Free Speech and Its Discontents

A government that can silence the speech you hate today can silence the speech you love tomorrow, writes Judge Andrew Napolitano.

“It does me no injury for my neighbor

to say there are 20 gods or no God.

It neither picks my pocket nor

breaks my leg.”  

— Thomas Jefferson (1743-1826)

“Congress shall make no law …

abridging the freedom of speech,

or of the press … ” 

— First Amendment to the U.S. Constitution

By Andrew P. Napolitano

The modern concept of the freedom of speech did not dawn until the Warren Court in the 1960s. In two cases, the Supreme Court ruled that there is no such thing as hate speech and the government may not do indirectly what it is prohibited from doing directly.

In 1969, in Brandenburg v. Ohio, the court ruled that all innocuous speech — even that of a KKK leader publicly condemning Blacks and Jews — is protected and all speech is innocuous when there is time for more speech to challenge it. The court had already ruled six years earlier in Bantam Books v. Sullivan that public officials’ threats to punish publishers unless they silenced their authors were prohibited by the values underlying the First Amendment.

At the core of both of these cases and their progeny is the First Amendment principle that the government — once this meant only Congress; today it means all government — may not evaluate or act upon the content of speech; it may only neutrally regulate time, place and manner. Thus, the use of a bullhorn on a public street in a residential neighborhood to advance a political cause at 3 a.m. may be prohibited because it unreasonably disturbs sleep, not because the government hates or fears the message.

Just last year, the Supreme Court unanimously upheld the values underlying these opinions.

Prior to the Warren Court, and notwithstanding the pithy language of Thomas Jefferson or the direct language of James Madison in the Bill of Rights, the federal courts equivocated in their protections of speech. In wartime, the courts often looked the other way as presidents and Congresses tried to silence and punish the words they hated or feared.

Both Jefferson and Madison believed that the freedom of speech is a natural right. This view originated with Aristotle, was refined by St. Augustine, was codified by St. Thomas Aquinas, and was argued compellingly for jurists by John Locke and for the masses by John Stuart Mill.

All maintained in their writings that freedom of thought is a natural absolute individual right; and the freedom of speech is expressing one’s thoughts.

When drafting the Bill of Rights, Madison insisted on referring to the freedom of speech as “the” freedom of speech, so as to reflect its pre-political existence. When referring to the pre-political existence of a right, those in government have argued that it derives from consensus. The Natural Law teaches that it derives from our individual humanity. It preexisted government. It exists in the absence of government and neighbors. It doesn’t require consensus. It is the key to pursuing happiness.

The use of the word “free” in the phrase “free speech” does not mean speech without cost. It means speech without government. If my neighbor shouts me down, I can shout louder. If the police shout me down, I fear the consequences of shouting louder.

Was a late-night comedian taken off air for a week because of a business judgment made by his employers or because the Chair of the Federal Communications Commission threatened his employers unless they silenced him? If the former, there is no free speech issue, as there is no government involvement. If the latter, the government has attempted to do indirectly what it surely may not constitutionally do directly — evaluate and act upon the content of speech.

Such an evaluation runs directly counter to the modern free speech jurisprudence. The courts call this “chilling.” The threat of government reprisal gives one second thoughts — the chills — about expressing an opinion. Chilling, too, violates the First Amendment.

Is hate speech protected by these values? Today, there is no such thing as hate speech. There is hateful speech; it demeans persons due to an immutable characteristic or event. There is offensive speech. There is disgusting speech. There is evil speech. And there is contrarian speech. We all know these words when we hear them. Yet, since the government is prohibited from evaluating the content of speech, all speech is protected. This does not insulate speech that is accompanied by independent wrongdoing, such as violence to persons or property or threats accompanied by the present apparent ability to carry them out.

The whole purpose of the First Amendment is to protect the speech most folks find offensive since the speech we love to hear needs no protection. But since all thought is absolutely protected and since speech is the revelation of thought, one person’s hateful talk may be another person’s beautiful music. And because the government is prohibited from distinguishing between the two, you can decide for yourself what to hear. Who cares what the government thinks?

Why is government discontented with free speech? Why did Jefferson and Madison craft restraints on government? Because neither trusted the government. Government is irrelevant to speech. Government doesn’t create wealth; it seizes it. Government doesn’t build; it destroys. Government transactions aren’t voluntary; they’re compulsory. Government at its core is the negation of freedom. Hence it wants to silence those who expose its errors and rid itself of those who challenge it.

Government doesn’t change. In our current Uniparty system — with its Republican wing and its Democratic wing — wars rage, presidents kill, debt increases, regulations expand, mass surveillance remains ubiquitous, government grows, liberty shrinks; no matter which wing of the Uniparty temporarily controls government.

What to do about the speech we hate? Ignore it or challenge it. But don’t silence it. A government that can silence the speech you hate today can silence the speech you love tomorrow.

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. 

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The views expressed are solely those of the author and may or may not reflect those of Consortium News.