While the country's attention was drawn to the federal government shutdown, President Donald Trump signed National Security Presidential Memorandum 7 (NSPM-7), which purports to designate the ideology of antifa as a "domestic terrorist organization" and directs federal law enforcement to disrupt its gatherings and those of its supporters.

The gist of NSPM-7 appears to be the president's view that the United States suffers from an enemy within our borders, an enemy that consists of Americans who hate Christianity, capitalism, and Americanism, and it is somehow the duty of the federal government to disrupt the free speech of these haters because their speech has a tendency to violence.

Here is the backstory.

When President Woodrow Wilson arrested folks for their speech critical of American involvement in World War I, including an infamous incident in which he arrested some of his own former Princeton University students for reading the Declaration of Independence aloud outside draft offices in Trenton, New Jersey, his Department of Justice persuaded the courts that bad tendency speech could be prosecuted.

Bad tendency speech was that which, as the name implies, might tend to violence. In a series of Supreme Court cases that would not finally be reversed until 1969, American jurisprudence permitted the government to prosecute bad tendency speech, later called speech which presents a clear and present danger, even if the evils which the speech sought to bring about never in fact came about.

In 1969, the Supreme Court unanimously rejected 50 years of judicially sanctioned suppression of free speech in Brandenburg v. Ohio. There, a KKK leader publicly condemned Blacks and the Jewish people and urged violence to take back the government from them. Brandenburg was convicted of criminal syndicalism — basically, the advocacy of violence to achieve political ends (like the American revolutionaries did) — in an Ohio state court, and his conviction was upheld.

The Supreme Court unanimously reversed and invalidated federal and state criminal syndicalism laws. In so doing, it rejected the bad tendency and clear and present danger tests, and articulated the modern understanding of the limits of public speech.

The Brandenburg case holds that all innocuous speech is protected from prosecution and all speech is innocuous when there is time for more speech to challenge or rebut it. The Brandenburg ruling has been upheld numerous times, as recently as just last year by the current Supreme Court. It basically unleashes public speakers to say whatever they wish, even to advocate violence, so long as there is time for other speech — irrespective of whether it is actually articulated — to challenge the speaker.

Now back to the NSPM-7 the president signed earlier this fall. This document purports to turn the Brandenburg rule on its head and to have America revert to the bad tendency and clear and present danger days of suppression of speech that the government hates or fears. Thankfully, the president cannot command a change in the judicial understanding of free speech. But he has directed federal law enforcement to DISPUPT the speech that his administration hates and fears as it is being spoken and even before the public hears it.

The NSPM-7 raises numerous constitutional issues.

First, in order to disrupt speech, the government must evaluate its contents; and Brandenburg and its progeny prohibit the government from evaluating the content of speech. The whole purpose of the First Amendment is to encourage, foster and protect open, wide, robust, caustic, hateful, even incendiary speech about the personnel and policies of the government. If the government were legally and constitutionally able to evaluate the content of speech and silence what it hated or feared, this purpose — the core underlying value of the First Amendment — would be undermined and the amendment rendered useless.

Second, the NSPM-7 presumes that federal law enforcement has a role in the public marketplace of ideas. This, too, is ahistorical and unconstitutional. There is no constitutional basis for federal law enforcement. Public safety was reserved by the states as their area of governance when they joined the union, and that reservation is articulated in the 10th Amendment. The government can't deliver the mail, and now it wants to inject itself into the marketplace of ideas!

Does the government enjoy the freedom of speech? The short answer is NO. The longer answer is that free speech — like its corollaries thought, press, assembly and religion — is a natural right that comes from our humanity. Thus, these rights can only be exercised by human beings. Of course, government officials — from the president on down — may think as they wish and say what they think and publish what they say just like the rest of us. But they cannot use the levers of government power to do so, as that would have the effect of silencing the rest of us.

Third, this NSPM-7 attacks ideas. The government's own intelligence agencies have concluded that antifa is an ideology, not an organization. While this ideology may be anti-Christian and anti-capitalist and anti-American, these are just ideas; and all ideas may lawfully be entertained by all people, and they may be expressed in speech and writing — no matter what orthodoxies they attack.

This concept of suppressing speech because it might lead to harmful results is the same attitude enjoyed by British agents and soldiers who rummaged through the homes of colonists ostensibly looking for government stamps on documents but truly looking for revolutionary literature.

There is no such thing in law as a domestic terrorist organization, and the NSPM-7 labeling of antifa is thus legally moot, but terrifying. The terror is a direct line from killing folks in boats on the high seas because someone in government thinks they might be about to commit a crime and disrupting constitutionally protected speech in America because someone in government thinks the speech might produce violence.

What ever happened to due process?

To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.

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