is that there is no social temptation to suspend the rule against theft; its violator is an obvious loser in the eyes of almost everyone, and allowing theft doesn’t generate short-run gains that are tempting to the rest of us. By contrast, speech, due process, religious liberty, and property rights are precisely the arenas where the temptation to “make an exception just this once” is recurrent and strong. Sometimes violating a right looks like it might produce a neat, measurable benefit: raid privacy and you might catch more criminals; outlaw a repugnant protest and you might avoid offense; gag a demagogue and you might reduce social unrest; force a critic off the air and you might spare the public from “misinformation.” That is the lure of ad-hoc discretion: visible benefits now, invisible costs to the system that protects all of us over time.
We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing.
Here, Friedrich Hayek’s “generality norm” does important work. Good constitutional rules are general, abstract, and equally applied with no special favors for friends, no special burdens for enemies. They are framed without reference to named persons or groups, and they do not depend on the virtue of whoever currently holds office. Because, as Hayek emphasizes, none of us knows our future station, we might be a majority today and a minority tomorrow, we have reason to support constraints that protect us in bad situations as well as good. Buchanan and Tullock’s seminal work, The Calculus of Consent, presents the economic logic behind the significance of constitutional rules. They describe how people living under uncertainty seek rules ex ante that make cooperation cheaper than conflict, reduce the opportunity for rent extraction, and limit the scope of high-stakes, winner-take-all politics. Stable, general rules transform zero-sum political contests into positive-sum production by clarifying rights, lowering transaction costs, and letting entrepreneurs mitigate uncertainty. The aim is to channel self-interest not through the hope of benevolent officials, but through institutions that make predation costly and production rewarding.
Constitutional rules, therefore, must be designed to resist precisely those situations when leaders feel the urge to break them. They should be difficult to change, with costly procedures like supermajorities, multiple veto points, judicial review, and federalism, so that no faction can recalibrate the rules in a spasm of partisan passion. Yet they also need orderly adaptability: amendment procedures and interpretive doctrines that allow learning from experience without relying on emergency exceptions. Constitutional law invites citizens to consent to the constraints because they know that, in the long run, the surplus from stability dwarfs the thrill of short-run victories. The general and abstract nature of these known rules makes it possible for millions of strangers to coordinate their plans without central command. Applying this to our First Amendment protection of free speech, a bright-line commitment to protect even offensive, foolish, or hateful expression, paired with narrow, content-neutral limits for truly imminent threats, provides the predictability society needs. Open-ended carve-outs like “misinformation,” “hate,” or “national morale” invite partisans to weaponize enforcement. The reason we do not trust discretionary censorship is not that we deny harm, but that we know human beings cannot wield such discretion impartially.
The Odyssean analogy is apt. We bind ourselves in advance to the mast of free speech, free press, and free exercise because we know the sirens of expediency will sing. We accept that a free press will sometimes be cruel and inaccurate; we accept that a public square with robust speech will sometimes be vile; we accept that religious liberty will sometimes shield practices we find strange or even offensive. We accept these costs because the alternative—empowering officials to decide which jokes, which protests, which orthodoxies cross a line—is worse. A society of general rules is a society where citizens can predict the consequences of speaking, organizing, and investing without waiting to see who holds office. It is also the only environment in which truth emerges reliably from contestation rather than from decree.
Populism rejects institutional limits, defining politics as the rectification of injustice by a single will. It prizes power over process, mistaking righteous discretion for justice. In practice, it simply empowers new elites and rewards whoever can punish the “right” villains. That’s why Left and Right populists alike tend toward censorship; silencing opponents feels like victory, but it corrodes the pluralism that keeps power accountable. There is a political temptation to argue that populism “works” because it wins attention and elections. The American Founders knew better: they built a system that channels ambition through structure, protecting rights and dispersing authority. Property rights and free speech are twin pillars of that system; one secures material creation, the other intellectual discovery. A society that censors itself stifles both.
Although the current fervor for populism is high, beneath the daily tumult are signs of a public hungry for meaning, order, and durable institutions. Millennials and Gen Z are filling pews of more traditional religious denominations; young men are especially drifting rightward on some issues; and there is a broader weariness with politics as a permanent emergency and a search for stable ground in a technological whirlwind. These currents will not automatically produce constitutional renewal, but they create an audience for it. And because Americans instinctively understand themselves as citizens of a nation of laws, not plebiscites, the rhetoric of constitutional generality is native to our ears. We do not have a deep tradition of populism; when it has surged, it has usually burned itself out on the rock of our constitutional structure. Our task is to keep that structure intact.
Friends of liberty, then, have two duties in the current free speech fight. One is outward: to make the positive case for pluralism and for the economic logic of rules that are general, predictable, and hard to bend. The other is inward: to push back against their own side when it flirts with using the tools of censorship for friendly ends. That is the moment of real statesmanship. It is easy to defend free speech when it protects your allies; it is harder and more important to defend it when it shields those you distrust or dislike. The Constitution’s design asks us to trade the satisfaction of ad-hoc victories for the prosperity and peace that only stable, impartial rules can sustain. If we recover that logic, the sirens of expediency will keep singing, but our ship will keep moving, and the republic will remain a place where the answer to bad arguments is not the policeman or the regulator, but a better argument made in public by free people.