Judge Andrew P. Napolitano: Silencing free speech -- when the First Amendment is not enforced, this can happen

The essence of humanity is personal liberty. And the essence of government is the negation of liberty

"In short, we do not need good laws to restrain bad men. We need good men to restrain bad laws." -- G.K. Chesterton (1874-1936)

Why do people in power try to silence speech with which they disagree?

Last week produced news about the suppression of speech on university campuses. There, the suppression usually occurs through the power of intimidation before the speech is given. Yet, most public lectures on college campuses are public accommodations, meaning the landowner -- the university -- cannot bar the entry of audience members because of their political views, nor can it silence the speakers because of theirs.

Ordinarily, the owner of private property can impose whatever regulations he wishes upon those who voluntarily come upon his land. But in our era of ubiquitous government, state legislatures have enacted laws that require that if you invite the public, you must take whoever shows up. And if you accept money from the state or the feds -- and there are only a handful of colleges and universities that do not -- you must abide the same First Amendment standards as the government.

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In the latter case, since the government cannot discriminate on the basis of ideas, then colleges or universities that accept funds from the government likewise cannot. The theory here is that the government’s funds -- dollars taken from taxpayers or money the government has borrowed, to be repaid by future taxpayers -- ought not be used indirectly in ways that the Constitution bars the government from using directly.

But the First Amendment is rarely enforced on college campuses today because colleges have largely become places of left-wing orthodoxy where it is acceptable to cajole or intimidate into silence speakers who are at odds with that orthodoxy. The usual excuse is the speaker will outrage the audience and that would threaten public safety.

Yet, under the First Amendment, where the audience is voluntary, free speech trumps public safety. This clash happens when people come to public lectures not because they like the lecturer’s ideas but because they hate them.

A famous Chicago case put to rest the concept of freedom of speech versus public safety. The issue was the "heckler’s veto," which takes place when audience members are so intentionally disruptive that they effectively prevent the speaker from speaking.

Here is what happened. On Feb. 7, 1946, Fr. Arthur Terminiello, a Roman Catholic priest who was an outspoken opponent of the Truman administration, gave an incendiary speech in a hall in Chicago, which the sponsors of the speech had rented for that purpose. The sponsors had obtained the required permits from the Chicago police. The hall was on private property.

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The speech delighted Terminiello’s supporters and antagonized his opponents. The opponents numbered about 1,600 people and the supporters about 800. When it became apparent that violence might break out, the police ordered Terminiello to stop speaking and to leave the venue. When he disregarded their instructions, they arrested him and charged him with breach of the peace.

They did not arrest any of the audience members who broke chairs, smashed windows and stormed the stage. Only the priest who gave the speech was arrested.

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Terminiello was convicted in a trial court and his conviction was upheld by state appellate courts. He appealed to the U.S. Supreme Court, which reversed his conviction. In doing so, the court moved First Amendment jurisprudence significantly closer to where it is today -- a near absolute protection for public political speech.

The court held that the government cannot silence a speaker because it fears his words or the audience. It also held that it is the duty of the government to respect and protect the freedom of speech, not to nullify or avoid it.

The decision was 5 to 4, and Justice Robert Jackson wrote a misguided dissent with a memorable one-liner. He argued that freedom of speech does not tolerate violence and permits the government to silence a speaker who may be prone to inciting violence before he speaks. Jackson lamented that in the post-World War II era, liberty and governmental order are often adversaries.

He warned that if the courts regularly side with liberty, they will convert the Constitution and the Bill of Rights into a "suicide pact." But the First Amendment and the natural right to say what you think compel the court to side with liberty, no matter how odious is the speech.

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Jackson -- who had just returned to the court from a leave of absence as America’s chief prosecutor at Nuremberg -- was naive in his lament about liberty and governmental order being 20th-century adversaries. They have always been and will always be adversaries.

The essence of humanity is personal liberty. And the essence of government is the negation of liberty. Jackson rejected the very values underlying the Declaration of Independence and the Constitution; namely, that freedom is the default position because it is integral to our nature. And the Supreme Court rejected Jackson’s arguments.

Prior to this case, nearly all the Supreme Court’s 20th-century First Amendment rulings sided with the government. The Terminiello case is a landmark because, since it and from it, the Supreme Court has consistently sided with First Amendment freedoms. It arguably gave birth to the famous 1969 Brandenburg case, where the court unanimously held that all innocuous speech is absolutely protected and all speech is innocuous when there is time for more speech to challenge it.

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Which is the greater threat to personal liberty, a speaker who harangues a crowd that came to be harangued or a government that fears free speech and issues edicts about what to say and when to say it?

Will colleges and universities take note of this? Don’t hold your breath.

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