The same government that cannot audit its own Defense Department, and can’t balance its own budget, is going to protect us from the Chinese — even if free speech is impaired in the process, writes Andrew P. Napolitano.
U.S. Supreme Court in Washington, D.C. (Phil Roeder, Flickr, CC BY 2.0)
SC Effectively Overturns Pentagon Papers Decision in TikTok Case
“Congress shall make no law …
abridging the freedom of speech
or of the press…”
—First Amendment to the U.S. Constitution
During the oral argument before the Supreme Court in the famous Pentagon Papers case, a fascinating colloquy took place between Justice William O. Douglas and the lawyer for the government.
The case was about whether the government could prevent The New York Times and The Washington Post from publishing secret documents that demonstrated that American generals had been misleading President Lyndon Johnson and that he had been lying to the American public during the Vietnam War.
The documents had been stolen by Daniel Ellsberg, a civilian employee of the Department of Defense, in an act of great personal courage and constitutional fidelity, and then delivered to both newspapers. Two federal judges had enjoined the newspapers from publishing the documents, and the Supreme Court was hearing appeals by the newspapers.
When Justice Douglas asked the government lawyer if the phrase “no law” in the First Amendment literally means no law, he was unable to answer. The court found his mumbo jumbo reasoning so telling that it actually published the transcript of the Q and A in the court’s opinion itself —something it had not done before in modern times nor since.
The court ruled in that landmark case that freedom of speech and the right to know what the government is doing and the right to consult whatever source one chooses when forming an opinion each trump the government’s concerns for protection of state secrets. Thus, it matters not how the media obtains information; if it is material to the public interest, the media may publish it, without fear of civil or criminal liability.
High-Water Mark
Daniel Ellsberg on March 19, 2011, at rally near the White House on anniversary of the U.S. invasion of Iraq. (Ben Schumin, CC BY-SA 2.0, Wikimedia Commons)
The Pentagon Papers case was the high-water mark for the freedom of speech: Freedom trumps safety. But the court studiously avoided answering Justice Douglas’ question about no law.
If the Constitution means what it says, then no law literally means no law, and thus all sorts of legislation about speech — from defamation to treason to silencing TikTok — is unconstitutional. But if no law doesn’t really mean no law, then what does it mean?
Regrettably, today, no law means whatever the court says it means. That’s what happened last week when the court upheld congressional legislation silencing TikTok.
The legislation was based on Congress’ authority under the Commerce Clause to ban offensive products. Yet, rather than analyzing the legislation based on that, the court — mouthing similar mumbo jumbo as the DoJ lawyer in the Pentagon Papers case — ruled that if Congress decides that some commonly used instrument is detrimental to national security, then the court will not second guess Congress, even if this has the ancillary effect of abridging upon the freedom of speech.
This ruling, which effectively overruled the Pentagon Papers case, turns First Amendment jurisprudence on its head.
The courts have long recognized the freedom of speech as a natural human right. James Madison, who drafted the Constitution and wrote the First Amendment, understood that the right comes from our humanity.
The First Amendment does not grant the freedom of speech; rather, it bars Congress from abridging it. Since the ratification of the 14th Amendment and subsequent judicial opinions, the prohibition upon interfering with speech restrains all levels of government — federal, state and local — and to all branches of government — legislative, executive and judicial.
Attorneys huddle during the Pentagon Papers trial in 1973, as rendered by David Rose. (SheBeHuman, Wikimedia Commons, CC BY-SA 4.0)
Those of us who believe that the Constitution means what it says also recognize that the freedom of speech encompasses ancillary rights — such as the right to silence, the right to read and gather information from whatever source one chooses, and the right to transmit free speech using whatever means one chooses.
Under this Madisonian view of free speech, Congress can no more tell any person how and where to express an idea than it can tell any person what to read or not read.
Yet the Supreme Court, whose principal job is to preserve personal liberty and private property from the reach of the government — the judiciary in this respect is the anti-democratic branch of government — utterly failed to do its job, bowing to undemonstrated congressional fears of Chinese Communist Party officials hacking into the mobile devices of youthful TikTok users.
People who live in glass houses shouldn’t throw stones.
The greatest computer-hacking enterprise on the planet is the federal government’s own National Security Agency.
That’s your friendly 60,000-person strong domestic spying apparatus, which unconstitutionally captures without search warrants every keystroke on every device and all data transmitted into, out of and within the United States.
All of this is funded by the same Congress that will crush the free speech rights of adults because it fears foreign hacking of their children.
Do you see what has happened here? The same government that cannot audit its own Department of Defense, that can’t balance its own budget, that can’t even deliver the mail is going to protect us from the Chinese — even if free speech is impaired in the process!
The legislation Congress enacted and that the Supreme Court upheld is profoundly at odds with basic American values. Among those values is that nothing trumps the freedom of speech. Without it, we cannot fulfill our aspirations as human beings or pursue happiness (remember that?).
This week, President Donald Trump directed his Department of Justice not to enforce the TikTok ban for 75 days in the hope of some pro-free speech resolution.
Doesn’t the Constitution mean what it says? Doesn’t no law mean no law? Isn’t the Constitution Madison gave us the supreme law of the land?
The answer to all these questions is: YES. But the Constitution and its guarantees are only as vital as is the fidelity of the folks in whose hands we have reposed it for safekeeping.
In that respect, we have failed miserably.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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