By Judge Andrew P. Napolitano
“It does me no injury for my neighbor to say there are 20 gods or no God.” —First Amendment to the U.S. Constitution
The modern concept of freedom of speech emerged with the Earl Warren U.S. Supreme Court in the 1960s, which ruled that hate speech is nonexistent and the government cannot indirectly restrict speech it is barred from directly regulating. In Brandenburg v. Ohio (1969), the court affirmed that even inflammatory speech, such as a KKK leader’s rhetoric against Blacks and Jews, is protected if it does not incite imminent lawless action. Six years earlier, in Bantam Books v. Sullivan (1963), the court rejected threats by public officials to silence publishers, upholding the First Amendment’s core principle: government may only regulate speech’s time, place, or manner, not its content.
This principle remains central today. For instance, a bullhorn used on a public street at 3 a.m. to promote a political cause might be restricted due to noise disturbances, but not because of the message itself. Last year, the Supreme Court unanimously reaffirmed these values. Prior to the Warren Court, federal courts often tolerated wartime suppression of speech by presidents and Congresses.
Jefferson and Madison believed freedom of speech is a natural right, rooted in individual humanity rather than government consensus. The First Amendment’s phrase “free speech” does not mean speech without cost but speech free from government control. If neighbors shout over one another, individuals can respond in kind. But if the police silence dissent, fear replaces expression.
The article questions whether late-night comedians were suspended due to employer decisions or government pressure. If the latter, it risks “chilling” speech—a violation of constitutional principles. While hate speech exists, the government cannot distinguish between offensive and protected speech. All speech is safeguarded unless accompanied by violence or imminent threats.
The First Amendment’s purpose is to protect speech that others find repulsive, as the speech we cherish requires no defense. Government, inherently a force of control, seeks to silence critics, yet its power grows regardless of political faction. The solution? Do not suppress speech you dislike, for a government capable of silencing dissent today may extinguish your voice tomorrow.
Judge Andrew P. Napolitano, a graduate of Princeton University and the University of Notre Dame Law School, was the youngest life-tenured Superior Court judge in New Jersey’s history. He is the author of five books on the U.S. Constitution.
