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JUDGE ANDREW P. NAPOLITANO: Can Government Regulate ‘Harmful’ Speech?

Can governments prevent big tech companies from censoring political and cultural voices on their platforms? Can governments regulate these platforms to force the speech they want to hear, or to block speech they think could harm innocent people? If you, like me, believe in natural rights, minimal government, and private property owners being able to use it as they see fit, then the simple answer to both questions is no. is.

These questions stem from last week's vicious Senate inquiry, in which a senator who has never fought a war he wouldn't want anyone to fight, used Facebook, etc. accused him of having blood on his hands for allowing speech on a platform he believes is It led to the suicide of a teenager.

Can the government regulate harmful and hurtful speech? Is the growing number of teen suicides a constitutionally federal issue? Can Congress constitutionally censure a private person because Congress dislikes or fears the speech that private person uses or permits?

This is the inside story.

Freedom of thought, speech and expression is a natural right. Just as people can naturally think as they wish, they can say what they think and announce what they have said. Speech and publication are also constitutional rights because they are expressly protected from government encroachment by the First Amendment. Natural rights come from our humanity, not from government.

Speech is natural to us, and in America it is free most of the time. In this context, the word “free” does not mean “no cost.” It means “without government license or retribution.”

The history of free speech in America is a winding one. In 1798, John Adams used the Alien Act and the Sedition Act to punish speech critical of himself. In the 1860s, Abraham Lincoln arrested newspaper reporters and editors who were critical of him. During World War I, Woodrow Wilson arrested students who protested draft resistance by loudly reading the Declaration of Independence in public. And after 9/11, George W. Bush created so-called free speech zones, outside of which the federal government could arrest anyone who made speech the government disliked. None of these were constitutional.

In all these instances of obstruction of speech, the government intervened. In fact, the scope of the First Amendment is limited to government. Although it states that “Congress shall make no laws,” today that phrase applies to all governments, local, state, and federal. Congress cannot ban speech. The same goes for state legislatures and city councils. The federal government cannot interfere with speech. The same applies to state and local government employees. (Related: Judge Andrew P. Napolitano: Fishermen's Groups Could Help Unravel the Administrative State)

Can Facebook executives ban speech they disagree with or allow speech the government says is harmful? The short answer is yes.

Facebook is in the business of making digital message boards available to everyone. The bulletin board is private property. When the owner of private property invites others to his premises for the benefit of both parties, he can establish ground rules for the use of his property.

You can kick me out of a garden party because you don't like the color of my shirt or my political views. The government can't do it.

If Big Tech platforms want to move from communication to indoctrination, they are free to do so based on fundamental property rights and the First Amendment. I understand and share the anger and frustration, and mourn the tragedy of those whose opinions have been censored and whose children have been harmed by hateful and harmful speech, but this is private property and should not be resolved by the government. It's not a problem. You cannot be silenced or forced to speak on private property.

Moreover, the general concept of security is not included in the powers delegated to the federal government by the Constitution. The Constitution guarantees freedom, not security.

Threats that imply government control between artists and their venues constitute “terror” and are unconstitutional. Chilling refers to deliberate actions by governments that cause speakers and writers to pause or reconsider out of fear of what the government will do as a result of their exercise of free expression.

So it's scary to have an FBI agent approach you when you're publicly criticizing the FBI, threatening to do so or regulating Big Tech message boards. So are threats from government officials and screeching voices from senators. Limited government is blamed because parents who couldn't control their children's viewing habits want the federal government to control their children's viewing habits and senators want their votes. It should be done.

Such government actions weaken the structure and core of the United States. It would really be a cure worse than the disease, as the government would privilege the speech of its sponsors and punish the speech of its opponents. That's exactly what the First Amendment was written to prevent.

If we take speech seriously, we can understand and accept that one person's hate speech is music to another person's ears. Judging the value of speech is for you and me to make, but the government is prohibited from doing so.

None of this is to say that executives at big tech companies are blameless. It is an abomination that they define our identity. And that's what they do when they silence speech they hate or fear. Everyone has the natural right to be the author of their own identity and destiny. And we have a natural right to collect and be informed by whatever data and opinions we choose to collect.

What can we do about this? We have the tools of the free market and the First Amendment at our disposal. We can not patronize advertisers and walk out of censorship halls with a loud voice. We can also build and support other venues. We can preach the values ​​of an informed nation, the virtues of parental responsibility, and the primacy of individual freedom. We can cultivate a wide range of opinions that censorship is abhorrent, that it should be avoided, and that parents, not governments, should control their children.

But we can never use government to force, evaluate, or punish speech. It would destroy what freedom we have left.

For more information about Judge Andrew Napolitano, please visit

Copyright 2024 Andrew P. Napolitano

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