The Limits of Free Speech

By Judge Andrew P. Napolitano

July 18, 2019 6 min read

During the past week, President Donald Trump excited two bitter public controversies by sending and publishing two highly inappropriate and offensively incendiary tweets.

The first of these was aimed at four female members of Congress — each a person of color, and, as members of Congress, each an American citizen. Yet the president said they should go back to the countries from which they came. The second tweet was aimed at Google, which the president argued should be investigated for treason.

The first of these tweets was xenophobic, racist and hateful; the second was just plain ignorant. Together they revealed a level of misguided thinking not heard from the Oval Office since President Richard Nixon's tapes were revealed.

Here is the backstory.

For months, four very liberal and highly progressive Democratic members of the House of Representatives — known in the media collectively as "the Squad" — have been taunting Trump over their vast ideological differences. The Squad has also argued that Trump is unfit for office and ought to be removed via impeachment.

As well, the Squad has taunted its leader — House Speaker Nancy Pelosi. The speaker has wisely distanced herself and the vast majority of House Democrats from the Squad, and she has not taken their bait.

The president, on the other hand, has taken their bait and attacked them personally. The Squad has views of American domestic and foreign policy seriously at odds with even the liberal base of the Democratic Party — hence Pelosi's occasional public but gentle chastisements.

Pelosi understands that while these congresswomen have every right to advocate for whatever cause they wish, some of their advocacy, if attributed to the national Democratic Party, could enhance the chances of a Republican victory in 2020.

So, when Trump attacked the individual members of the Squad based on immutable characteristics — race, gender, place of origin — he succeeded in doing what no Democratic presidential candidate has been able to do thus far. He united the Democratic Party around an issue and against himself.

Politics is not beanbag; but if the great painful lesson of American history has taught us anything, it is that there is no place in our public discourse for racial hatred. The Democrats know this. The president apparently doesn't.

It gets worse.

Now, the House Democrats want to add fuel to this fire by using the power of office to censure the president because of his tweets about the Squad. They have no business doing so. The president's words — backed up by his incessant repetitions — are condemnable, but they are only words. As Thomas Jefferson once argued, mere words "neither pick my pocket nor break my leg."

Congress was elected to write laws pursuant to the Constitution. It was not elected to isolate words its members hate and fear and then condemn the speaker of those words.

British parliaments did that to political opponents — domestic and colonial — and our Constitution was written by many who had been the target of parliamentary condemnations and who labored mightily in writing the Constitution and the Bill of Rights so that such events would not happen here.

It gets worse still.

Perhaps to deflect the nation's attention from his vile intemperance about the Squad, the president tweeted earlier this week — solely on the basis of an unfounded allegation by a high-tech supporter of his — that Google has sold technology to the government of China, and so Google should be investigated by the Department of Justice for treason. Such an absurd and ignorant statement would flunk a high school social studies test.

Treason is the only crime defined in the Constitution. This, too, like the primacy of the freedom of speech, was essentially the colonists ensuring their experience with British kings' baseless use of "treason" to justify horrific and bloody acts would not happen again

The constitutional definition states that treason shall consist only in waging war against the United States or in providing aid and comfort to its enemies. The actual phrase in the Constitution is "their enemies," referring collectively to the states.

The courts have defined enemy — or enemies — as any country or group on which the United States has declared war. Moreover, since only an American citizen can be charged with treason — its essence is a violent rejection of citizenship — it is ridiculous and reckless to suggest that a corporation could.

Where does all this leave us?

We have a president who sounds more like a Mafia don than a statesman and a Congress that wants to pick and choose whose offensive words to condemn. Yet even a condemnation of Trump by the House alone — the Senate seems to work for him — would be legally meaningless and also just words.

Any person faithful to the Constitution should disagree with all these words — the president's words and the censuring congressional words. But like Voltaire, a patriot will defend to the death the right to utter them.

In America, we don't punish mere words and there are no limits on public free speech — "free" meaning free from government interference.

The whole purpose of the First Amendment command that "Congress shall make no law ... abridging the freedom of speech" is to encourage and provoke open, wide, robust, unbridled public utterances about the government and those in it, without fear of any governmental consequences.

Our forebears fought a revolution against a king to assure posterity of that.

Photo credit: PhotoMIX-Company at Pixabay

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Judge Andrew P. Napolitano
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