Judge Andrew Napolitano writes at the Tenth Amendment Center A Brief History of the Freedom of Speech in America
When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists’ grievances with the British government. Notably absent were any complaints that the British government infringed upon the freedom of speech.
In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king — as Jefferson’s were in the Declaration — they constituted treason.
Needless to say, Jefferson and the 55 others who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.
Of course, the colonists won the war, and, six years afterward, the 13 states ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights. The first ratified amendment prohibited Congress from doing what the colonists never seriously complained about the British government doing — infringing upon the freedom of speech.
James Madison, who drafted the Bill of Rights, insisted upon referring to speech as “the” freedom of speech, so as to emphasize that it preexisted the government. If you could have asked Madison where he believed the freedom of speech came from, he’d have said it was one of the inalienable rights Jefferson wrote about in the Declaration.
Stated differently, each of the signatories of the Declaration and ratifiers of the Bill of Rights manifested in writing their unambiguous belief that the freedom of speech is a natural right — personal to every human. It does not come from the government. It comes from within us. It cannot be taken away by legislation or executive command.
Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.
So, how could the same generation — in some cases the same human beings — that prohibited congressional infringement upon speech have enacted a statute that punished speech?
To the some of the framers — the Federalists who wanted a big government as we have today — infringing upon the freedom of speech meant silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.
To the antifederalists — or Democratic-Republicans, as they called themselves — the First Amendment prohibited Congress from interfering with or punishing any speech.
Adams’ Department of Justice indicted and prosecuted and convicted antifederalists — among them a congressman — for their critical speech.
When Jefferson won the presidency and the antifederalists won control of Congress, the Federalists repealed the speech suppression parts of the Alien and Sedition Acts on the eve of their departure from congressional control, lest it be used against them.
During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North who were critical of his war efforts. During World War I, President Woodrow Wilson — whom my alma mater Princeton University is trying to erase from its memory — arrested folks for reading the Declaration of Independence aloud or singing German beer hall songs.
Lincoln argued that preserving the Union was more important than preserving the First Amendment, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been rejected by the courts.
In the 1950s, the feds successfully prosecuted Cold War dissenters on the theory that their speech was dangerous and might have a tendency to violence. Some of the victims of this torturous rationale died in prison.
The government’s respect for speech has waxed and waned. It is at its lowest ebb during wartime. Of course, dissent during wartime — which challenges the government’s use of force to kill — is often the most important and timely speech.
It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us a modern definition of the freedom of speech. Brandenburg harangued a crowd in Hamilton County, Ohio and urged them to march to Washington and take back the federal government from Blacks and Jews, whom he argued were in control. He was convicted in an Ohio state court of criminal syndicalism — basically, the use of speech to arouse others to violence.
The Supreme Court unanimously reversed his conviction and held that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to rebut it. The same Supreme Court had just ruled in Times v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic and unbridled speech.
The speech we love needs no protection. The speech we hate does. The government has no authority to evaluate speech. As the framers understood, all persons have a natural right to think as we wish and to say and publish whatever we think. Even hateful, hurtful and harmful speech is protected speech.
Yet, in perilous times like the present, we have seen efforts to use the courts to block the publication of unflattering books. We have seen state governors use the police to protect gatherings of protestors with whose message they agreed and to disburse critical protestors. We have seen mobs silence speakers while the police did nothing.
Punishing speech is the most dangerous business because there will be no end to it. The remedy for hateful or threatening speech is not silence or punishments; it is more speech — speech that challenges the speaker.
Why do folks in government want to silence their opponents? They fear an undermining of their power. The dissenters might make more appealing arguments than they do. St. Augustine taught that nearly all in government want to tell others how to live.
How about we all say whatever we want and the government leaves us alone?