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. Yet, if words were aimed at other colonists or at Parliament, all words were lawful. If they were aimed 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 colonists lost the Revolutionary War.

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 all 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 or popular will.

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 in the First Amendment have enacted a statute that punished speech? To 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 — who believed in limited government — the First Amendment prohibited Congress from interfering with or punishing any speech.

Adams’ administration indicted, prosecuted and convicted antifederalists — among them a congressman — for speech critical of the government.

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 thousands 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 students for reading the Declaration of Independence aloud or singing German beer hall songs.

Lincoln argued that in wartime federal power trumped free speech, and Wilson argued that the First Amendment only restrained Congress, not the president. Both arguments have since been soundly 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. None of their speech produced violence.

It was not until 1969, in a case called Brandenburg v. Ohio, that the Supreme Court gave us the modern definition of the freedom of speech. It unanimously 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 one of the purposes 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 zealots use Congress, the police and public opinion to block the speech that they hate. Speech has a corollary — the right to remain silent. Last week, Congress berated college presidents for not speaking out against what Congress calls hate speech. Who cares what Congress thinks about speech or hatred? This is not the function of Congress. One woman’s hate speech is another woman’s melody.

The whole purpose of the First Amendment is to keep the government out of the business of speech and silence. If a college president remains silent in the face of caustic speech, that’s none of the government’s business.

Punishing speech and punishing silence is the most dangerous business because there will be no end to it; and it will be generated by the political winds. The reason we have a First Amendment is to prevent the majority from infringing even infinitesimally upon the speech of an unpopular minority. The remedy for hateful or threatening speech is the voluntary choice of the individual. It can be more speech; it can be silence; it can be indifference.

But in a free society — which we once had in America — it can never be anything compulsory or tailored to please the government. When that happens, all freedom is lost.

Judge Andrew Napolitano
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