It Is Dangerous to Be Right When the Government Is Wrong - Andrew P. Napolitano [32]
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The First Amendment states in part, “Congress shall make no law . . . abridging the freedom of speech.” Singularly, this line recognizes the natural right to free expression and restrains the Congress from interfering with that right. It also acknowledges the fact that the right to free speech is a natural or fundamental right. That the Founders wrote “the freedom of speech” makes it clear that they viewed the right as pre-existing the government’s formation. Thus, the government can only curtail your right to free speech when you violate the Natural Law; otherwise, it has no authority to do so, and any regulation of the right is an illegitimate exercise of power. It should also be clear that the freedom to speak, unlike the freedom to swing one’s arms or shoot a gun, will be by its very nature almost never able to harm another. The possible window where speech can violate another’s natural rights, and thus be eligible for government regulation, is extraordinarily narrow.
Interestingly, because the Founders believed free speech to be a natural right, they were not always in agreement as to whether it should be inserted into the Constitution. Some argued the Constitution was only a granting of limited power to the federal government by the states, so there was no need to proclaim what rights the states and people retained. After all, where in Article I is Congress authorized to regulate speech? If there was no explicit grant of a power to curtail a right, then there would be no need to recognize that right in the document. Madison initially shared this view. He believed the Bill of Rights was not necessary because the rights in question “were reserved by the manner in which the federal powers are granted.” Moreover, he had previously experienced the inefficiency of a bill of rights on multiple occasions within state governments;2 an enumeration of rights could prove extraordinarily dangerous, since the inclusion of only some rights could lead some to believe that other rights do not exist.
Moreover, freedom of speech is in accord not only with original understanding, but the political theory of good governance. The theoretical justifications for freedom of speech can be divided into three categories. First, freedom of speech is necessary to foster a marketplace of ideas. For every thousand brilliant ideas, there are a million exchanges of nonsense. How is truth weeded out? It is not by the government, or even a democratic majority for that matter, arbitrarily determining the truth for itself. No, it is by allowing those ideas to be exchanged, debated, and nurtured. Only this process, and time, will reveal truth.
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Second, and related to the marketplace of ideas, freedom of speech is necessary to have an effective government because voters must have access to information in order to make well-informed decisions. If the government could restrict certain individuals’ freedom of speech, namely, political opposition, then voters would be unlikely to recognize the flaws in the status quo or discuss better alternatives. Indeed, such is the very purpose of this book. And after all, if there is such a thing as popular sovereignty, how could the employers (voters) properly “instruct” their employees (government workers) if they did not have the ability to speak?
Finally, and as mentioned earlier, freedom of speech is at the core of our individuality. Although the above justifications might shield political speech, artistic and musical expressions are clearly just as deserving of protection. Does one need a message to convey in order to enjoy singing in the shower and writing poetry in the comfort of one’s own home? Clearly not. As Justice Thurgood