What Happened to the Freedom of Speech?

By: Judge Andrew Napolitano

“Congress shall make no law…
abridging the freedom of speech,
or of the press…”
– First Amendment to the U.S. Constitution

When James Madison agreed be the scrivener at the Constitutional Convention during the summer of 1787, he could not have known that just three years later he’d be the chair of the House of Representatives committee whose task it was to draft the Bill of Rights.

In doing so, he insisted that the word “the” precede the phrase “freedom of speech” in what was to become the First Amendment, so as to reflect its preexistence; meaning, the freedom of speech preexisted the United States. Madison believed that the pre-political rights, which he enumerated in the Bill of Rights are natural to our humanity, and he articulated as much in the Ninth Amendment, and in his speeches in support of the ratification of what would become the first 10 amendments.

Madison knew that when he wrote, “Congress shall make no law abridging … the freedom of speech, or of the press” he and the ratifiers meant no law. As direct and unambiguous as those words are — the Constitution as amended is the supreme law of the land — Congress and the courts have not always been faithful to them.

Thus, at the height of the anti-immigrant hysteria whipped up by President Woodrow Wilson and his supporters, Congress enacted the Espionage Act of 1917, which punished speech deemed harmful to America’s war efforts. Wilson was determined to win the First World War at the price of the suppression of ideas that he hated or feared.

The Espionage Act was used aggressively and successfully (from Wilson’s vantage point) during the war and in the immediate years following. Then, a series of Supreme Court decisions instructed that the Act is probably unconstitutional as its sole purpose and effect is to suppress speech. These opinions harkened back to Madison, who believed that the only moral and constitutional remedy for hateful or harmful or even seditious speech was not suppression and punishment but rather more speech.

That attitude prevailed generally in the legal and judicial communities and at the Department of Justice for a few generations — even during World War II — until now. Now, the Trump DOJ has indicted a non-American whose alleged crimes took place in Europe for numerous violations of the Espionage Act, and it has done so in direct defiance of a Supreme Court decision that ruled against this during the Nixon years.

The non-American is Julian Assange, a radical and unorthodox publisher of truthful information that often exposes the hypocrisy of government. His entity for exposure is WikiLeaks — the website known for receiving stolen data and for posting true and accurate copies of them.

It was Assange and WikiLeaks that published the infamous Democratic National Committee emails in October 2016, which contained the “dirt” on Hillary Clinton once offered by Russian agents to Trump campaign officials, and for which then-candidate Trump lavished public praise on WikiLeaks.

Yet, back in 2010, Assange arranged to receive and publish stolen copies of top secret military materials that revealed American military personnel in Afghanistan at their worst. It showed them knowingly killing innocent civilians — and doing so gleefully. The data that Assange revealed had been stolen for him by an Army private then named Bradley Manning. Manning was tried and convicted of the theft and was sentenced to 35 years in a military prison, much of it in solitary confinement. In January 2017, President Barack Obama commuted Manning’s sentence to time served.

If this sounds a bit like history repeating itself from the Nixon years, it is. In 1971, Daniel Ellsberg, a civilian employee of the Nixon Department of Defense, revealed that he had stolen thousands of pages of top secret materials showing that former President Lyndon B. Johnson and some of his generals had serially lied to the American public and to Congress about the Vietnam War.

When he delivered the stolen materials to The New York Times and to The Washington Post for publication, and the Nixon DOJ got wind of the delivery, it persuaded two federal judges to enjoin the publication of the documents.

In a landmark decision, known as the Pentagon Papers case, the Supreme Court ruled that a publisher may reveal whatever materials come into the publisher’s possession, no matter how they got there, so long as the materials are themselves material to the public interest.

Stated differently, the thief — Ellsberg then, Manning today — can be tried for theft, but the publisher is absolutely protected by the “no law” language of the First Amendment. Ellsberg was indicted and prosecuted, but the charges were dismissed by a federal judge whose conscience was shocked when he learned that FBI agents broke into the office of Ellsberg’s psychiatrist to get “dirt” on him.

Assange is also protected by the values underlining that “no law” language. The whole purpose of the First Amendment, numerous courts have written, is to promote and provoke open, wide, robust political debate about the policies of the government. That simply cannot be done when government operates in secret. Even when publishers tell the possessors of state secrets how to deliver them — as Times and Post reporters surely did to Ellsberg — they cannot be silenced or punished.

Why was Assange indicted? Government killers are a mob, and mobs love anonymity. Assange assaulted their love by ending that anonymity. When the government kills and rejoices and lies about it in our names, we have a right to know of its behavior. Democracies spy on us all, yet they persist in punishing, to the ends of the earth, those who dare to shine a light upon them. Tyrannies do the same.