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JUDGE NAPOLITANO: Who cares what the government thinks?
In 1791, when Congressman James Madison was drafting the first 10 amendments to the Constitution — which would become known as the Bill of Rights — he insisted that the most prominent amendment among them restrain the government from interfering with the freedom of speech.
After various versions of the First Amendment had been drafted and debated, the committee that he chaired settled on the iconic language: “Congress shall make no law…abridging the freedom of speech.”
Madison insisted upon referring to speech as the freedom of speech, not for linguistic or stylistic reasons, but to reflect its pre-political existence.
Stated differently, according to Madison — who drafted the Constitution as well as the Bill of Rights — because the freedom of speech pre-existed the government, it does not have its origins in government. The use of the article the reflects that pre-existence.
The First Amendment also reflects the framers’ collective belief that the freedom of speech is a natural right. It has its origins in our human nature.
We all yearn to speak free from restraint, and we all understand that we can use our speech to express any idea we want to express without fear or hesitation. Those yearnings and understandings are universal — hence, natural.
The framers wrote the First Amendment to codify negative rights. That is, the First Amendment recognizes the existence of the freedom of speech for every person, and it negates the ability and the power of Congress — after the Civil War amendments, of all governments — to infringe upon it. The First Amendment does not command Congress to grant the freedom of speech (it is not Congress’ to grant); rather, it commands that Congress shall not interfere with it.
Nearly all of the rights guaranteed in the Bill of Rights are negative rights. Their essence is not a grant of liberty. Their essence is a restraint on the government from interfering with pre-existing liberty.
I articulate this brief understanding of the freedom of speech in our constitutional form of government as an introduction to a discussion of the dangers of government exercising free speech. We know from the plain language in and the history of the First Amendment that all persons have the freedom of speech.
But what about the government? Does government have the freedom of speech?
That is not an academic question. The short answer to it is: Under the theory of the Declaration of Independence — that our rights come to us from the Creator and are inalienable — and consistent with Madison’s understanding, the government has no freedom of speech.
Government only can exercise the powers we have given it. Nowhere in the Constitution did the states give such powers to the feds, and nowhere did the people give such powers to the states. We don’t elect government to identify ideas it loves or hates. We elect it to protect our freedoms.
Stated differently, who cares what the government thinks?
In San Francisco, one needs to care. Last week, the city government there condemned the National Rifle Association, labeled it a domestic terrorist organization, and prohibited city agencies from interacting with it or with those with whom it interacts, because of the NRA’s robust defense of the Second Amendment.
Can any government in America constitutionally do that? In a word: No.
Surely, the folks who work in government have the same free speech rights as do the rest of us, and they are free to exercise them. However, they cannot commandeer the government — local, state or federal — and use it as an instrument to advance their own personal free speech.
Why not? Because when the government speaks, it chills the rights of others to speak who disagree with it, and that chilling constitutes the very infringement that the First Amendment was written to prohibit.
Chilling occurs when the government makes it easier for some to speak freely or more difficult for others to do so. Government does that when it expresses favoritism or hatred in the marketplace of ideas.
Whatever one thinks of the NRA, the government has no business condemning it. Can it condemn McDonald’s as a health menace for selling fatty foods? Can it condemn pro-life groups as domestic terrorists for publicly attempting to dissuade young women from having abortions?
Can it condemn young socialists for demanding confiscation and redistribution of property? Can it condemn the free press as a public enemy when the press criticizes it? The answer to all these hypotheticals (the last is not so hypothetical today) is: No. The First Amendment was written to keep the government out of the business of influencing the free market of ideas.
The whole purpose of the First Amendment is to encourage and foment open, wide, robust, unbridled speech about the government. Speech without fear or favor from the government. Speech without government interference. Speech without government challenge or reward.
In the most liberal city in America — where free speech was once sacrosanct — it is now subject to official government disapproval. That is, until the courts do their job of protecting the free speech of an unpopular minority so that individuals can decide for themselves what to hear and believe, free from government interference.
In America, thanks to the First Amendment, no one should hesitate to express any opinion publicly for fear of incurring the wrath of the government. And no government can punish or isolate any person or group because of their exercise of the freedom of speech.
Any government officials not faithful to those first principles have violated their oaths to uphold the Constitution and are unworthy of holding public office.
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