Andrew Napolitano, syndicated columnist
“I don't agree with what you said, but I will defend to the death your right to say it.” — Voltaire (1694-1778)
Holy Week was not a good week for personal freedoms, as governments across the country made direct and subtle attacks on free speech.
Freedom of speech is unique in American history and ethos. This was the linchpin of the separation of her 13 colonies from England. It is often claimed to be the most distinctive feature of life in the United States and all other countries. It has withstood and endured devastating attacks by governments, from the Alien and Sedition Acts of the 1790s, to the suspension of habeas corpus during wars between states, to the Red Scares of last century, to the surveillance of social media today. .
This great freedom continually pushes back against governments that attack it. Freedom of speech is the only, irresistible right to think what you want, say what you think, read what you want, publish what you say, and do all this without permission. It is a value and metaphor for permanent, natural rights. You can submit your government permit without fear of government retaliation.
Freedom of speech is a natural and constitutional right. It is expressly guaranteed by the First Amendment. This amendment does not mandate that Congress recognize free speech, but rather prohibits Congress from infringing on free speech.
Since the ratification of the Fourteenth Amendment, federal and state courts have applied the Congressional violation prohibition to all governments, federal, state, and local. and to all branches of government, including the legislative, executive, and judicial branches.
When teaching law students the values of the Bill of Rights, I often begin with an interesting hypothesis. Would free speech still exist in America if states ratified a constitutional amendment repealing the First Amendment? The short answer to this question is yes. The longer answer reflects that speech is not just a constitutional right. Because freedom of speech is a gift from our humanity, our Creator, we have this right regardless of whether it is documented and recognized by our government. and can be exercised.
Further, all persons employed by the government anywhere in the United States swear allegiance to the Constitution, including all amendments. You would never know that from the events of the past week.
This is the inside story.
Last week, Texas enacted a law requiring all state schools, from kindergarten through graduate school, to punish speech that officials deem anti-Semitic. South Dakota also took a similar action last week. Governors in both states have declared that they want to protect certain people from the use of ideological language such as: “Intolerance”.
In Oklahoma, three FBI agents visited a local activist's home last week to interview her about her social media posts. She videotaped their encounter. When the agents revealed they didn't have a warrant, she asked them to leave. Good for her! She could have called the local police and reported that her three strangers with guns were harassing her on her front porch. Her social media posts are not government business.
Texas and South Dakota laws also undermine publicly stated efforts to protect only certain sensitive groups. This violates the Equal Protection Clause of the Fourteenth Amendment, which expressly prohibits states from segregating groups for special or lesser protection.
Also last week, a judge at the New York State Supreme Court (New York's trial court) imposed a gag order preventing former President Donald Trump from criticizing the judge's daughter. Her daughter is a fundraiser for Democratic clients who are using the former president's indictment as a fundraising solicitation. Her daughter has voluntarily participated in the marketplace of ideas through her professional work, many of which are aimed at the former president.
Put aside the unseemly sight of a judge signing an order insulating his daughter from political criticism by public figures, and put aside the public criticism of her and her client. These gag orders are a direct attack on free speech.
I make this point because most judges who have tried high-profile criminal cases support the limited use of gag orders to isolate jurors and protect witnesses from extrajudicial influence. I am aware that I am an abnormal person.
However, the fact remains that gag orders are a direct government attack on free speech. In Trump's case, it would be extremely unfair for the judge's daughter to use Trump's criminal prosecution as a fundraising vehicle, while her father, who is the judge in Trump's criminal case, said Trump himself had not spoken out about the matter. They are being silenced from commenting publicly.
What ever happened to free speech?
All of these events amount to the government's involvement in the content of speech, and are therefore extremely unconstitutional. The Supreme Court has consistently ruled since the 1960s that the entire purpose of the First Amendment is to keep the government out of speech. The government cannot support or dislike speech. Also, the content of your speech may not be evaluated. Therefore, it does not encourage, discourage, or punish speech.
If governments were able to evaluate the content of speech and punish what is characterized as intolerance and disinformation, we would have no freedom left. Government is the negation of freedom. It exists by stealing, prohibiting, and forcing. Speech is the last bulwark against the government's totalitarian impulses. If governments could punish speech they hate and fear, or speech their sponsors don't want to hear, we would have no freedom left.
Why would we leave our constitutionally guaranteed freedoms in the hands of those who would destroy them?
Editor's note: For more information about Judge Andrew Napolitano, visit https://JudgeNap.com.
