In recent days, the government in America has not only failed to protect the freedom of speech, it has attacked it. Like authoritarians throughout history, it has sought to silence the speech it hates and fears. But most authoritarians did not have a Constitution that was written as an intentional obstacle to them.
Last week, Raquel Pacheco posted a Tweet/X calling Miami Beach Mayor Steven Meiner a hypocrite for supporting the free speech of those who want Israel to take over Gaza, but opposing the free speech of those who want a Palestinian state. When she received a visit from two Miami Police detectives asking if she had placed that post, she politely declined to answer. Pacheco told them that she has the right to remain silent. When she asked them to leave the front porch of her home, they did.
Two weeks ago in Minneapolis, Susan Tincher was arrested for following ICE agents and persistently videotaping them. She was shoved to the snow on her belly and handcuffed behind her back. At an ICE detention facility, her clothes and her wedding ring were removed from her — the latter by a bolt cutter. After five hours of confinement, an ICE supervisor decided to release her. ICE agents returned her destroyed wedding ring but not her clothes, which they told a federal judge had been lost.
Also in Minneapolis, the Department of Justice recently announced that it has commenced criminal investigations of Minnesota Gov. Tim Walz and Minneapolis Mayor Jacob Frey, alleging that their encouragement of anti-ICE demonstrations constitutes obstruction of justice, for which they should be charged and prosecuted, and incarcerated if convicted.
Last week, FBI agents raided the Washington, D.C., home of a Washington Post reporter, Hannah Natanson. They seized all her electronic devices. She had been working on a story involving federal whistleblowers, 1,100 of whom had communicated with her. Raiding the homes of journalists is prohibited by federal law, unless the journalist is engaged in ongoing crimes — which the feds have said Natanson is not — or to save human life; also not the case here. This was chilling the speech of the whistleblowers — on steroids.
All of these events constitute the government evaluating the content of speech, determining what it hates or fears, and then either chilling the speakers or prosecuting them. The First Amendment protects the right to watch the government and video its agents, to assemble and curse the government and tell it to leave, to remain silent in the face of government commands and intervention, to investigate the government and even to encourage civil disobedience openly and notoriously.
Thomas Paine would have called all this the right to shake your fist in the tyrant’s face. All of these rights stem from our humanity. The First Amendment does not grant them, it insulates them from government interference.
At the time of the ratification of the Constitution, many ratifiers feared a large, overbearing and debt-laden central government — as we have now — and insisted that their votes for ratification were conditioned upon amendments to the Constitution that would prohibit the new government from interfering with natural rights.
Most of the Constitution’s ratifiers understood the concept of natural rights. That was, of course, the core of the Declaration of Independence, in which Thomas Jefferson wrote that we are all endowed by our “Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”
How can a right be unalienable? Since rights are as personal and natural as our bodily movements, only a jury can take them away after the person from whom the rights were sought has been found to have voluntarily given up those rights by engaging in aggression against the rights of others.
That is at least the theory of natural rights. They cannot be impaired by legislative command or executive edict; rather, only by a judge and jury after meticulous compliance with due process.
The idea of conditioning ratification sprang from the view that a state could leave the federal government just as easily as it joined — by a simple act of legislation. James Madison, the principal author of the Constitution, argued that the legislature or the highest state court in a state could nullify acts of the federal government that are facially repugnant to the Constitution. Jefferson and Madison secretly authored resolutions adopted by the Virginia and Kentucky legislatures that in those states nullified the Alien and Sedition Acts, in which Congress had criminalized speech critical of the government.
The Constitution is based on value judgments made by the Framers and accepted by the ratifiers. It has many defects, but its core value was and is the primacy of the individual over the government — state or federal.
By recognizing natural rights by name in the first eight amendments and by recognizing the existence of human rights too numerous to name in the Ninth Amendment — and by requiring the government to protect them — the Framers and ratifiers advanced a government, the essential purpose of which was unambiguously to preserve personal freedom; not government order or power, but personal freedom. The Revolutionary War was fought, Jefferson argued, to craft a government here that would protect natural rights, not assault them.
A police state is the antithesis of the constitutional scheme advanced by Jefferson and Madison. In a police state, the laws are written so as to appear to defend freedom; but they are enforced and interpreted so as to enhance the power of the government.
When the government tries to intimidate people into silence, when it brutalizes people who shake their fists at its agents, when it threatens to criminalize speech by public officials critical of it, when it terrorizes those who speak their minds — and gets away with these unconstitutional and stomach-churning acts — the American police state has arrived.
To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
COPYRIGHT 2026 ANDREW P. NAPOLITANO
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