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Government and the Freedom of Speech

by Andrew P. Napolitano
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“Congress shall make no law … abridging the freedom of speech.”
— First Amendment to the U.S. Constitution

Here is a pop quiz: If the states ratified an amendment to the Constitution repealing the First Amendment, would we still enjoy the freedom of speech? That depends on which value prevails: Are our rights only what lawmakers have written down, or are they personal attributes immune from government reach?

When James Madison was crafting the First Amendment, he insisted that the word “the” precede “freedom of speech” in order to manifest the Framers’ belief that the freedom of speech pre-existed the government. The First Amendment is a negative right. It doesn’t grant the freedom of speech. Rather, it restrains Congress from abridging a right that preexisted Congress.

So, what is a right, and where does it come from? A right is an indefeasible personal claim against the whole world. It does not require a government permission slip or any precondition or community consensus — only the ability to reason. It belongs to every human by virtue of our existence.

Privileges — like voting or driving an automobile — come from the government. Rights come from our humanity. Madison included the word “the” before “freedom of speech” in order to underscore its natural — not governmental — origins.

If you accept the existence of the natural law — a body of unchanging moral principles universally knowable by the exercise of reason — you accept that natural rights are ours to exercise whether the government is expressly prohibited from interfering with them or not.

So, under the natural law, murder would still be wrong and unlawful, even if the government were to permit itself and others to kill, as, of course, governments have done and continue to do.

Under the natural law, the answer to our pop quiz is that because the freedom of speech is a natural human right, it exists and is free from government interference whether the prohibition on interference is written down or not. Is natural law in the Constitution? Yes. The Ninth Amendment — Madison’s crown jewel — recognizes the existence of personal human rights too numerous to articulate, and it prohibits the government from denying or disparaging them.

The opposite of natural law is positivism. It teaches that law is only that which has been written down and ratified by the law giver. Under positivism, there is no natural law restraint upon the government; right and wrong are only and always whatever the government says they are. Under positivism, the answer to our pop quiz is that the freedom of speech would be fair game for the government to abridge.

The freedom of speech — to think as you wish, to say what you think, to offer what you say — is so normal, so human, so integral to the very existence of each of us, who cares what the government thinks of it?

Yet, today, the government thinks very little of the freedom of speech, even though all in government — from the president on down to a part-time government janitor — have sworn allegiance to the Constitution. Today, even though the First Amendment only verbally addresses Congress, the freedom of speech is protected from all government infringement — whether local, state or federal; whether legislative, executive or judicial.

President Woodrow Wilson, who infamously had Princeton University students arrested for reading the Declaration of Independence aloud outside draft offices in Trenton, New Jersey, claiming they might deter men from registering for the draft, argued that the First Amendment only restrained Congress, not the president. Today, such an argument is hogwash.

I offer this brief philosophical and historical discourse on the freedom of speech as background in order to address how this basic freedom is under attack by the government today. Today, the attacks on free speech are often silent and unseen, as the government attempts to do indirectly what the First Amendment unambiguously prohibits it from doing directly.

In a case involving Facebook now making its way through the federal courts in Texas, we have learned that the Biden administration pressured Facebook executives to suppress free speech about COVID-19 vaccines. The suppressed speech offered an alternative view to that which the government preferred. Rather than competing in the marketplace of ideas, the government chose to use its bully power to suppress the speech that it hated or feared or with which it disagreed.

This is government interference with speech because of its content. The Supreme Court has made it clear that, except for a state interest of the highest order — protecting the secrecy of troop movements in wartime, for example — the government is absolutely prohibited from interfering with speech because of its content.

The government claims it was just pointing out errors in scientific materials to Facebook. But that is not government’s job. The government does not enjoy the freedom of speech; only individuals do. The whole purpose of the First Amendment is to keep the government out of the business of speech so that individuals can decide for themselves what to say and hear.

Facebook is not the government. It is free to censor all it wants. But when it does so to get the government off its back, it thereby acquires an attribute of the government, and a court can impose First Amendment restrictions upon it.

Stated differently, if Facebook and the feds are in a mutually beneficial relationship, they will both lose. The feds will be restrained by a court — as the Biden administration was — for interfering with the content of speech, and Facebook will lose its ability to censor the content of its own bulletin boards.

Why do we elect persons to protect the Constitution who end up cutting holes in it? What value is the Constitution if the government can negate it? Whose speech will the government undermine next?

To learn more about Judge Andrew Napolitano, visit https://judgenap.com.


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