This essay continues our look at power-critical theories of speech, i.e., the frameworks that ask what it means to protect “free expression” in a world where power shapes who is heard and who is silenced.
The challenge for these theories is never just about drawing lines. It’s about who holds the pen.
Even if we could agree on what counts as subordinating speech (speech that silences instead of liberates), there remains the harder question: who decides? Because the moment law or policy begins to act on these theories, the power to define emancipation itself becomes a kind of authority. And that authority, as history keeps reminding us, rarely stays in the hands of those it was meant to protect.
Who Gets to Judge?
Power-critical theories ask government to do something ambitious: not just to prevent censorship, but to counteract inequality in the realm of speech itself. Yet any institution we empower to do that carries its own risks. Legislatures are democratic, but also majoritarian. Courts promise neutrality, but judges are products of the same hierarchies these theories expose. Agencies might have expertise, but they are easily politicized.
Imagine giving a legislature the power to decide which speech “subordinates.” Would it have protected abolitionist pamphlets in the 1830s, feminist protests in the 1910s, or civil-rights marches in the 1960s? Each of those movements was once described by those in power as dangerous to “public order.” Even today, many governments use the language of equality to suppress dissent. They argue that protest movements “divide society” or “offend traditional values.” The danger is not theoretical; it is cyclical. Power-critical tools can be turned against their own logic the moment political winds shift.
Courts fare no better. Asking a judge to decide which speech is emancipatory means asking her to take sides in the moral and political conflicts of the day. That sits uneasily with the rule-of-law ideal that judges apply neutral principles rather than moral hierarchies. Yet refusing to make such judgments leaves the deeper inequalities untouched. The dilemma is built in: the same system that promises protection from domination is also structured by it.
Even within the groups these theories aim to protect, there is no single consensus. MacKinnon’s claim that pornography silences women was—and remains—contested by feminists who see sexual expression as a form of agency. Many minority advocates resist hate-speech bans, arguing that they could be used to stifle the very voices they intend to shield. The “subordinated” are not a single, unified subject; they disagree about what liberation looks like. Any law that claims to speak for them risks speaking over them.
The Fear of Orthodoxy
That is why the legitimacy problem runs deeper than institutional design. It is a problem of trusting any authority to enforce a vision of justice without ossifying it into orthodoxy. Once the state acquires the power to declare which speech uplifts and which oppresses, the meaning of liberation becomes fixed by law. And when power changes hands, the same machinery can be redeployed in the opposite direction.
The First Amendment’s traditional insistence on viewpoint neutrality was built to prevent exactly that: to stop government from picking winners in moral debate. Power-critical theorists reply that neutrality itself is a myth because it quietly sides with those already on top. Both are right. Neutrality can protect the strong; partiality can be abused by the powerful. Between them lies the tension that defines modern free-speech theory.
Some scholars try to make the project legitimate by layering procedural safeguards: focus on context, not content; limit rules to documented patterns of silencing; add due process, clear definitions, and periodic review. These are valuable guardrails, but they don’t solve the core dilemma. Even the most carefully crafted rule still requires someone to decide what counts as “silencing,” what counts as “subordination,” and when the remedy has gone far enough. The danger is permanence. A temporary corrective can harden into a standing orthodoxy, freezing one generation’s moral vision into law.
The better answer, perhaps, is humility: treat such interventions as tools for transitional justice in speech, not instruments of permanent truth. Power-critical theories remind us that freedom without equality is an illusion. But equality without freedom becomes its own kind of cage. The goal is to balance on that edge and use power to open speech spaces, not to define them forever.
The same logic appears in another part of constitutional law: affirmative action. Both projects begin from the recognition that neutrality can entrench inequality when the playing field is tilted. Just as MacKinnon and Marcuse proposed temporary rebalancing to ensure all voices could be heard, affirmative action relied on time-limited preferences to ensure all people could compete. Justice O’Connor famously suggested in Grutter v. Bollinger that such measures should not be necessary in 25 years, a horizon meant to mark them as transitional, not permanent. But Students for Fair Admissions closed that window early, declaring the time for race-conscious remedies already past. The same uneasy questions remain: When does a remedy become its own form of hierarchy? How do we know when to stop? And can any society committed to equality ever truly return to “neutral” once it has seen how uneven the field has been all along?
Benjamin Franklin once said "Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech." (Actually a quote by an unknown author B.F. copied). George Washington commented, "If freedom of speech is taken away, then dumb and silent we may be led, like sheep to the slaughter." Clearly the founding fathers held the concept of free speech in high regard and a pinnacle right of the people in developing the country. Which is why they made it the very first amendment in the bill of rights. They understood that no authority could wield the power to suppress speech without existential consequences. This is as true today as it ever was.
I like how this article exposes the paradoxical nature of government and equality. The idea that the system that offers protection from domination can only do so through further domination. I find it odd that so many people conflate equality under the eyes of the law with equal outcomes in general. Between equality and fairness. People are inherently not equal, in intelligence, work ethic, physical strength, etc. There can be no equality of outcomes without any form of suppression. If the government assists certain groups, it affects as negative assistance to others. If the government empowers certain speech, it affects as suppression of other speech. This would essentially create inequality in the eyes of the government and end up treating certain people unfairly. It is not within human capacity to correct inequalities bound in our nature, the best we can hope for is to eliminate inequalities in government treatment.