Whatever one thinks of Elon Musk, the government has no business exercising the levers of power against him based on his political speech, writes Andrew P. Napolitano.
Elon Musk discussing a Neuralink device during a live demonstration in 2020. (Steve Jurvetson, Wikimedia Commons, CC BY 2.0)
In 1791, when Congressman James Madison was drafting the first 10 amendments to the Constitution — which would become known as the Bill of Rights — he insisted that the most prominent amendment among them restrain the government from interfering with the freedom of speech.
After various versions of the First Amendment had been drafted and debated, the committee that he chaired settled on the iconic language: “Congress shall make no law … abridging the freedom of speech.”
Madison insisted upon referring to speech as “the” freedom of speech, not for linguistic or stylistic reasons, but to reflect its pre-political existence. Stated differently, according to Madison — who drafted the Constitution as well as the Bill of Rights — because the freedom of speech preexisted the government, it does not have its origins in government. The use of the article “the” reflects Madison’s and the Framers’ understanding of that preexistence.
The First Amendment also reflects the framers’ collective belief that the freedom of speech is a natural right. It has its origins in our human nature. We all yearn to speak free from restraint, and we all understand that we can use our speech to express any idea we want to express without fear or hesitation. Those yearnings and understandings are universal — hence, natural.
Restraints on Government
The framers wrote the First Amendment to codify negative rights. That is, the First Amendment recognizes the existence of the freedom of speech for every person, and it negates the ability and the power of Congress — and after the ratification of the 14th Amendment, of all governments — to infringe upon it. The First Amendment does not command Congress to grant the freedom of speech (it is not Congress’ to grant); rather, it commands that Congress shall not interfere with it.
The Bill of Rights guarantees negative rights. Their essence is not grants of liberty. Their essence is restraints on the government from interfering with preexisting liberty.
I offer this brief understanding of the freedom of speech in our constitutional government as an introduction to a discussion of the dangers of government exercising free speech. We know that all persons have the freedom of speech. But what about the government?
Does government have the freedom of speech?
That is not an academic question. The short answer to it is: Under the theory of the Declaration of Independence — that our rights come to us from the Creator and are inalienable — and consistent with Madison’s understanding of the Bill of Rights, the government has no freedom of speech.
Government only can exercise the powers we have given it. Nowhere in the Constitution did the states give such powers to the feds, and nowhere did the people give such powers to the states. We don’t elect government to identify ideas it loves or hates. We elect it to protect the expression of all ideas.
Stated differently, who cares what the government thinks?
California, SpaceX & Elon Musk
Last week, the California Coastal Commission — once notorious for taking land without just compensation — reminded us that in California, one needs to care.
The CCC denied the request of SpaceX for launching permission because members of the commission disagreed with the politics of SpaceX’s principal shareholder, Elon Musk. One commission member even stated that she voted against the launching request because Musk himself had tweeted “political falsehoods” about FEMA and climate issues.
This is sophistry. Under the First Amendment, there is no such thing as a false political idea.
First Amendment slab in Independence National Historic Park in Philadelphia. (Kyle Dickson, Flickr, CC BY-NC-SA 2.0)
Surely, the folks who work in government have free speech rights, and they are free to exercise them. However, they cannot commandeer the government and use it as an instrument to reward or punish speech. Why not? Because when the government speaks, it chills the rights of others to speak who disagree with it, and that chilling constitutes the very infringement that the First Amendment was written to prohibit.
Chilling occurs when the government makes it easier for some to speak freely or more difficult for others to do so. Government does that when it expresses favoritism or hatred in the marketplace of ideas.
Whatever one thinks of Musk, the government has no business exercising the levers of power against him based on his political speech.
Can government condemn McDonald’s as a health menace for selling fatty foods? Can it condemn pro-life groups as domestic terrorists for publicly attempting to dissuade young women from having abortions? Can it condemn young socialists as “enemies within” for demanding confiscation and redistribution of property? Can it condemn the free press as a public enemy when the press criticizes it?
The answer to all these hypotheticals (the last is not so hypothetical today) is: No.
The First Amendment was written to keep the government out of the marketplace of ideas. The whole purpose of the First Amendment is to encourage and foment open, wide, robust, unbridled — even caustic and hateful — speech about the government; speech without fear or favor from the government; speech without government interference; speech without government challenge or reward.
In the most liberal state in America — where free speech was once sacrosanct — it is now subject to official government disapproval. That is, until the courts do their job of protecting the free speech of an unpopular minority so that individuals can decide for themselves what to hear and believe, free from government interference.
In America, thanks to the First Amendment, no one should hesitate to express any opinion publicly for fear of incurring the wrath of the government. And no government can constitutionally punish or isolate any person or group because of their exercise of the freedom of speech.
Government officials not faithful to those first principles have violated their oaths to uphold the Constitution. Why do we repose constitutional principles for safekeeping into the hands of those who reject them? If unchecked, where will this take us?
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
DISTRIBUTED BY CREATORS.COM
The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Here we go again: please. The hypocrisy is unbearable: Using a parasite-oligarch as an example of challenging “the government” is pathetic. Dude has received BILLIONS in tax-breaks, subsidies, and fat govt. contracts. Ask Julian Assange about protecting free speech. Ask Scott Ritter, but an oligarch? WTF? You might as well slap us all in the face. It is insulting to the intelligence.
A true libertarian would not worship those who support one of the factions of The Bipartisan Consensus (the Rs and DT) who support The Genocide of Palestine, who support overthrowing foreign governments, with using OUR public resources for Israeli atrocities. etc. Gimme a freakin break already. Being “patriotic” does not mean giving our resources to Israel to blow up children. Caitlin Johnstone would kick Judge Nap’s proverbial ass in a debate about this, for example.
Newsflash: The richest Oligarch in the world doesn’t give a fk about OUR free speech, only his own. He has no problem accepting billions from the “government”. The “government” has been captured by the private oligarchy, but the judge is too high in his ivory tower to see it. He has no problem firing people or banning people from his monopoly platforms. The rank hypocrisy, just as bad as the Joyful Genocide KH crowd.
Like Medieval serfs, we are told to worship the neo-aristocracy and FOLLOW them like sheep. It’s a bizarre form of Collective Stockholm Syndrome. Fk that, we can think for ourselves and we don’t need sociopaths like The Oligarch to tell us what “free speech” is
Free speech? Elon’s buddy the DT, (just like the Ds) are fine with journalists (example: Shireen Abu Akleh ) being MURDERED in broad daylight. That’s what Elon considers free speech: “Do as you are told, or get your head blown off”. The Israelis are killing journalists by the hundred in a targeted campaign, yet Elon and Nap think that’s “free speech” Orwell roll over…
I want to take this to the next level.
Does the MSM have freedom of speech?
We don’t have a media to identify ideas its owners love or hate. We expect a media to share the expression of all ideas. If this is not the case—and it certainly is not—then the media does not inform but acts as a source of propaganda for particular agendas.
Your thoughts.
Legally, I suppose they do since corporate speech is currently treated the same as human speech (though corporations lack a corporeal body that can be thrown in jail or executed, so it’s not exactly the same).
But I disagree with how you define the media. For the first 150 years or so of this country, the media was MASSIVELY biased and made no claims otherwise. It was only after WWII that the expectation of impartiality became the norm. Well, that post-WWII norm was nice while it lasted, but we are trending back towards the yellow journalism of the 19th and early 20th century (and even to some degree to the political revolutionary media of the 18th century). There was no low that William Randolph Hearst and Joseph Pulitzer wouldn’t stoop to to increase their circulation, and ‘journalist’ founding fathers such as Ben Franklin and Thomas Paine felt no need to be ‘fair’ to both sides of the revolutionary argument. They literally lied us into a couple of wars in order to sell papers (Mexican-American war, Spanish-American war). Fox News and MSNBC are pikers compared to those two journalistic legends.
Madison originally thought a Bill of Rights unnecessary, but powerful regional oligarchs insisted on specific guarantees during the ratification process, wary of surrendering so much power to the new central government, lest its supposed commitment to “the general welfare” might infringe on their local privileges. The diminutive Virginia aristocrat made no secret of his fear of the common man, In Federalist No. 10, Madison argued that democracies were “spectacles of turbulence … incompatible with … the rights of property.” At the Constitutional Convention, Madison backed an upper Senate of elite property holders to check a coming “increase of population” certain to “increase the proportion of those who will labour under all the hardships of life, and secretly sigh for a more equal distribution of its blessings. According to the equal laws of suffrage, the power will slide into the hands of the former.” He concluded, “our government ought to secure the permanent interests of the country against innovation. Landholders ought to have a share in the government, to support these invaluable interests…They ought to be so constituted as to protect the minority of the opulent against the majority.” The liberty these men spoke of so eloquently in their time is not what we understand to be freedom today.
Health & safety ARE within the real of govt.
Care to show me where it says that in the constitution?
We have allowed executive branch agencies over the past 100 years or so to carve out a role in those areas, and they do good work when they limit their contributions to activities that directly affect those issues (food inspections, occupational safety standards, etc.), but trying to expand their remit to ‘unhealthy’ or ‘unsafe’ speech is not just a bridge too far, it’s 1000 bridges too far.
What a succinct, well-written exposition of our crucial First Amendment!! Should be in the curriculum of every middle school/high school civics class, but more importantly, required reading for every public official, especially any elected or appointed local, state or federal government official!!! Bravo, Judge Nap!
And this follower of Consortium News couldn’t be happier that you now contribute your expertise to CN.
For those unaware, Napolitano’s daily program, “Judging Freedom” is one of the best, with many of the best thinkers and commentators appearing on his program every week. Highly recommend it, joining the growing numbers of subscribers, now over 450,000.
Members of the same club promoting each other, are we?
The “free media” in the USA and the West now include the privately owned huge mega -influential electronic groups which many people rely on for news. It is surely no coincidence that information about world events is distributed by the vast majority of these outlets with exactly the same point of view (eg wonderful democratic Ukraine, poor victimized Israel) and only by searching internet can opposite views be found eg Judge Nap!!!
I have not had TV for decades, and from time to time read Le Figaro here in France just to keep up, and there is NO alternative encountered in articles on important issues. The EU is a case in point. President of European Commission Ursula von der Leyen with little opposition is able to push her plans for “democracy” against huge popular anger ignored by media reporting.
No comment on Elon as personally, I do not know the man. My beef is with a system that allows 75 million USD ‘donations’ to political parties. As Trump has recently indicated that he will have a governmental position for Musk, it very much seems that Elon has bought himself a political appointment.
How is this any different from the likes of Soros and ilk? Or AIPAC. Musk just became one the ‘donor class’ that actually runs the railroad. This is undemocratic. Or, at the very least unethical.
Too bad the Supremes decided that money is speech and corporations are people. Talk about turning reality on its head. The owning class has arrogated to itself the right to make these declarations about speech and what constitutes a living breathing human. They are at the center of the deterioration of our liberties. They are the government. Now what?
Interpretation of law takes into account the intentions of state legislatures and the US Congress. That’s why there are published records of debates and remarks for and against any legislation. I’ve read the early American Federalist and Anti-Federalist Papers; they’re revealing. A few items written into the Constitution are appalling–like that “3/5ths of all other Persons” compromise. But the reasoning behind THE right of free speech is that it is clearly considered a given and not something granted by government or its documents. The Bill of Rights re: speech is a constraint on governments, not on people’s expressions.
I doubt the judge would agree with me on the positive aspects of social programs like the New Deal. Or similar government backed efforts to enhance the common good. But that’s not the issue here. Rather it’s about whether or not in the name of protecting us from harm government officials are allowed to act as censors. Here I side with Judge Napolitano (and with the more leftist types at CN saying the same)–free speech is an absolute!
I don’t like the judge’s phrase “marketplace of ideas” as if thoughts were things belonging to the highest bidder. But I get his point. Political beliefs and actions should be talked about publicly, not dictated from above. We on the left strenuously oppose paternalistic plutocracy and warmongering. The right denigrates do-gooder liberalism as “the nanny state.” As if everyone, despite class or race, has the same opportunities, which is demonstrably false. However, many of us on the left also object to liberal de facto classism. As if the professional and administrative elites who dominate the D party know ever so much more than we peasant workers and therefore should decide what’s best for us. That’s oligarchy–and it is also an erosion of our rights.
It’s amazing how many people fail to grasp the concept of natural rights and the negative rights of government to infringe on them. What’s scary is that schools are failing to teach young people these concepts in civics classes (do they even still have civics classes anymore?). We have multiple generations of young people now who don’t even understand their own rights. They think the government grants them rights, and not the other way around. We the people grant rights to the government, and every human being has natural rights that no legitimate government shall infringe. If a government tries to take away your natural rights, it’s time for a new government and to water the tree of liberty with the blood of patriots and tyrants.
Elon Musk is heavily subsidized by taxpayer dollars. His SpaceX installation in Texas is appropriating land around it that is owned by other private citizens without their permission with the help of the Texas govt. It is polluting the land and water and not doing any remediation. Musk is a shameless corporate welfare queen, and he should not be denied because of what he says, but because of his irresponsible use of natural resources and profit-taking on the taxpayers backs. He uses X as a shield, as if he is a champion of free speech, all the while robbing the U.S. citizens he brags he is championing. He is a real piece of work.
In a ‘democracy’, the power of the nation is supposed to lie in the hands of the people. That’s what a democracy really is. Power to the people. In such a democracy, the government is how the people come together to act together. In such a democracy, people participate to get what they want from the government. In a democracy, the government is the institution that is there for the people to come together and act for what they want.
During my entire lifetime, the oligarchs have been pushing this alternate ‘libertarian’ notion. That all government is evil. That all government must be shrunk until it can be drowned in a bathtub. Then, there will be no democratic mechanism to restrain oligarchs from doing anything they want, and won’t that just be Great!. Ugh.
Are you in favor of democracy, or oligarchy? Do you want a government of the people, by the people, and for the people. Or do you want a government of the oligarchs, by the oligarchs and for the oligarchs? If you prefer President Lincoln’s poetry, then you have to give the people the power, through their democracy, to restrain oligarchs. When you say the government of the democracy can not restrain an oligarch, then you are no longer talking about democracy. The people no longer have the power.
Of course, this modern American government is not anything close to a democracy and only a system where oligarchs compete against each other. So, my answer to one oligarch complaining about other oligarchs in a already dirty fight comes from an old Clark Gable movie ….. “Frankly Scarlett, I don’t give a dang.”
The founders explicitly designed the American republic to NOT be a democracy, as they feared tyranny of the majority almost as much as a tyranny of the minority. They believed that a pure democracy is two wolves and a sheep deciding on what’s for dinner. So they created a constitution that favored the states over the federal government, and gave the federal government three branches of government with check-and-balances to keep any one branch from attaining dominance, and wrote the Constitution to LIMIT the government, not to empower it, and embraced the concept of natural rights to establish off-limits areas where the government could not tread.