The feds apparently believe that the First Amendment has some holes in it for the speech that the government hates and fears, writes Andrew P. Napolitano.
President Joe Biden looks on as Attorney General Merrick Garland delivers remarks at the White House in 2022. (White House/ Adam Schultz)
In 1966, two famous Russian literary dissidents, Yuli Daniel and Andrei Sinyavsky, were tried and convicted on charges of disseminating propaganda against the Soviet state.
The two were authors and humorists who published satire abroad that mocked Soviet leaders for failure to comply with the Soviet Constitution of 1936, which guaranteed the freedom of speech.
Their convictions sparked international outrage. Former U.S. Supreme Court associate justice, and then America’s U.N. ambassador, Arthur Goldberg called the charges and the trial “an outrageous attempt to give the form of legality to the suppression of a basic human right.”
When a secret transcript of the trial was circulated in the West, it became clear that Daniel and Sinyavsky were convicted of using words and expressing ideas contrary to what Soviet leaders wanted. They were sentenced to five and seven years, respectively, of hard labor in Soviet prison camps.
Last week, the U.S. Department of Political Justice took a page from the Soviets and charged Americans and Russians with disseminating anti-Biden administration propaganda in Russia and here in the U.S. What ever happened to the freedom of speech?
Here is the backstory.
The Framers who crafted the Constitution and the Bill of Rights, both under the leadership and the pen of James Madison, were the same generation that revolted violently against King George III and Parliament and won the American Revolution.
The revolution was more than just six years of war in the colonies. It was a radical change in the minds of men — elites like Thomas Jefferson and Madison, as well as farmers and laborers generally untutored in political philosophy.
Untutored they may have been, but they knew they wanted to be able to speak their minds, associate and worship as they pleased, defend themselves, and be left alone by the government. The key to all this was the freedom of speech. Speech was then, as it is today, the most essential freedom.
The late Harvard Professor Bernard Bailyn read and analyzed all the extant speeches, sermons, lectures, editorials and pamphlets that he could find from the revolutionary period and concluded that in 1776 only about one-third of the colonists favored a violent separation from England. By the war’s end in 1781, around two-thirds welcomed independence.
Independence — From England & Government
Portrait of James Madison by John Vanderlyn. (White House Historical Association, Public domain, Wikimedia Commons)
But independence was bilateral. It meant not just independence from England but independence from the new government here as well.
In order to assure independence from the federal government, the colonies ratified the Constitution. Its purpose was to establish a limited central government.
After the Constitution was ratified and the federal government was established, five colonies threatened to secede from it unless the Constitution was amended to include absolute prohibitions on the government from interfering with natural individual rights.
During the drafting of the Bill of Rights, Madison, who chaired the House of Representatives committee that did the drafting, insisted that the word “the” precede the phrase “freedom of speech, or of the press” in order to manifest to the ratifiers and to posterity the Framers’ collective understanding of the origin of these rights.
That understanding was the belief that expressive rights are natural to all persons, no matter where they were born, and natural rights are, as Jefferson had written in the Declaration of Independence, inalienable.
Stated differently, Madison and his colleagues gave us a Constitution and a Bill of Rights that on their face recognized the pre-political existence of the freedom of speech and of the press in all persons and guaranteed that the Congress — by which they meant the government — could not and would not abridge them.
Until now.
“Free Speech * Conditions Apply” by Fukt. (wiredforlego, Flickr, CC BY-NC 2.0)
In the past two weeks, the feds have secured indictments against two Americans living in Russia who are also Russian citizens working for a Russian television network that expressed political views — the feds call this propaganda — contrary to the views of the Biden administration.
The same feds secured an indictment against Americans and Canadians for funneling pro-Russian ideas to the American public through social media influencers. The feds, who call the words being used by their targets “disinformation,” apparently believe that the First Amendment has some holes in it for the speech that the government hates and fears.
That belief is profoundly erroneous.
The whole purpose of the First Amendment is to keep the government out of the business of evaluating the content of speech. The strength of an idea is its acceptance in the public marketplace of ideas not in the minds of government. This is political speech that is critical of government policies — that would be the very speech in which you and I and millions of Americans engage every day.
The speech we love to hear needs no protection because we welcome it. But the speech that challenges; irritates; expresses alternative views; exposes the government’s lies, cheats and killings — even harsh, caustic, hateful speech — is the very speech that the First Amendment was written to protect.
The United States has not declared war on Russia. Under international law, there is no legal basis for such a declaration. The U.S., however, which supplies weapons for its proxy Ukraine to attack Russia, is far more a threat to Russia than Russia is to the U.S. But you’d never know that by listening to the government. Now the government doesn’t even want you to hear speech that contradicts its narrative.
In reading about the Soviet show trial of Daniel and Sinyavsky and the recent indictments of Americans and others for expressing so-called Russian propaganda, my stomach turned. The federal government has become what it once condemned.
Just like the Soviets in 1966, it mocks free speech, it assaults basic human rights, it evades the Constitution it is commanded to uphold and now it punishes those who dare to disagree. This may bring it to the same untimely end as the Soviet Union it now emulates.
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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US government’s attack on free speech is the clearest sign and it’s clearest admission that the US has lost.
“Free Speech & the Department of Political Justice,” by Andrew P. Napolitano, (fmr) Judge, Superior Court of New Jersey, Sr. Judicial Analyst @ FOX (the most watched News Network, ever), Host of “Judging Freedom, “ Podcast; AND, ROCKS intelligent, grounded, brillant, outstanding “Guests.” In sum, imo, Judge Napolitano “Serves It Up!” Bravissimo!!! TY.
Imo, Everyday’s, $pecial, “Propaganda.” What, tickles your fancy, “pan-fried” or “slow-boiled?”
“The position that the U.S. is taking is a very dangerous one. The position the U.S. is taking is that they have jurisdiction all over the world and can pursue criminal charges against any journalist anywhere on the planet, whether they’re a U.S. citizen or not.”
…. “What we fear in the night comes to call in the day, anyway; AND, we all get burned!!!” Adam Duritz/Counting Crows, “August & Everything, After.”
[BUT], “But if they’re not a U.S. citizen, not only can the U.S. pursue charges against them but that person has no defense under the First Amendment.”
……..“The US Government says the Australian endangered lives when his whistleblowing organisation WikiLeaks published leaked documents in 2010 and 2011 related to the Iraq and Afghanistan wars.”
“It remains to be seen whether a U.S. court would accept that position, but that certainly is the position that the government is taking.” BARRY POLLACK Julian Assange’s U.S., lawyer, forever, literally, YEARS.
BARRY POLLACK’s “been part of [Julian’s] legal team for a number of years. Julian was already in the [Ecuador] embassy when Pollack first started representing him;” AND, “for a number of years prior to the criminal charges or the extradition request having been made,” to defend JULIAN ASSANGE, if; and, when, he is required to face those charges.”
….. “An Interview With Barry Pollack, Julian Assange’s US Lawyer” @ hxxps://thedissenter.org/an-interview-with-barry-pollack-julian/
Fourteen (14)+ YEARS, later, CONSORTIUM NEWS + the “Universe,” paved Julian Assange’s path to “Living Free,’ of AUKUS, i.e., ON, MONDAY, JUNE 24, 2024, before the cocked crowed in the morning, Julian Assange, w/his Defense Team, “JUSTICE FOR JULIAN,” booked it outta HM Belmarsh Prison! Saved. Protected. Rescued.
AND, w/the exception of Australia, “Mums da Word!!!” NOT a f/peep outta AUKUS’ “Chicken Hawks,” Biden-Harris, Trump-Vance, Harris-Walz, Blinken, Sullivan, Kirby, Austin, Garland, Myorkas, et al., about Julian Assange, et al.
Concluding, “Love your country, but never trust its government.” Robert A. Heinlein.
…. “Free As a Bird,” Mr. Fish & Chris Hedges’, “You Saved Julian Assange,” @ hxxps://consortiumnews.com/2024/06/26/chris-hedges-you-saved-julian-assange/ ….
TY, Judge Napolitano, CN, et al., “Keep It Lit!”
“…something something most progressive president ever…”
-Bernie Sanders
Alastair Crooke lays out a strong and enjoyable analysis suitable as companion piece to the Judge’s remarks here. (“Enabling a Brutus to Slay the Elon Musk Caesar”)
Essentially, World Elites are indeed now imitating the Soviet Union using the tool “disinformation” to attack “propaganda” they don’t like, or what does not suit their political and financial objectives. Not only freedom of speech but, in the US, the Constitution itself are being questioned as suitable to Elite interests.
hxxps://www.unz.com/article/enabling-a-brutus-to-slay-the-elon-musk-caesar/
Just a small detail.
“That understanding was the belief that expressive rights are natural to all persons, no matter where they were born, and natural rights are, as Jefferson had written in the Declaration of Independence, inalienable.”
I think Jefferson meant “all men” and not “all persons.” Women had no political rights. Also Jefferson owned slaves, and what natural rights did these slaves have? Maybe women and slaves were not persons?
Thank you judge Napolitano and CN, for this analysis. The US DOJ is indeed profoundly corrupt and actively subverts the US Constitution, with the full approval of the maximally corrupt US judiciary.
This is well proven by my case in the DC District in which I proved that Florida Republican politicians had stolen about $120 million in conservation funds, and the FBI, DOJ, and Homeland Security refused to investigate when given full evidence and legal argument many times over many years, even while they investigated a Democratic politician there for one-thousandth of that amount. DOJ made the grotesquely unconstitutional claim that any government agency can at their discretion engage in organized crime for a political party with full immunity, which has never been true, and all DC judges accepted that obviously rotten perjury of law, to make it a precedent.
US officials are a very primitive tribe, engaged in drunken dances of contortions around a midnight bonfire of the laws, and have no concern for law beyond maintaining appearances even while taunting “citizens” that they have no rights. That is the result of an unregulated market economy, which elevates tyrant personalities to control mass media and political parties: democracy was replaced by gangsterism and internal propaganda.
The Department of Justice in this instance opposes free speech because they’ve determined that it undermines U.S. government propaganda.
Yer Honor! I find this article very interesting. The timing even more so. Call it an serendipity.
You might want to have some of.your staff or yourself read the to a comment I left earlier this afternoon which contained my observations most recently of Caitlin Johnstone’s The Trump party VS the Cheney party.
Hell, if nothing else you might be very amused with some of it. That is of course if it makes the cut.
“In 2020 they told me that if I voted for Donald Trump the USA would go fascist. They were right. I voted for Trump and the USA went fascist.”
Pat I have a question for you. But first!
Have you read the Sept 10 piece by Caitlin Johnstone Trump VS Cheney ? I left a reply there to a comment by Carl Zaisser. The entire point of which was to point out that the U.S. government on my opinion has moving to the right steadily since since the Eisenhower administration.
Most of this entire time the U.S.has become more and more of a “wars forever country”. Again on my opinion.
Korea which the national intelligence community entirely missed, Vietnam which the U.S. military and intelligence community lied constantly about.
I wonder if you know your American history enough to see what it is I’m trying to communicate. I’m not trying to be super critical but accurate context is is super critical.
The U.S.has been drifting to the right of center with it’s politics ever since. Read my reply I’m critical of the duopoly that has existed since JFK died. I can make an effort to explain it to you but I cannot understand it for you. You must embrace the true nature of U.S. history since the end of WWII.
We have been headed toward fascism ever since Johnson.
Do you agree that Trump would not have been any better and very possible worse?
Ha! Funny and accurate. The Dems and the billionaires in Silicon Valley did an end run ’round democracy by exalting Harris and terminating Biden’s presidency. No primaries, no votes, nothing. And they have the gall to accuse Trump of wanting to destroy our nonexistent democracy.
With all due respect Tim, Trump is hardly the answer.
To be honest the man is, if nothing else, a total embarrassment to himself, but then I see many billionaires today who may be smarter than him, even more wealthy than him but still lacking in the character I feel is needed to be president. It is definitely a thing among too many of them.
I am very curious though, what the hell is so funny about the current situation we find ourselves in.
I pretty much figured when the Dem’s abdicated their responsibility to “We the People” to work toward a better country, see Hilary’s atttempt, . Obvious to everyone they failed us citizens when they pulled this Joey Biden bull shit.
I mean for sake of the country I was thinking after the pitiful showing of the Queen of Chaos and her failed attempt to bully her way to the presidency more of “We the People would demand better. However Americans, far too many, are brain dead.
USSA
One aspect of the current crackdown on speech is the drivers of US foreign policy happen to be Wall Street and their mercenary army the CIA. The intelligence agencies were caught red handed via the Twitter Files, censoring speech on Twitter. Our foreign policy is about propping up the rapacious oligarchy that owns our government and press. So blame the government. But don’t forget to blame the real protagonists the government obeys.
The problem is, the 1st amendment says ”CONGRESS shall make no laws prohibiting …” That is not who is restricting free speech today. It is semi-independent factions of the executive branch, and private business entities. The US Supreme Court needs to rule specifically that the first amendment applies to these entities as well.
I’m 100% with you Sir. Did you read my comment left at Caitlin Johnstone’s Sept 10 Trump party VS Cheney party.
I’m pretty sure you get would get it. In my opinion the topic you mention is critical to righting the ‘ship of State”.
The SCOTUS has went rogue at this point in time in my humble opinion! They have absolutely No mandate to be activist, but have been ever since the January 21, 2010 ruling in the Citizens United VS the FEC.
You may be surprised to learn that this case stemmed from the all things the 2002 bipartisan Campaign Reform Act commonly known as the McCain-Feingold Act or BCRA. Justice John Paul Stevens argued in protest “the courts decision represented a rejection of the common sense of the American People. And I could not agree more.
The forgoing article reflects on the autocratic legacy of the Clinton-Obama-Biden-Harris administrations (Biden obviously being no longer in charge, if he ever was. Something for real liberals and progressives to consider this November, remembering that notwithstanding the efforts of the anti-Democratic Party, Jill Stein and Cornell West, as well as others are presidential candidates.
…”The whole purpose of the First Amendment is to keep the government out of the business of evaluating the content of speech. The strength of an idea is its acceptance in the public marketplace of ideas not in the minds of government.” One important word in these two sentenes–IDEA…It is political speech (ideas) that is supposed to be protected, but what has taken place is that only commercial speech is protected, commercial speech being speech which promotes the exchange of money–advertising–including, IMO, political advertising which these days rarely conveys ideas, but always asks for money. It was the US Supreme Court in Citizens United that declared that money IS speech, an absurdity given that it is undeniable that money captures, corrupts, controls, and destroys idea-speech. Today, the speech that desparately needs to be regulated, commercial speech, goes unregulated. Lawyers, who used to be prohibited from advertising won a court case right-to-advertise by asserting that prohibiting advertising violated the free speech clause of the First Amendment. Ditto for Big Medicine and Big Pharma all of which is commercial speech. Ralph Nader lobbied into law “truth in advertising” which today is a joke, IF it still even exists. Free Speech has been turned on its head, never more so than in recent months and days, as people are charged with crimes and imprisoned and forced into exile for speaking out about ideas.
“
Separation of speech into categories reduces its protection. There is no “commercial” speech, political speech, or other category … it’s all speech and it should all be free. This is one of the wedges commonly used by govt types to begin speech regulation … all for our own good, naturally.
Truth in advertising is a branch of contract law: you promised something you did not deliver. It’s not an issue of speech but a far lesser one of not meeting contract agreements.
There were “laborers” at the US Constitutional Convention? Really? Honest to Gawd Workers? The people who hoed the fields or fed the fires or cut down the forests or unloaded the ships? Really?
The people who were selected as Delegates to the US Constitutional Convention were of course the elites of each state and were known to the State Legislatures who appointed them. These of course represented the elites, and the economic interests of the various states.
On a site called “Teaching American History”, I found a page listed the Economic Interests of the Delegates who wrote our Constitution in the secret session that they insisted upon. Delegates were assigned to different groups, some more than one, and the totals are as follows:
1) Public Security Interests: 40 Delegates,
2) Lending and Investments: 24 Delegates.
3) Mercantile, Manufacturing, and Shipping: 11 Delegates
4) Planters: 15 Delegates
5) Real Estate and Land Speculation: 14 Delegates
As I mentioned, Delegates can be in more than one category. George Washington is in 4 of the 5 above groups, missing only on Manufacturing. But, I don’t see Laborers on the list. Given that one needed connections in the State House to become a Delegate, it does not seem likely that too many workers made the cut. And I went looking to see if I was wrong, and this does not seem to say that I was.
Another American myth … that the US Constitution was written by Laborers. However, it is true that by and large that only property owners got to vote on the Legislatures that could accept the Constitution. These of course rejected the Constitution, at least until the Bill of Rights was added to it to at least partially fix it.
Some general stats … of the 55 Delegates, half went to University. 25 had served in the Continental Congress during the war, and 40 had served in the Confederation Congress after the war. From the page on ‘the Delegates’, I don’t see any mention of a Laborer, not even as an example to show how democratic the group was, nor even as an exception to the rule.
hxxps://teachingamericanhistory.org/resource/the-constitutional-convention/delegates/occupations/
I was taught here for all my schooling, and never once did I hear anything about “laborers” being in on the drafting of the Constitution.
Thank you, Judge Napolitano, and thanks also for the excellent youtube podcast, “Judging Freedom.”
Just an observation: The attorney general Merrick Garland who is carrying out this assault on the freedom of speech at the behest of the Biden administration is the same Merrick Garland that Obama wanted to install on the Supreme Court in the year before his term ended. I’m glad now that he didn’t make it.
Ditto. Horrid human being as is the woman who doesn’t know what she is.
Yes, and Obama certainly knew about Garland’s right wing proclivity. That’s why he picked him.
Perfectly stated, and should be in every classroom, and, as important, in the hands of every member of Congress and of the Supreme Court. Thank you, Judge, for your on-going work and for bringing intelligent guests on your program.
I wish you’d write or talk about the omission of RFK, Jr and Jill Stein, brilliant debaters (unlike Harris and Trump) in the presidential debates.
The freedom to express your views publicly is essential in maintaining any kind of intellectual and social freedom, no matter how offensive the words my temporaily be. The actual meaning of words changes dramatically almost daily, therefore are somewhat meaningless except that these words reflect the views of the moment and are often even generational, but with the advance knowledgte that these meanings ultimately change as time and social and economic conditions change. However, the right to speak freely is of paramont importance regardless of when they are spoken. That’s how freedom thrives in all its manifestations.
Yes, “free speech” is mocked openly by the gov., and the corporate oligarchy as well. The MassMedia/BigTech Cartel/Oligopoly will censor you, demonetize you, and try to blacklist you. It is like McCarthy purges all over again.
Chris Hedges is a prefect example of what happens to journalists who don’t go along with the program (and Shireen Abu Akleh is another example) Free Press? Free Speech? First Amendment? Yeah right. Free speech for the oligarchy, no free speech for us. SCOTUS says that the billionaire oligarchs can flood the electro-magnetic spectrum with lies and propaganda, and legally bribe politicians because money is “political speech”. The “Supreme Court” might as well say that the first Amendment no longer applies and burn a copy of it in front of the building. That would be too honest though.
If you are a student or an academic at a college or university, try speaking out against Israeli genocide and using our public resources to arm, fund and enable the genocide, even at a private school. It’s not just “the government” that censors free speech, it it the private BigTech/MassMediaCartel, and large corporate employers as well. If you think you have “free speech” try saying something at your workplace or to your boss about US imperialism, Israeli Genocide, or disputing anti-Russia or China propaganda, or the rampant institutional corruption and see what happens.
The freedom of speech and of the press is so clear but the governmental monsters have added except for disinformation. When I went to law school in 1962 I could never imagine this. BUT ….
Nor I, who graduated in 1981. My Constitutional Law instructor would not have been able to even recognize this monstrosity of a nation that attempts to pass for a liberal democracy. Far too many are completely oblivious of what has been going on under both wings of the mainstream party.
and liberals cheer, as natural rights to speech, religion, and assembly are trodden under the expediency of the blue team at all costs …
btw, are we all as glad as I am that the fantastic constitutional scholar Garland was prevented from being placed on the SC? As it turns out, Gorsuch is likely to be a FAR bigger defender of civil rights than this cretin would have been.
We live in an era of denial.
What’s true about our time is those who claim to protect human rights will keep on shooting their feet since they refuse to see the need to do justice.
Realistically speaking, there are indeed constraints on free speech, i.e. what a person may say. The most illustrative of this is yelling ‘fire’ in a packed theatre where there is no peril. You will be charged for that. I believe that is proper. Speech that pisses off government does NOT fit this model though.
Political speech should be encouraged. As the author alludes, let the general public decide whether something said stands or falls on it’s own merits.
The USA is very much akin – in this regard – to the former USSR.
Yes, while I align with former Judge Napolitano’s comments in context, I find his language needs to be more circumscribed to cover other contexts. He defends, in the context of opposition to government actions “even harsh, caustic, hateful speech.”
John Stuart Mill, one of the great defenders of free speech, allowed the exception of incitement to violence under circumstances where a mob was ready to engage in murder. Oliver Wendell Holmes, Jr. gave us the formula “clear and present danger,” as something that could limit free speech.
Mass media bring other problems. John Milton, another great free speech defender envisaged truth emerging from a free and open encounter. But what about an encounter which may be “free and open” only disproportionately to the wealthy?
All of this is not meant to derogate from Napolitano’s comments, which are contextually appropriate.
I really wish more people would realize that the fire-in-a-theater rhetoric was employed in the greatest attack on the 1st Amendment of the 20th century: using the Espionage Act to imprison critics of the draft and political opponents. Fire-in-a-theater was used EXACTLY to argue that speech that pisses off the government should be censored. Here’s a great article on this subject:
hxxps://web.archive.org/web/20240116140756/https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/
Napolitano is wrong in his assertion that this the first time the US has stepped this far into despotic censorship.
You took the words out of my mouth! The author seems strangely ignorant of American history.
Maybe he could start by reading about Eugene Debs, who was thrown into prison for his antiwar speeches. He died after his release, imprisonment having destroyed his health. At the time when Debs was under attack, the newly born Soviet Union was sustaining an invasion from the US and other freedom loving armies of “the West”. (Does that remind you of anything happening today?) If Stalin a decade later snuffed out the beacon of freedom, he was only imitating what the vindictive Woodrow Wilson had done to Debs, and what the US rulers would do again . . . and again . . . and again.