When the feds claim that articulating views of the war in Ukraine from a Russian perspective is somehow criminal they ignore the core purpose of the First Amendment, writes Andrew P. Napolitano.
U.S. Department of Justice in Washington. (Ryan J. Reilly, Flickr, CC BY 2.0)
“Congress shall make no law … abridging
the freedom of speech, or of the press.”
—First Amendment to the U.S. Constitution
When James Madison agreed to be the scrivener at the Constitutional Convention during the summer of 1787, he could not have known that just four years later he’d be the chair of the House of Representatives committee drafting the Bill of Rights.
In doing so, he insisted that the word “the” precede the phrase “freedom of speech” in what was to become the First Amendment, so as to reflect the views of the Framers that the freedom of speech preexisted the government.
Madison believed that pre-political rights, which he enumerated in the Bill of Rights, are natural to our humanity. Madison knew that when he wrote, “Congress shall make no law … abridging the freedom of speech, or of the press,” he and the ratifiers meant no law. As direct and unambiguous as those words are — the Constitution as amended is the supreme law of the land — Congress and the courts have not always been faithful to them.
The first serious federal attack on free speech came in the Alien and Sedition Acts in 1798, which criminalized criticisms of the foreign policy of the federal government and the administration of President John Adams. The same generation — in some cases, the same human beings — that had ratified the First Amendment in 1791, a mere seven years later assaulted, defied and nullified it.
In response to the Alien and Sedition Acts, the two most prominent thinkers in America — Thomas Jefferson, who had written the Declaration of Independence, and Madison — secretly authored the Virginia and Kentucky resolutions, respectively. These state laws reflected the views of many ratifiers of the Constitution that the states that formed the federal government retained the power to correct it. All but one of the dreadful Alien and Sedition Acts were repealed by 1802.
During the War Between the States, President Abraham Lincoln arrested journalists and newspaper publishers in the North due to their harsh criticism of his government. He argued that the state of war gave him emergency powers to preserve the Union, which included evaluating and silencing the content of speech.
Shortly after his death, the Supreme Court profoundly rejected his argument and set free those whom he had arrested, ruling that the Constitution admits of no emergency powers and free speech exists during war as well as peacetime.
A student at George Mason University set up this sign in 2005 to raise awareness and discussion over free speech rights on campus. (dcJohn, Flickr, CC BY-NC 2.0)
At the height of the anti-immigrant hysteria whipped up by President Woodrow Wilson, Congress enacted the Espionage Act of 1917 [and the Sedition Act of 1918], which punished speech deemed harmful to America’s war efforts. Wilson was determined to win the First World War at the price of the suppression of ideas that he hated or feared.
Then, a series of Supreme Court decisions instructed that if the government’s principal purpose or effect is to suppress speech because of its content, the suppression is unconstitutional. These opinions harked back to Madison, who believed that the only moral and constitutional remedy for hateful or harmful or even seditious speech was not suppression and punishment but rather more speech.
A famous Chicago case put to rest the concept of freedom of speech versus public safety. The issue was the “heckler’s veto,” which takes place when audience members are so intentionally disruptive that they effectively prevent the speaker from speaking. Father Arthur Terminiello, a Roman Catholic priest who was an outspoken opponent of the Truman administration, gave an incendiary speech in a hall in Chicago, which the sponsors of the speech had rented for that purpose.
The speech delighted Terminiello’s supporters and infuriated his opponents. The opponents numbered about 1,000 people, and the supporters about 800. When it became apparent that violence might break out, the police ordered Terminiello to stop speaking and to leave the venue. When he disregarded their instructions, and the audience stormed and destroyed the podium, Terminiello was charged with and convicted of breach of the peace.
The Supreme Court reversed and held that the government cannot silence a speaker because it fears his words or the reaction of the audience. It also held that it is the duty of the government to protect speech, not to nullify or avoid it. In doing so, the court moved First Amendment jurisprudence significantly closer to where it is today — an absolute protection for public political speech.
In 1969, the court articulated that protection when it held unanimously that all innocuous speech is absolutely protected and all speech is innocuous when there is time for more speech to challenge it. With notable exceptions like the cases of Daniel Ellsberg, Julian Assange and Edward Snowden, and the Patriot Act of 2001, that attitude generally prevailed in government in America.
Until now.
Earlier this month, the Department of Justice secured indictments of Americans and Russians for advancing “Russian propaganda” in America. The feds claim that articulating views of the war in Ukraine from a Russian perspective and holding out those views to be fact are somehow criminal.
These are political prosecutions. The effect of words is measured by their ability to be accepted in the marketplace of ideas, not whether they offend the government. The core purpose of the First Amendment is to keep the government out of the business of speech. That purpose protects the most caustic, incendiary and hateful speech hurled at the government, and admits no exceptions or prosecutions for content.
We are at the cusp of dark days for free expression. The remedy is to exercise it — loudly, persistently and in the government’s face.
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.
The views expressed in this article may or may not reflect those of Consortium News.
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Interesting article scrutinising Britain’s version of the First Amendment:
hxxps://www.ukcolumn.org/article/britain-had-the-first-amendment-first
Dating back to the 1688 Bill of Rights:
hxxps://www.legislation.gov.uk/aep/WillandMarSess2/1/2
Indeed the US government was created to secure rights and has grown so corrupt that it actively seeks to destroy destroy them. Why do we tolerate the severe corruption in all branches of state and federal governments?
Because:
1. Most citizens are too young, uneducated, or inexperienced to see beyond simple MSM narratives;
2. Glimpsing the truth leaves most others feeling terrified and helpless, so they retreat to MSM narratives;
3. “The average man avoids truth as diligently as he avoids arson, regicide, and piracy on the high seas, and for the same reasons: it is dangerous, no good can come of it, and it doesn’t pay.” (H.L. Mencken)
Our amoral unregulated market economy elevates its lowest scammers to top government offices, with bought-off careerists below them. The USG has grown rotted and ruined by corruption for more than a century: all three branches of the federal government and the mass media are now corrupted.
The solutions are:
1. Constitutional amendments prohibiting election or mass media funding beyond limited individual donations;
2. Public and mass media education to identify and avoid dangerous social dependency upon tribal groups, which creates fear of leaders and allow the tyrant personality to demand power as their defender in aggressive wars;
3. One proposed reform is the CongressOfDebate (dotcom), which will conduct balanced text debates and provide summaries commented by all sides. Its administration may be a model for an incorruptible democracy of the future.
He’s right, it is a brief history, very brief – only a few decades.
Free speech came, stayed for a few minutes, and went.
Indeed the US government was created to secure rights and has grown so corrupt that it actively seeks to destroy them. Why do we tolerate the severe corruption in all branches of state and federal governments?
Because:
1. Most citizens are too young, uneducated, or inexperienced to see beyond simple MSM narratives;
2. Glimpsing the truth leaves most others feeling terrified and helpless, so they retreat to MSM narratives;
3. “The average man avoids truth as diligently as he avoids arson, regicide, and piracy on the high seas, and for the same reasons: it is dangerous, no good can come of it, and it doesn’t pay.” (H.L. Mencken)
Our amoral unregulated market economy elevates its lowest scammers to top government offices, with bought-off careerists below them. The USG has grown rotted and ruined by corruption for more than a century: all three branches of the federal government and the mass media are now corrupted.
The solutions are:
1. Constitutional amendments prohibiting election or mass media funding beyond limited individual donations;
2. Public and mass media education to identify and avoid dangerous social dependency upon tribal groups, which creates fear of leaders and allow the tyrant personality to demand power as their defender in aggressive wars;
3. One proposed reform is the CongressOfDebate (dotcom), which will conduct balanced text debates and provide summaries commented by all sides. Its administration may be a model for an incorruptible democracy of the future.
…thank you good sir; from those of us CENSORED….
The sign about ‘free speech zone’ makes me ask ….
Did the national conventions this year have the traditional ‘free speech zones?’ These are, or were when I was making it to the protests outside of conventions, cages set up in the far corner of a parking lot. High, chain-link fence linked together to form a cage. To enter, you had to run a police checkpoint to enter the cage. The cage was then surrounded by other police. Thus, in this free speech zone, and only there, you had a right to free speech … in a cage, surrounded by police officers.
Memories of America inspired by the image.
Of course, in America, the above question has to be asked because it is highly unlikely that the The Free Speech Zone will be televised.
——-
A word of advice. If there is a protest going on anywhere near you, you should go and check it out. You don’t have to participate. You don’t have to be a protestor or a counter-protestor. Just go and observe. What you will learn is that what you see and hear is very different from any TV reports on the protest you might see later. Go out and see what reality looks like.
Over time, the British won the American Revolution. It just took them longer than they had originally planned.
A reminder. The Bill of Rights was a Deal-Breaker for the US Constitution. The American people had rejected the Constitution without a Bill of Rights. The whole structure of a President and a Congress was deemed to be too much centralized power with too little protections for Americans. Under the Rules of the nation at the time, nine states needed to pass the new changes to make them take effect. Only eight voted yes. The US Constitution was not ratified.
So, they added the Bill of Rights to get it passed and approved by the American people. They had to promise that certain rights would be protected even by this big, scary central government that the legislatures had just rejected. That was the deal to get the whole thing, the President, the Senate, the Executive Branch and all that came later …. approved.
The Bill of Rights can be looked at as a Deal-Breaker. The Constitution was not approved without its addition. The American people rejected this government, without a Bill of Rights.
If I may put below one of the first poems I ever wrote many a year ago, perhaps 1963:
I read somewhere
That people have a right
To speak and assemble and petition.
I think I saw it written
In the back of a text
Which has been discontinued.
Thank you. It seems that the first amendment is intended as the antidote to the tendency for government to become an enemy of the people that it serves. That is the case of our “liberal” Democratic led government now which seeks only to preserve its own power.
I would appreciate reading your take on the Citizens VS FEC ruling that money is speech. Which by the way arose form lawsuits by both republican and democrat party members resulting in both parties benefiting from a ruling which unleashed the literal unlimited funding by dark money of political campaigns.
You cannot claim that the SCOTUS acted in anything other than an activist manner in distorting the English language buy taking liberties, pun intended, mandating by law the meaning of the words money, speech and free.
Secondly I would you opinion on whether or not the Orange turd does not consider himself the beneficiary of the ruling from both his position of being a billionaire and his bloviating constant stream of falderol from his bully pulpit.
In his case the proof is in the pudding he has the money to make unlimited legal challenges, as he has been want to do of late. Besides his continual stream of B.S.
It is both parties brother. Neither are worth a tinkers damn to the majority of Americans.
So with all due respect I see your statement here defined, I feel by your second sentence, as being very much your own opinion, which conveniently excuses any such transgression as you accuse your “liberal Democratic led government of. In my opinion the truth more is more accurately reflected when both parties share a difference with absolutely no distinction.
Figure it out my friend, both parties have for a very long time behaved in a matter that exposed their desire to rule us rather than govern us. The biggest difference currently, in my opinion is the orange turd cannot seem to perform the task of executing effectively good personal hygiene.
The days of engaging in partisan politics are over, lead, follow or come up with better StuFF! For instance a third party.
I demand my right to hear Vladimir Putin! He is MUCH more honest than Joe Biden. And Sergey Lavrov is MUCH more honest than that lying war pusher Antony Blinken. Our country is occupied by organized crime.
(And we know who they are.)
Hear hear! And thanks, Judge.
Wouldn’t the plethora of new ‘hate speech’ laws also violate the First Amendment? I’ve never managed to figure out how they stay on the books.
A legislature can pass any law it wants, even blatantly unconstitutional laws. The road to challenge a law is deliberately rocky and thorny, so much so that many such laws go unchallenged. Even if with great expense the law is overturned, the legislature can pass another similar law with the same effect.
All American Judges are political animals. At every level, the judges are appointed by elected politicians. And both parties like to put ‘their people’ onto the bench.
Descriptions of people who are much less likely to become a judge.
— someone who is non-political and does not get involved in politics or political parties. Its hard to get appointed by a politician when the politician does not know who you are,
— defense attorneys
Judges are almost always former prosecutors with political connections. Not 100%, but that is a very common resume. And then, every judge once they get the job, wants a promotion. So, they are thinking ahead about how ruling for the 1st Amendment against censorship will look in future Senate hearings to get on the Appeals Court when the Senate routinely expresses its desires for greater and greater censorship.
That’s how these laws stay on the books.
Judge Nap, your conversion from the pugnacious, America-First, Fox world view to a staunch anti-war party perspective on your own show is greatly appreciated. Your ever reliable support of the First Amendment and other key freedoms enumerated in the Bill of Rights has always impressed me as the acts of a true American with a genuine understanding of the role this country is meant to play on the greater world stage. We are entitled to lead only by example, never through bully-boy hegemony. More people need to “get” this and act accordingly.
Americas warmonger leadership is NOT the example required by the world!
Why can’t people just shut up and do as they’re told? Then there won’t be no problems.