Imagine the U.S. government requiring public speech or enforcing public silence in return for the benefits it gives out, writes Andrew P. Napolitano. Well, it is happening under our noses today.
U.S. President Donald Trump at the White House on June 5. (White House/Daniel Torok)
All attempts by the government to evaluate the content of speech and deter or punish what the government and its benefactors hate or fear is un-American, unconstitutional and unlawful; and if not stopped, will reduce the American people to serfdom.
During the past three months, the Trump administration has sought to withhold the delivery of governmental benefits in order to punish or reform its perceived political opponents.
These opponents — in the understanding of the White House — are colleges and universities that permit speech the White House claims is hateful, law firms who represent clients or employ lawyers who have been vocally critical of the administration, and even one of the 50 states because of language used in a statute and words articulated by its governor.
Can the federal government condition the acceptance of benefits upon the non-assertion of a fundamental liberty? Asked differently, can the feds withhold privileges to those lawfully entitled to them because it disapproves of the speech of the recipients of the privileges?
In a word: No.
Here is the backstory.
Under the natural law, embraced by the Declaration of Independence and the Constitution, our rights come from our humanity. These are the rights to live, worship or not, associate or not, say what one thinks and publish what one says, defend yourself using the same means as the government, to be left alone, to travel, and to fairness and due process.
These natural rights are basically the rights protected from governmental interference by the Bill of Rights.
Constitutional Protections From Interference
The Constitution doesn’t purport to grant fundamental rights. Rather, since the rights pre-existed the nation, the Constitution essentially prohibits the government from interfering with the rights.
The classic example is the First Amendment, which reads in part “Congress shall make no law … abridging the freedom of speech, or of the press.”
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James Madison, who drafted the amendment, insisted upon referring to “speech” as “the” freedom of speech, in order to emphasize the understanding of the Framers that free speech came before the government.
When did it come? It came to all humans at the age of reason.
The rights that come from our humanity are claims against the whole world. Thus, to exercise them, one doesn’t need a government permission slip.
To paraphrase John Stuart Mill, if all the world but one were of like mind on an issue and only one person disagreed, because the freedom of speech is a natural right and thus a claim against the whole world — meaning it may be exercised with impunity — the world would have no more right to silence the one dissenter than would he, if he had the power, have the right to silence the world.
This Madisonian/Millian understanding of human rights is the modern articulation of the Natural Law, codified 775 years ago by St. Thomas Aquinas.
Jefferson and the revolutionary generation accepted Aquinas in the Declaration, which states that we are endowed by our Creator with certain inalienable rights.
Those rights are inalienable because they are natural and, thus, they cannot be taken away by legislation or command; they can only be voluntarily given up. A bank robber waives his natural rights when he steals money from the bank. Because he denied others the natural right to their money, he has waived his own rights.
The original U.S. Declaration of Independence and other founding documents on display at The National Archives’ Rotunda for the Charters of Freedom in Washington, D.C., between two Barry Faulkner murals. (Kelvin Kay /Wikimedia Commons/Public Domain)
When the government gives out privileges, like a driver’s license, the right to vote, a security clearance or research funds, it does so with strings attached. Those conditions must be rationally related to the privilege granted. You will drive the speed limit, you will only vote once in an election, you won’t disclose the secrets you learned, you will not interfere with the human rights of others on your campus.
Much of this is second nature to the recipients of governmental benefits, even though the government grants benefits when it lacks the authority to do so. Financial aid to education and foreign countries are nowhere authorized by the Constitution, but the feds give it away anyway.
Gaza Solidarity Encampment at Columbia University in April 2024. (Abbad Diraneyya, Wikimedia Commons, CC0 1.0)
Can the feds take these privileges back for the abuse of them? The short answer is: yes, but subject to natural rights. Thus, state governments can withdraw the driver’s license of a persistent speeder or drunk driver, but they cannot withdraw a driver’s license because the driver is driving to a political rally in support of a candidacy adverse to the government that gave him the driving privilege.
The strings attached to governmental benefits cannot infringe upon or chill the exercise of fundamental liberties by the recipients of the benefits.
The Supreme Court articulated this legal principle with respect to individuals in 1972 in Perry v. Sindermann (invalidating the firing of a public school teacher who criticized the board of education) and with respect to the states in 2012 in National Federation of Independent Business v. Sebelius (invalidating a portion of the Affordable Care Act which punished the states for not re-writing statutes).
These cases articulated and reinforced the doctrine against unconstitutional conditions. That doctrine is the basis for the recent spate of judicially imposed injunctions barring the White House from denying the benefits and privileges the government has given out because the recipients have exercised or declined to exercise their freedom of speech as the White House wishes.
If this doctrine were not the law, then our natural rights would not be inalienable.
Imagine the government requiring public speech or enforcing public silence in return for the benefits it gives out. Well, you don’t need to imagine that, as it is happening under our noses today; and but for an independent judiciary, the feds would be able to use the withdrawal of privileges and benefits to silence speech they hate and fear.
Unbridled freedom of speech has been and remains utterly integral to American history, humanity and happiness. It is the principal protection of all other freedoms. Without it, Americans will become servants to whomever runs the government. Is that what’s coming?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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The screw on “inalienable human rights” keeps tightening.
The Patriot Act written by Joe Biden (or so he proudly claimed) was put in action only after 9/11. The discrepancies in tolerance of protesting (compare the 2020 George Floyd Protests to the January 6th Protests to the present LA Anti-Ice Protests). Anti BDS laws passed in 38 states.
Americans can say anything they like AS LONG AS THE GOVERNMENT APPROVES, otherwise you will lose your job and livelihood. You need not be in jail to have your life ruined.
From my (a retired scientist’s) perspective, Covid was by far the worst government over-reach and suppression of rights in American history. You were censored for pointing out basic immunological concepts, such as Antibody Dependent Enhancement of infection, Original Antigenic Sin (meaning you lost almost all vax immunity with escape variants of SARS-CoV2), and much better natural infection immunity (the CDC tried to sell mRNA vaccines as more effective). Not only was the science replaced by Official Narratives, but well credentialed dissenters were also censored (even by scientific journals), and many were fired from their jobs. The overwhelming number of Covid deaths in the US occurred after the roll-out of the mRNA vaccines (unheard of with any “safe and effective” vaccines).
People lost their jobs for refusing the “leaky” vaccines (not coincidentally, the mandates came from Biden after it was well known that the vaccines did not prevent infection nor transmission. Covid infection immunity was MUCH more effective; yet people including a huge number of naturally immune health care workers lost their jobs and livelihoods for refusing these vaccines).
The Official Narratives in the US Covid response were full of lies (intentional?) The CDC claimed 94% of those over age 65 complied with the first two jabs and most continued with boosters. Globally most Covid deaths were in those over age 80.
“National Security” and “Public Health” trump all natural rights. Government is about control, by whatever means possible, and the means are growing exponentially.
“Imagine the government requiring public speech or enforcing public silence in return for the benefits it gives out.”
Historical examples do come to mind. The McCarthyism during Eisenhower’s Presidency. The Red Scare of the World War 1 era and the 20’s. Both appear to require public silence or ritual statements of support. From the McCarthy era, we still put our hands on our hearts and make a public show of pledging allegiance to a piece of cloth representing capitalism and a government of the oligarchs, by the oligarchs and for the oligarchs. And woe to those who fail to stand or fail to properly salute during the ritual.
America has always had limits on its allowed freedom and allowed speech. Ask a Wobbly about it. Or realize that the KKK was the enforcers of such for a century. This is the America I learned by growing up and living in it. Brave and Bold talk about Liberty, but then by gawd, you had better not stand up and say that socialism or communism seems like an idea that might work better for ordinary people. You’ll find a cross burning in your yard, and you’d better realize that this is a death threat that will come true if you don’t run. Welcome to Capitalist America, where we don’t tolerate change and we don’t like people like you. Challenging the system that says the Rich must always get Richer was always verboten in my lifetime. No matter how much BS you heard about “freedom” and “liberty.”
America has been sliding down this slippery slope for a long, long time.
“Imagine” an “of, by & for the people,” President versus being “gored,” straight-through the heart!!! Twenty-Five (25) years, ago, imo, “[reduced] the American people to serfdom.”
….. 12.12.2000, “Merry Xmas!” The Ayatollahs, on the SCOTUS, 1) canceled the “Recount;” 2) deemed the “hanging chad” is the “jackass” in Bush v. Gore; 3) “gifted” the USPresidency to the “elephants in the room,” Bush-Cheney, Inc. Imo, SCOTUS’ decision, has led to decades of MADness (Mutually Agreed Deception, Destruction, Death ness), i.e., May 7, 2025, H.R.1007-Antisemitism Awareness Act of 2025 aka Antisemitism Awareness Act of 2025:
….. “To provide for the consideration of a definition of antisemitism set forth by the International Holocaust Remembrance Alliance for the enforcement of Federal antidiscrimination laws concerning education programs or activities, and for other purposes.”
And, the sign says, “Protest & Survive, the Shark-Infested Waters.”
W/o a doubt, “we’re not in Kansas, anymore!” “Lions & Tigers & Bears?!?” oh, f/no! *“The reality is, we “live” in a world of sharks, minnows–and baby sharks;” High above, are the “Killer Whales.” We, the serfs, are “swimming w/the sharks,”i.e., *“The US House of Reps overwhelmingly passed a bill that would expand the federal definition of anti-Semitism, despite opposition from civil liberties groups. The bill passed by the House, on 5.7.25, by a margin of 320 to 91; &, it is largely seen as a reaction to the ongoing antiwar protests unfolding on US university campuses. It now goes to the Senate for consideration.”
There are many ways to deal with $harks & Minnows. *“But let us not forget that,” the “funny thing about sharks, they don’t really go after minnows; they are too small. But they will go after each other once blood is drawn.“
Concluding, 1) “We,” the people are the minnows & “they” are coming after us! 2) “Keep on top of which kinds of sharks are native to your waters so you know what to expect — and how to react. 3) “There’s blood in the water; don’t drink the water.” 4) “Just keep swimming.” Onward & Upwards! TY.
* Jonathan Cook, 6.5.25 @ Piers Morgan Versus Palestinians
* “Four Ways to Deal with Sharks and Minnows in the Office,” @ hxxps://management.org/blogs/training-and-development/2013/01/30/four-ways-to-deal-with-sharks-and-minnows-in-the-office/
* “US House passes controversial bill that expands definition of anti-Semitism.” hxxps://www.aljazeera.com/news/2024/5/1/us-house-passes-controversial-bill-that-expands-definition-of-anti-semitism
The mere sight of this guy TURNS MY STOMACH.
One does not forfeit ALL rights by the allegation one has violated the rights of another. All claims of a rights’ violation must be duly adjudicated; otherwise, claims of rights’ violations are simply free speech. No exceptions to due process.
There is an important word in the Mister Jefferson’s Declaration of Independence, that modern Americans either do not see or do not know how to process. Its a short little word, only three letters long …. “all”.
The Declaration declares that all people have inalienable rights, among them the rights of Life, Liberty and the Pursuit of Happiness. The part that almost no Americans seem able to process is that since all others also have rights, then all rights have limits. I found this out as a freshman in college with a new stereo. I thought I had the right to listen to music at 3am. Turns out, the rest of the dorm thought they had the right to sleep at 3am. My right hit the limit of their rights.
All rights are a negotiation. There is always a boundary between your rights and the rights of other around you who also have rights and can and should insist on them. From there, reasonable people can reach a compromise, such as loud music in a dorm being ok at 3 in the afternoon, but not at 3 in the morning. When all people are equal, then rights are always a negotiation between equals who have equal rights.
Modern Americans are pushing an aggressive authoritarian point of view when they say that they have rights and by gawd they are going to run over anyone they have to so that they can do whatever they want to do. That’s the way Old King George, and New King Donald think.