Taking Free Speech Seriously

By: Judge Andrew Napolitano


Can the government prevent Big Tech from censoring political and cultural voices on their platforms? Can the government regulate these platforms to compel speech the government wants to hear and to prevent speech it believes may harm innocents? If you believe — as I do — in natural rights, minimal government and that owners of private property can use it as they see fit, the short answers to both questions is NO.

These questions arise from a vicious Senate inquisition last week, during which a senator who never met a war he didn’t want someone else to fight accused Facebook and others of having blood on their hands because they permitted speech on their platforms that the senator believes led to teen suicides.

Can the government regulate harmful and hurtful speech? Is the rash of teen suicides constitutionally a federal matter? Can Congress constitutionally berate private persons because Congress hates or fears the speech they use or permit?

Here is the backstory.

The freedoms of thought, speech and expression are natural rights. Just as one can naturally think as one wishes, one can say what one thinks and publish what one says. Speaking and publishing are also constitutional rights since the First Amendment expressly protects them from government infringement. A natural right comes from our humanity, not from the government.

Speech is second nature to us, and in America — for the most part — speech is free. In this context, the word “free” doesn’t mean “without cost.” It means “without a government permission slip or reprisal.”

The history of free speech in America is a tortuous one. In 1798, John Adams used the Alien and Sedition Acts to punish speech critical of himself. In the 1860s, Abraham Lincoln arrested newspaper reporters and editors critical of him. During World War I, Woodrow Wilson arrested students who urged draft resistance by reading the Declaration of Independence aloud in public. And after 9/11, George W. Bush instituted so-called free speech zones, outside of which the feds could arrest those who used speech the government hated. None of this was constitutional.

In all of these interferences with speech, the government did the interfering. Indeed, the reach of the First Amendment is limited to government. Even though it states, “Congress shall make no law,” today, that language applies to all government — local, state and federal. Congress cannot outlaw speech; neither can a state legislature or a city council. The feds cannot interfere with speech; neither can state or local officials.

Can executives at Facebook ban speech with which they disagree and permit speech that the government says is harmful? The short answer is YES.

Facebook operates a business that consists of making a digital bulletin board available for all. The bulletin board is private property. The owner of private property who invites others onto his property for the benefit of both can establish ground rules for the use of that property.

You can kick me out of your garden party because you don’t like the color of my shirt or my political views. The government cannot.

If Big Tech platforms want to migrate from communication to indoctrination, they are free to do so under basic property rights and First Amendment law. While I understand and share the anger and frustration and mourn the tragedy of those whose views have been censored and whose children have been harmed by hateful, hurtful speech, this is not a problem for government to solve because it is private property and because the government can neither silence nor compel speech on private property.

Moreover a generalized notion of safety is not among the powers delegated by the Constitution to the feds. The Constitution guarantees liberty, not safety.

The very threats to insinuate government controls between writers and their venues are themselves unconstitutional, as they constitute “chilling.” Chilling consists of any intentional government behavior that gives a speaker or writer pause or second thoughts out of fear of what the government might do as a consequence of the exercise of expressive freedoms.

Thus, an FBI agent coming nose to nose with you as you are publicly criticizing the FBI would constitute chilling, as would the threat to do so, as is the threat by persons in government to regulate Big Tech bulletin boards, as are senators shrieking like crazy persons because parents who failed to control their children’s viewing appetites want the feds to do so for them, and the senators want their votes, limited government be damned.

Such government behavior undermines the fabric and core of the United States. It would truly be a remedy worse than the disease because the government would favor the speech of its patrons and punish the speech of its adversaries — the very acts that the First Amendment was written to prevent.

If you take speech seriously, you understand and accept that one person’s hate speech is another’s music to the ears. Value judgments of speech are yours and mine to make, but are forbidden to the government.

None of this is to say that Big Tech executives are faultless. It is hateful for them to define our identities. And that’s what they do when they silence speech they hate or fear. Everyone has the natural right to be the author of his or her own identity and destiny. And we have the natural right to become informed by gathering whatever data and opinions we choose to gather.

What can we do about this? We can use the tools of the free market and the First Amendment. We can loudly leave the censoring venues and not patronize their advertisers. We can build and support other venues. We can preach the values of an informed public and the virtues of parental responsibility and the primacy of personal liberty. We can foster widespread opinions that censorship is repellant and censors should be shunned and parents — not government — should control their children.

But we can never use the government to compel or evaluate or punish speech. That will destroy what freedoms we have remaining.