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Free Speech For Me But Not For Thee

Judge Andrew P. Napolitano on

Can an idea be dangerous? Can a dangerous idea be expressed? Can the government punish ideas it deems to be dangerous?

These are not questions one regularly asks in America because of our rich tradition of protecting the freedom of speech from infringement by the government. Yet, we appear to be on the cusp of the mass suppression of public speech.

Nothing would be more unnatural and un-American than the prohibition of the expressions of ideas.

Here is the back story.

The Hamas assault on Israeli civilians and military on Oct. 7 prompted a ferocious Israeli response on Palestinian civilians and Hamas fighters, the latter of which has been the subject of intense international debate and even litigation in the International Court of Justice. Both the initial assault and the response in turn have prompted in the U.S. the articulation of deeply held and strongly worded ideas.

Some folks here believe that the Israeli Defense Force has intentionally engaged in the genocide of Palestinian civilians in order to expand the borders of the current State of Israel so as to include what is today the Gaza Strip and the West Bank. Some believe that this land was destined by God to be the Israeli homeland. Some believe that the IDF has engaged in war crimes, and others believe it is doing what is necessary.

 

Some believe that only the total obliteration of Hamas will bring peace to Israel. And some fear that a strident anti-IDF or anti-Israeli government and pro-Palestinian rights verbal campaign in the U.S. will lead to violence against the Jewish people here and even to another Holocaust.

Let's start with the basics. The First Amendment to the U.S. Constitution prohibits Congress from infringing upon the freedom of speech. It doesn't command that Congress grant the freedom of speech. Rather it recognizes the pre-governmental existence of the freedom of speech and commands that Congress leave it alone. The framers and ratifiers of the Bill of Rights recognized that speech, along with thought, assembly, information gathering, publishing and allied expressive activities were natural rights that belong to all persons by virtue of our humanity.

They crafted the congressional prohibition on infringing upon those rights in 1791 in order to assure that the federal government in succeeding generations, as well as Congress in the then-present generation, would keep its hands off of speech. It was not until the ratification of the 14th Amendment in 1868 that the courts even contemplated applying the congressional prohibitions in the First Amendment to the states as well -- which they soon did.

Today, the law of public free speech is clear and unambiguous. All innocuous speech is absolutely protected. And all speech is innocuous when there is time for more speech to counter it. This applies, of course, only against the government or against the owners of private property who have dedicated it to public use. Thus, a public sidewalk, a public square, the Post Office, a college campus's public areas and Yankee Stadium, for example, are all places where the freedom of speech may not be infringed upon by the government.

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