“I disagree with what you say but will defend to the death your right to say it.”
— Voltaire (1694-1778)
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 about infringement upon 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 his 55 colleagues 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 voluntarily ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights.
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. He believed the freedom of speech was one of the inalienable rights Jefferson wrote about in the Declaration.
Stated differently, each of the ratifiers of the Bill of Rights manifested in writing their unambiguous understanding 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. It does not require a permission slip.
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.
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 some of the framers — the Federalists, who wanted a leviathan central government as we have today — infringing upon the freedom of speech meant only silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.
To the anti-federalists — who believed the central government was a limited voluntary compact of states — the First Amendment prohibited Congress from interfering with or punishing any speech.
The Adams administration indicted, prosecuted and convicted anti-federalists — among them a congressman — for their critical speech.
When Jefferson won the presidency and the anti-federalists won control of Congress, the Federalists repealed three of the four Alien and Sedition Acts on the eve of their departure from congressional control, lest any be used against them.
During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North — including a congressman — who were critical of his war efforts. During World War I, President Woodrow Wilson arrested students for reading the Declaration of Independence aloud at draft offices 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; two were executed.
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 lethal force — 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. Clarence Brandenburg harangued an Ohio crowd 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 — 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 New York Times Co. v. Sullivan that the whole purpose of the First Amendment is to encourage and protect open, wide, robust, even caustic, hateful and unbridled speech.
In both cases, the court recognized that the speech we love needs no protection; the speech we hate does; and the government has no business evaluating the content of speech.
Yet, in perilous times like the present, we have seen the government arrest folks and deport them because of their expressive activities — speech and assembling with those of like mind.
A New York City college student who is a permanent resident alien now sits in jail in Louisiana because he spoke out in favor of a Palestinian state — a position that has been the public policy of the U.S. since 1948. A Rhode Island medical school professor, also a permanent resident alien, was sent to her native Lebanon because she attended a funeral of which the feds did not approve.
Punishing speech and association is the most dangerous business because it is subjective and value-free and there will be no end to it. The remedy for hateful or threatening speech is more speech — speech that challenges the speaker.
Why do folks in government want to silence their opponents? They must 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.
We have hired a government to protect our speech, not to tell us how to live. Instead, it does whatever will keep it in power.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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