“I do not agree with a word that you say, but I will defend to the death your right to say it.”
— Voltaire (1694-1778)
Holy Week was not a good week for personal liberty as governments throughout the United States engaged in direct and subtle attacks on free speech.
The freedom of speech is unique in American history and ethos. It was the linchpin of the secession of the 13 colonies from Great Britain. It is often claimed at the most distinguishing characteristic between life in the United States and all other countries. It has suffered and survived grievous government assaults from the Alien and Sedition Acts of the 1790s to the suspension of habeas corpus during the War Between the States to the Red Scares in the last century to the monitoring of social media today.
This great freedom continuously pushes back at the governments that assault it. The freedom of speech is a value and metaphor for the unique, indefeasible, permanent, natural right to think as you wish, to say what you think, to read what you please, to publish what you say, and to do all this without a government permission slip and without fear of government reprisal.
The freedom of speech is both a natural and a constitutional right. It is expressly guaranteed in the First Amendment. That amendment commands not that Congress grant the freedom of speech but that Congress is prohibited from infringing upon it.
From and after the ratification of the 14th Amendment, federal and state courts have applied the prohibition on congressional infringement to all governments — federal, state and local; and to all branches of those governments — legislative, executive and judicial.
When teaching law students the values of the Bill of Rights, I often began with a curious hypothetical. If the states ratified a constitutional amendment repealing the First Amendment, would the freedom of speech still exist in America? The short answer to that question is: Yes. The longer answer reflects that speech is not just a constitutional right. Because free speech comes from our humanity — a gift of our Creator — we have and can exercise this right whether it is reduced to writing and recognized by the government or not.
Moreover, every person employed by any government anywhere in the United States takes an oath of allegiance to the Constitution, which includes all of its amendments. You’d never know that from events during the past week.
Here is the backstory.
Last week, the State of Texas enacted a law requiring all state schools — from pre-K to graduate schools — to punish speech deemed by officials to be antisemitic. Also last week, the State of South Dakota did the same. The governors of both states proclaimed their desire to protect certain people from the use of words manifesting ideologies based on “intolerance.”
In Oklahoma last week, three FBI agents visited the home of a local activist to talk to her about her social media posts. She taped her encounter with them. When the agents revealed that they lacked a warrant, she asked them to leave. Good for her! She could have called the local police and reported three strangers with guns harassing her on her front porch! Her social media posts are none of the government’s business.
The Texas and South Dakota statutes also suffer from their publicly stated efforts to protect only certain discreet groups. That violates the Equal Protection Clause of the 14th Amendment, which expressly prohibits the states from isolating groups for special protection or for less protection.
Also last week, a justice of the New York State Supreme Court — that’s the trial court in New York — entered a gag order prohibiting former President Donald Trump from criticizing the daughter of the justice. The daughter is a fundraiser for Democratic clients who use the prosecution of the former president in their fundraising solicitations. The daughter has voluntarily entered the marketplace of ideas by her professional work, much of which is aimed at the former president.
Put aside the unseemly appearance of a trial judge signing an order to insulate his own daughter from political criticism by a public figure whom the daughter and her clients publicly criticize; these gag orders are direct assaults on the freedom of speech.
I recognize that I am an outlier here, as most judges who have tried high-profile criminal cases favor the limited use of gag orders to insulate jurors and protect witnesses from influences outside the courtroom.
But the fact remains that gag orders are a direct government assault on the freedom of speech. In Trump’s case, it is exquisitely unfair for the judge’s daughter to use the criminal prosecution of Trump as a fundraising tool while her father — the judge in Trump’s criminal case — has silenced Trump himself from commenting publicly about this.
What ever happened to the freedom of speech?
Each of these events is profoundly unconstitutional as they all amount to the government getting involved in the content of speech. The Supreme Court has ruled consistently since the 1960s that the whole purpose of the First Amendment is to keep the government out of the business of speech. Government may not favor or disfavor speech; and it may not evaluate the content of speech. Thus, it may not encourage or deter or punish speech.
If government could evaluate the content of speech and punish what it characterizes as intolerance or disinformation, we’d have no freedoms remaining. Government is the negation of liberty. It exists by stealing, prohibiting and compelling. Speech is the last bastion against the government’s totalitarian impulses. If the government could punish the speech it hates and fears or the speech its patrons don’t want to hear, we will have no freedoms remaining. Why do we repose the liberties guaranteed by the Constitution into the hands of those who subvert them?
