Nothing will chill Tucker Carlson’s exercise of the freedom of speech, writes Andrew P. Napolitano. But that does not absolve Chuck Schumer and the U.S. Senate.
Minority Senate Leader Chuck Schumer in 2020. (Senate Democrats /Wikimedia Common/CC BY 2.0)
By Andrew P. Napolitano
CN at 30
Last week, Sen. Charles Schumer, the leader of the Democrats in the United States Senate, introduced a resolution on behalf of himself and 40 other Senate Democrats that, if passed, would record the sense of the Senate as condemning the media superstar Tucker Carlson because of the political, historical and cultural opinions of a guest on Carlson’s podcast.
You read that correctly: The U.S. Senate is being asked to condemn Carlson because of what someone else said.
Here is the back story.
When James Madison was crafting the iconic language of the First Amendment — “Congress shall make no law … abridging the freedom of speech or of the press” — he insisted that the word “the” precede the word “freedom” in the text of the amendment so as to emphasize the understanding of the drafters and ratifiers that expressive freedoms preexisted the drafting of the amendment.
The theory of law offering that the freedom of speech is pre-political offers as well that it is natural. It comes from our humanity.
The theory of the personal origin of human freedom was crafted by Aristotle, refined by St. Augustine, codified by St. Thomas Aquinas, articulated in treatise form by John Locke and woven into the Declaration of Independence by Thomas Jefferson, who wrote that pursuant to “the Laws of Nature and of Nature’s God” we are all endowed by our “Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
Some scholars contend that freedom comes from a collective community consensus, but most accept the Madison/Jefferson view that freedom is either a gift from God who gave us perfect free will or, because our human nature has developed over thousands of years to seek the truth and avoid pain, our nature has become imbued with the exercise of basic freedoms; chief among which — after life itself — is speech. Of course, if freedom depends on community consensus, it is hardly inalienable.
Madison’s task as the drafter of the Bill of Rights was to codify Jefferson’s lofty language and the values articulated by it into the positive law of the land; in this case, the supreme law of the land.
John Vanderlyn’s portrait of James Madison, one of the authors of the Federalist Papers, and the fourth President of the United States. (The White House Historical Association/Wikimedia Commons/Public Domain)
Some scholars have argued that the speech and press clauses of the First Amendment were intended only to prohibit congressionally enacted prior restraint on speech and publications.
And some have argued that the clauses only restrain Congress, not the states nor the president.
Yet, after a judicial revolution on expressive rights in the federal courts in the 1960s, it is clear that today no government and no person using government assets may abridge the freedom of speech or of the press.
Whatever one’s understanding of the origins of the human freedoms, it is also clear beyond serious dispute that the currently prevailing and nearly universally accepted judicial understanding of the freedom of speech and of the press in the United States reinforces that political speech can be unbridled.
The whole purpose of the First Amendment speech and press clauses is to encourage — and to require the government to protect — open, wide, robust, even incendiary, caustic and hateful expressions about the policies and the personnel of the government.
Now, back to Chuck Schumer and Tucker Carlson.
Carlson speaking at the 2025 Student Action Summit in Tampa, Florida in July. (Gage Skidmore/Flickr/ CC BY-SA 4.0)
In furtherance of the government’s obligations under the First Amendment are numerous prohibitions, two of which are relevant to this Schumer resolution condemning Carlson.
First, the government may not evaluate the content of political speech and act upon that evaluation. Thus, it may not pick and choose what speech it likes and praise it and what speech it hates and condemn it.
Doing the latter — which is what Schumer proposes the Senate should do to Carlson — leads to a second prohibition. The government may not chill the exercise of the freedom of speech. Chilling consists in government behavior — direct or indirect — toward speech that gives the speaker or writer or those similarly situated pause or fear before uttering expressions.
Knowing Tucker Carlson as I do — we worked together at Fox News and remain friends and colleagues today — nothing will chill his exercise of the freedom of speech. But that does not absolve the Senate from the charge of chilling. Chilling is utterly prohibited, no matter the sensitivities or backbone of its target.
The Schumer proposal is a resolution, meaning, it is not legislation that, if passed in the Senate, would proceed to the House of Representatives. It cannot have the force of law. It purports to express the sense of the Senate on Carlson’s decision not to “push back” when a guest named Nick Fuentes articulated speech that Schumer found to be hateful.
But the jurisprudential prohibition on evaluating content and on chilling absolutely prohibit Schumer from using the levers of government power available to him to attack Carlson.
Of course, Sen. Schumer can speak out about whatever he found objectionable from Fuentes and from Carlson’s decision not to challenge his guest.
I suspect Schumer’s is a political motivation intended to see if Republicans will support or oppose his proposal. But there is more here than meets the eye.
Does the government have the freedom of speech? Under the natural law, it does not, as only human beings have natural rights. The government is not a naturally existing being. It is an artificial construct based on a monopoly of force in a given — sometimes changing — geographic area.
In order to exist, government takes assets from persons in its geographic area via taxes and negates some of their freedoms via laws and regulations.
Whatever the government takes and whatever it negates, it may not abridge the freedom of speech, directly or indirectly, by taxes or threats or commands or prohibitions or praises or chilling.
If it could, then we’d have not even the semblance of a representative democracy in Washington or anywhere else.
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 https://JudgeNap.com.
Published by permission of the author.
COPYRIGHT 2024 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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Food for thought on the Doctrine of Discovery that still informs government policy.
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Though I agree with the judge’s critique here, our government is not of, by, and for the people unless you agree with the Supremes that corporations are people and money is speech. Our representation has been usurped by corporate interests. The Gilens and Paige Study makes this clear. That is who Schumer is working for. This must be what the corporate interests want. I await the judge’s critique of this usurping of our government by said interests.
Everything stated in this article is absolute BS! Some of us are so much more human than others as The United States of America from its very beginnings is absurd and abhorrent. Anyone much darker than the white folk from Europe is, was, somewhat considered to be less human than others, for example, Black Africans who were considered to be ‘SLAVES’ or 3/5 of those shiny white humans who wrote all of that American BS stated in the article. God what hypocrites we are here in the western world, The US most certainly a leader in such hypocrisy as to the idea of AMERICA! Oh, my goodness, what of those indigenous locals already living here for thousands and thousands of years, were they enabled in inalienable rights? HARDLY as time went on, they were told to rid themselves of everything they held dear down to their very language, what shame!
To close: I find nothing in this article to celebrate the human condition as so many persons of the human race aren’t really considered human. The United States of America from its founding to its current state of being is a BASTERD CHILD of humanity, which we must, for certain, call HUMAN as Karl Marx once stated, ‘Nothing Human is alien to me!’ as we must certainly call ourselves HUMAN even while living our lives in the BASTERD CHILD state.
That’s a powerful statement and, to my mind, absolutely valid. That said, for all its terrible history and hypocrisy, there is something of a kernel of an idea in the Constitution which didn’t exist in any other country that I know of prior; that is, an attempt to codify human rights in law. Yes, in practice, it only applied to certain groups and, as Howard Zinn has argued, it was created as a buffer to protect the rich from the working classes, BUT – it allowed all the activities that eventually (and with gigantic struggle) led to the successes of the Unionisation, the Civil Rights movement, Roe vs. Wade, and until recently, it prevented the US from becoming a fascist dictatorship. In Soviet Union, civil rights and union activists would have been (and were) shot, mass-arrested and sent to the gulag having been tortured into confessing to trumped up charges. Yes, shootings and imprisonment for activism did occur in the US, but far less than in most other countries.
Like International Law, which is now being shat on by Global North, it was a first attempt a something important. It has failed repeatedly, but I think it pointed in the direction of something positive.
Eeeegads. Schumer must be primaried. What an utter waste of human energy. His Israel-First is a repugnant stance and so is his using his position to scold Tucker Carlson. Arrogance and febrile self-importance on display. Democracy is falling through the floor boards and this is Schumer’s preoccupation. Urggggh
I don’t think we “have a semblance of democracy .” If we did, Congress would have listened to the 75% of Americans who oppose a war on Venezuela. and voted to prevent a Caribbean bloodbath.
Oh, but you do have such a semblance. Next time round – Trump permitting – you’ll be allowed to vote for escalating war with Russia instead. In the name of democracy, naturally.
In the EU, van der Leyen and Co. in the EU Commission have given themselves the right to sanction individuals who do not support the approved government narrative on things. Jacques Baud is a former Swiss intelligence analyst and NATO officer who has objectively analyzed the origins and conduct of the Ukrainian war. Unfortunately for Brussels, the facts revealed do not support but rather contradict the official narrative. He has now been sanctioned by the EU Commission losing access to his bank account, freedom of travel and help from friends. All of this is completely extra-judicial. There is no trial, court or appeal available just judgement by diktat. It is a mistake to take the freedoms of democracy, inalienable or not, for granted. There is always someone looking for an opportunity to steal them from you, if you, the people, allow it. Judge Napolitano’s warnings should be taken seriously.
So the EU has become a fascist dictatorship. This world is full of surprises.