Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

Lie #5

“Congress Shall Make No Law . . .

Abridging the Freedom of Speech”

The First Amendment to the United States Constitution, enacted on December 15th 1791, states, in part, that “Congress shall make no law . . . abridging the freedom of speech. . . .” It is the opening line of the Bill of Rights. It is the most famous phrase in the Constitution. It is the historical and moral equivalent of “All Men Are Created Equal.” The right to freedom of speech is one of the most fundamental rights protected in the United States of America, and one that separates us from other nations. It is also a natural right in that we have it by virtue of our existence as humans. We know this because the Founders refer to it as the freedom of speech. This language implies that free speech was not a new concept, but a natural right that must be safeguarded.

The freedom of speech preceded the existence of the United States, and the Constitution recognizes that. The First Amendment is essential to American government because it ensures that “debate on public issues . . . [is] . . . uninhibited, robust, and wide-open.”1 Differences of opinion and conflict result in informed decisions.

Furthermore, the freedom of speech is invaluable to our personal autonomy because it removes constraints on our ability to think what we want to believe, and say what we want to think; to exchange ideas at will. The freedom of speech is, in a word, liberating.

Taken word-for-word, the First Amendment prohibits only Congress from abridging the freedom of speech. However, the First Amendment also applies to the States via the Fourteenth Amendment, which prohibits the States from making or enforcing any law that abridges the privileges or immunities of citizens of the United States.

Although the First Amendment applies to all levels of government, it does not apply to all speech. No one would argue that speech involved in a criminal conspiracy should be protected, nor can using a megaphone outside someone’s home at 3:00 a.m. be justified. Nevertheless, our federal and state governments have seriously sought to undermine the value of the First Amendment by smothering dissent, influencing how we act, or censoring the material we can utter, publish, view, or hear. Thankfully, the Supreme Court has kept Congress, the President, and state legislatures in check, but that has not stopped lawmakers from continuing their attack on this natural and sacred freedom.

Thou Shalt Not Frighten the Government

On June 15th 1917, about two months after the United States entered World War I, which President Wilson claimed would be the “war to end all wars,” Congress enacted the Espionage Act of 1917, with the stated purpose of eliminating espionage and protecting military secrets. Title I, Section 3, of the Act makes it a crime for any citizen, during wartime, (1) willfully “to make or convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies”; (2) willfully to “cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States”; or (3) willfully to “obstruct the recruiting or enlistment service of the United States.” Violators of this Section face a fine of up to $10,000, or imprisonment of up to twenty years, or both. That’s twenty years in jail for the utterance of government-prohibited political speech.

The Act, on its face, the government maintained, was somewhat legitimate. Especially during a war as complex as World War I, actual physical interference with the American military effort would have posed a grave threat to our country’s safety. Sticks and stones can break my bones, but names will never hurt me. In his Virginia upper-class youth and at Princeton University, Woodrow Wilson probably never heard this nursery rhyme truism. The Wilson Department of Justice exploited the Act’s vague language, using it to prosecute roughly two thousand Americans who engaged in constructive verbal criticism of America’s involvement in the Great War.2 In the process, the government made a mockery of the First Amendment by suppressing dissent, and seriously undermining the fundamental right to freedom of speech, which it claimed it was fighting the war in order to preserve.

Remarkably, in 1919, the United States Supreme Court unanimously upheld Charles T. Schenck’s conviction under Section 4 of the Espionage Act, for conspiring to violate Section 3 of the Act.3 Schenck, Secretary of the Socialist Party, supervised the distribution of a leaflet that likened the draft to slavery, and called involuntary conscription a crime against humanity. The leaflet urged those subject to the draft not to “submit to intimidation” and to exercise their right to oppose it.

Justice Oliver Wendell Holmes Jr., writing for the Court, declared that the relevant inquiry in cases of this type is “whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” In analyzing the Schenck Case under this framework, Holmes reasoned, literature that may be appropriate in peacetime may be an impediment to the military during wartime, and may pose a clear and present danger of obstructing the ultimate military goals. He also held that the evidence permitted the conclusion that Schenck’s goal in distributing the leaflets was to incite potential draftees to obstruct the draft, as obstruction was the only effect that could feasibly be expected. The Court, therefore, concluded that Schenck conspired to violate the Espionage Act.

What makes the Schenck decision so disturbingly fascinating is that it admits that the First Amendment is toothless in times of war and at other times when the context in which speech is uttered causes an impact on society that the government dislikes, hates, or fears. The opinion also states that