From the Right



Our Government is Using Force to Suppress Freedom!

Judge Andrew P. Napolitano on

When James Madison was a member of Congress in 1791 and charged with drafting the Bill of Rights, he made two grammatical demands. One was that the word "the" precede "freedom of speech" in the First Amendment, and the other was a command in the Ninth Amendment that the "rights retained by the people," rights too numerous to enumerate, "shall not be disparaged" by the government.

This principle -- that our rights preexisted the government -- would be played out over and over in litigation in the centuries following the ratification of the Bill of Rights. The ratification itself was insisted upon by five of the new states who threatened to leave the new union unless restraints were added to the Constitution so as to protect the individual liberties that the Declaration of Independence -- then only 15 years old -- stated unambiguously were granted by the Creator.

Though the colonists deeply valued all the rights articulated in the Declaration, truly it was the freedom of speech that drove the revolution. Yes, the Americans had Kentucky long guns that enabled the colonial militias to shoot and kill British forces from distances that the British weaponry was unable to reach. Yes, the Americans were animated by defending their homeland.

But it was speech -- sung in taverns, written in broadsides, delivered in sermons, distributed in pamphlets, adopted by the Continental Congress and colonial legislatures, and proclaimed in town squares from Boston to Charleston -- that whipped the brushfires of freedom into a revolution and a new nation.

I offer this brief historical, philosophical and legal analysis of the freedom of speech as background for the discussion that follows.

Today, this most basic and utterly essential freedom -- both a natural human right and a constitutionally protected right -- is under assault by governments that hate or fear the content of the speech. I am addressing the demonstrations on college campuses today and the authoritarian responses to them by college presidents, governors and mayors.


Here is the dispute in a nutshell.

Students at various universities are repulsed by the gravity of the assault on Gaza by the IDF. They have chosen to address this assault and not the assault on Israeli civilians and military on Oct. 7. They are free to address whichever assault they choose.

They have also chosen to articulate their views by occupying public places on campuses; shouting, singing and haranguing college administrators. The administrators, fearing a loss of donations from those who disagree with the students or harm to other students who challenge the demonstrators, have engaged local and state police to suppress these demonstrations.

Can the government interfere with speech because of its content? In a word: NO.


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