The First Amendment is 45 words long, and for most of American history nobody was entirely sure what they meant. The Supreme Court did not squarely apply the Free Speech Clause against the states until 1925. The modern architecture of American speech protection—the doctrines governing incitement, defamation, prior restraint, public forums—was substantially built between 1964 and 1974. Measured against the age of the republic, our free expression law is a recent construction. Measured against the age of the problem it addresses, it is an infant.

　　But even this early, we have started to reach the edges of what that construction can do. The hardest controversies of the past decade have not been about whether the government may imprison a speaker. They have been about a university deciding whom to invite, a platform deciding what to amplify, a professional association deciding whom to expel, a community deciding whom to shun. The First Amendment has almost nothing to say about any of it. It restrains the state but remains silent on nearly every institution where the fight is happening.

　　Public universities occupy a particularly complex space in this landscape, acting as legal hybrids of civil society associations and state actors. Because they are government-funded entities, they are formally bound by the First Amendment and cannot censor speech merely because it is offensive or controversial. Yet, as institutions of higher learning, they also function as distinct intellectual communities with their own academic standards, pedagogical missions, and codes of conduct. When public universities attempt to regulate campus discourse, they constantly stumble over this dual nature: treating themselves as private entities when convenient yet remaining fully subject to constitutional constraints that bar the state from policing viewpoints.

　　Into that institutional silence we have poured a great deal of improvisation: speech codes, content policies, bias-response teams, community guidelines, open letters demanding removal and counter-letters demanding reinstatement. Almost all of it is being invented from scratch, by people under deadline pressure, with no shared theory of what they are doing or why. The results have satisfied nobody.

　　Another legal tradition, though, confronted these questions a very long time ago and produced answers of surprising sophistication: the rabbinic sources. For readers unfamiliar with this legal corpus, the rabbinic tradition refers to the foundational legal and interpretive texts of classical Judaism, centrally including the Mishnah, the Talmud, and rabbinic codes, which were developed across late antiquity and the medieval era. I did not come to that tradition looking for guidance. For most of my experience as a lawyer and scholar of American free expression law, these rabbinic sources were, for me, family furniture: present yet unexamined. When I finally read them as a lawyer reads a code rather than as a descendant reads an inheritance, what struck me was not their piety; it was their engineering.

　　Begin with a problem that has no First Amendment analogue: what a community owes the argument that lost. American law protects a speaker’s right to make a losing argument. It has no view whatever on whether anyone should write it down. Once a question is settled by a court, a vote, or an editorial decision, the losing position drains away from the record. It survives, if at all, in a dissent that most people will never read.

　　The rabbinic tradition can teach us how to think about and use our free expression in ways that promote mutual respect and a shared pursuit of truth.

　　The rabbinic system took the opposite approach as a matter of formal structure rather than sentiment. Its foundational legal text, compiled in roughly the third century, records minority opinions alongside the rulings that defeated them. An early passage asks the obvious question—why preserve a view that is not the law?—and answers that a later court might need it. The reasoning is not generous; it is actuarial. The current majority might be wrong, and a tradition that discards its losing arguments has destroyed the only material from which a future correction could be built.

　　John Stuart Mill made a version of this argument in On Liberty in 1859, and it has been the philosophical backbone of Anglo-American free expression thinking ever since: suppress an opinion and you lose either the truth it contained or the chance to sharpen the truth against it. Mill was right, and he was roughly fifteen centuries late. He was also, crucially, writing philosophy.

　　The rabbis, however, were writing law. They did not argue that dissent ought to be preserved. They built a text in which dissent could not be avoided, where the losing opinion sits on the page beside the winning one, and no student can learn the rule without also learning the objection to it.

　　Consider what an equivalent commitment would look like in American institutional life. Not a right to speak, which we already have, but a duty to record, a norm under which a university that declines to invite a speaker documents the case for inviting her, a platform that removes a category of content preserves the argument that it should not have, a professional body that adopts a position files the dissent alongside it and keeps it there. We do a diluted version of this in judicial opinions and almost nowhere else. The older system treated it as structural.

　　The second problem is one American law has deliberately declined to solve: how to tell serious expression from performance. Our present doctrine evaluates speech almost entirely by content and consequence. Does it incite imminent lawless action? Is it defamatory? Is it obscene? These are questions about what was said and what followed. They are not questions about why the speaker said it, and the omission is intentional; American courts are rightly wary of anything that looks like an inquiry into motive, which invites the state to punish disfavored intentions.

　　That caution makes sense for courts but proves disastrous when institutions borrow it. A university applying a content test to speech ends up asking whether an idea is offensive, which is a question with no stable answer and no principled stopping point. A platform applying a consequence test ultimately asks whether a post caused harm, which collapses into whether anyone complained.

　　The rabbinic tradition, by contrast, asked a different question and asked it early. A much-cited passage distinguishes between disputes conducted l’shem shamayim—for the sake of heaven—and disputes that are not; only the first kind endures. The contrast it draws is not between civil speech and rude speech, or popular and unpopular, or comfortable and offensive. It is between argument aimed at getting the answer right and argument aimed at getting the arguer ahead. The paradigmatic bad-faith case in the tradition is a rebellion whose grievances may well have had merit; what condemned it was that its purpose was position rather than truth.

　　This is a harder test to apply than a content test, and that is the point. It is also the test most of us use in private. We can tell the difference between a colleague who challenges our work because he thinks it is wrong, and a colleague who challenges it because he wants our job. We know that the first is valuable even when he is mistaken and the second is worthless even when he is correct. We have not built any institution capable of saying so out loud, because the vocabulary we inherited, which emphasizes harm, offense, and safety, has no place to make that distinction.

　　The third problem is the one nobody has solved: what silencing costs, even when the silencing is legitimate. Here, the older tradition does something I have never seen an American source do. Its central story about interpretive authority concerns a rabbi who dissents from the majority on a technical question and is overruled despite, in the telling, producing miracles in his support and a voice from heaven endorsing his position. The majority holds firm on the ground that legal authority has passed to human deliberation and cannot be reclaimed by revelation. It is the tradition’s founding statement akin to democratic legitimacy, and it is celebrated as such.

　　But the passage does not end at the triumph. It goes on to record that the dissenter was excommunicated, that he wept, and that catastrophe followed: crops were ruined, dough was spoiled, whatever his gaze fell upon was consumed. The community was procedurally correct, yet the world was worse for it. The text declines to resolve the contradiction. It preserves both halves and leaves the reader holding them.

　　American institutional practice has no equivalent. When a university disinvites a speaker, or a publication severs ties with a contributor, the resulting statement is invariably a document of complete confidence. The decision was right; the process was sound; the values were upheld. Nobody writes, “This was within our authority, we believe we were correct, and we are aware that we may have destroyed something we cannot see.” That sentence is nearly unsayable in contemporary institutional English, and its absence is a large part of why these decisions inflame rather than settle.

　　The tradition I am describing is in some respects far more restrictive than American law, and the way it handles the collision is instructive. It maintains, for instance, a sweeping prohibition on damaging speech about others, binding even when the statement is true, extending to listening as well as speaking.

　　A functioning free expression culture requires more than a legal boundary against state power; it requires a moral architecture for how we engage with one another.

　　On its face, this is stricter than any campus code ever drafted. But the same body of law carves out a broad exception for speech that serves a constructive purpose, and the exception does the real work. Exposing a dishonest merchant is permitted. Reporting misconduct is permitted. Challenging a colleague’s flawed reasoning is permitted. The line is not drawn to prevent discomfort but rather to determine whether the speech accomplishes something beyond the damage it does. And the tradition is emphatic in the other direction, too: staying silent while harm proceeds is itself a violation. The duty runs both ways.

　　What contemporary institutions have absorbed is the prohibition without the exception. We have internalized the instinct that speech which wounds is presumptively wrong and lost the counterweight holding that speech which wounds in service of something real is presumptively required.

　　The same structure appears in how the tradition handles group solidarity. It holds, as a foundational principle, that members of the community are responsible for one another, and it pairs that principle with an affirmative obligation to rebuke a fellow member who is going wrong, qualified by a demand that the rebuke be delivered without contempt or public humiliation. Solidarity does not license silence. Dissent does not license cruelty. Both halves bind simultaneously, which is why nearly every institution under pressure chooses one, which is the easier option.

　　And on the oldest question of all—whether a just end excuses unjust means—the tradition’s central verse on the pursuit of justice repeats the word, a doubling that commentators have long read as a constraint rather than emphasis: justice must be pursued justly. Applied to expression, that is not a slogan against any faction’s tactics. It is a rule that cuts at everyone. If you suppress your opponents to advance a just cause, the cause has already been compromised by the method. This indicts campus shout-downs, state censorship, and economic pressure campaigns with equal force, which is precisely why no current political faction quotes it.

　　I am not proposing that American institutions adopt a religious legal system, and I am not claiming that this tradition is unique; other old bodies of law contain comparable machinery, and the case for looking at them is the same. My claim is narrower, and I think harder to dismiss. The rabbinic tradition can teach us how to think about and use our free expression in ways that promote mutual respect and a shared pursuit of truth.

　　We are trying to build governance for expression inside private institutions, in real time, with a doctrinal vocabulary developed for an entirely different purpose: restraining the state. That vocabulary gives us rights and prohibitions. It gives us almost nothing on obligation: no duty to preserve the losing argument, no test for distinguishing inquiry from positioning, no method for acknowledging that a defensible decision may still have cost something irreplaceable. Those are the exact questions our institutions keep failing to address.They are questions other legal traditions have worked on for centuries, while ours have not yet been written.

　　A functioning free expression culture requires more than a legal boundary against state power; it requires a moral architecture for how we engage with one another. It would be strange, and a little arrogant, to keep improvising our way through this crisis without at least reading what the older drafts said, not just to fix our institutions, but to recognize the obligations we owe to each other.