Regulation Without Rules: How Modern Institutions Punish Speech While Evading Appellate Review

Public-employee speech doctrine appears, on paper, to be well settled. Courts recite familiar tests, invoke settled standards, and reaffirm bedrock First Amendment principles. The rules are known. The frameworks are stable. The citations are routine.

And yet, in case after case—particularly in higher education and other professional settings—speech claims fail even when the law seems clearly to favor the speaker.

This pattern presents a puzzle. The doctrine has not collapsed. The rules have not been repealed. No court has disavowed the First Amendment’s protections for public employees.

And yet enforcement feels hollow.

The explanation is not judicial hostility to speech, nor doctrinal confusion. It is something subtler—and more consequential. Modern institutions increasingly punish speech without promulgating rules, and appellate review—designed to scrutinize rules—has not adapted.

The problem is not that courts have weakened the First Amendment, but that constitutional enforcement remains rule-bound while institutional power no longer is.

The result is constitutional regulation without constitutional accountability.

I. Appellate Review Is Built to Examine Rules

Appellate courts are structurally oriented toward text. They review statutes, regulations, policies, contracts, and written directives. Constitutional litigation proceeds by identifying a rule, measuring its scope, and testing it against constitutional limits.

This architecture assumes a particular model of power:
that regulation is formal, legible, and declarative.

When a government employer adopts a speech code, courts know what to do. When a policy restricts expression, judges can parse its language, assess its reach, and apply familiar standards of scrutiny. The object of review is visible; the legal tools engage.

But that model no longer describes how institutions exercise control.

Power has not disappeared.
It has changed form.

II. The Migration of Power from Rules to Norms

Modern public institutions—especially universities, professional workplaces, and bureaucratic organizations—have learned a lesson from decades of constitutional litigation: rules attract scrutiny.

Rules can be challenged.
Rules can be invalidated.
Rules can lose.

So institutions increasingly avoid them.

Instead, they regulate speech through norms:

• professionalism
• collegiality
• tone
• trust
• judgment
• reputation
• “fit”
• institutional values

These concepts are rarely defined, rarely written, and almost never framed as speech regulations. They are presented as neutral expectations or managerial judgments—facially apolitical and ostensibly unrelated to viewpoint.

Yet in practice, they function as behavioral controls. They signal which speech is acceptable, which is risky, and which will carry consequences.

The regulation is real.
The rule is not.

This is governance by implication rather than proclamation—power exercised precisely by refusing to announce itself.

III. Why Appellate Courts Struggle to Respond

This shift creates a profound problem for appellate review.

When a litigant challenges a rule, the court can ask familiar questions:

• What does the rule say?
• What does it prohibit?
• How broadly does it apply?
• Is it content-based or viewpoint-based?

But when discipline is justified by an assertion that speech was “unprofessional,” “disruptive,” or “inconsistent with institutional standards,” there is often nothing concrete to evaluate.

No text to construe.
No policy to invalidate.
No line to redraw.

Instead, appellate courts are presented with characterizations rather than constraints—descriptions of conduct rather than declarations of law.

And characterizations are notoriously difficult to review.

Judicial review falters not because courts are unwilling to engage, but because modern governance increasingly leaves nothing on the page to engage with.

IV. The Illusion of Deference

Courts often respond by invoking deference: to academic judgment, professional standards, or managerial discretion. The language suggests restraint, not abdication. But in many cases, it conceals a more troubling reality.

What is being deferred to is not expertise in a technical domain, but control over meaning—the power to label speech as harmful, inappropriate, or unfit without articulating why in rule-like terms.

When speech is punished through norms rather than rules, deference becomes outcome-determinative. The institution’s description of the speech effectively ends the analysis.

The court does not weigh interests; it accepts classifications.

This is not traditional deference.
It is unreviewability masquerading as restraint.

V. Regulation Without Rules and the Enforcement Gap

The cumulative effect is an enforcement gap.

First Amendment protections remain robust in theory, but increasingly porous in application. Speech is not prohibited ex ante; it is sanctioned ex post through evaluative judgments that evade doctrinal triggers.

This explains why so many speech claims fail despite careful briefing and impeccable citations. The doctrinal machinery never fully engages because the object of regulation never takes rule-form.

The Constitution limits rules.
Modern institutions use norms.
The law has not kept pace with power’s migration.

VI. Why This Matters Beyond Any One Case

This phenomenon is not confined to universities or speech claims. It reflects a broader evolution in institutional governance.

As constitutional law has refined its scrutiny of formal regulation, power has migrated to informal mechanisms—expectations, reputational assessments, and discretionary judgments insulated from textual review.

This should concern appellate courts not because institutions necessarily act in bad faith, but because constitutional accountability depends on visibility. When regulation becomes opaque, review becomes performative.

Rights exist.
Remedies recede.
And constitutional guarantees begin to function more as aspirations than constraints.

VII. Toward a More Honest Appellate Framework

Addressing regulation without rules does not require courts to abandon deference or invent new doctrine. It requires recognizing that the absence of a rule can itself be constitutionally significant.

Courts should ask:

• What function did the asserted norm perform?
• How was it applied?
• Was it invoked selectively?
• Did it operate as a speech control in practice, regardless of its label?

These questions do not expand judicial power.
They restore it to its proper domain.

They acknowledge a simple truth: constitutional review cannot remain rule-bound when power no longer is.

Conclusion: The Future of Constitutional Enforcement

The greatest threat to free expression in modern public institutions is not overt censorship. It is managerial governance without law—the exercise of regulatory power without the discipline of articulation.

As long as appellate review remains fixated on formal rules while power operates through norms, constitutional protections will continue to erode quietly, predictably, and lawfully.

The challenge for courts is not to rethink the First Amendment, but to recognize where regulation now lives.

If constitutional law is to remain enforceable, appellate review must learn to see what modern institutions have learned to hide—and to recognize concealment itself as an exercise of power.