The Unyielding Shield of Free Speech: A Legal Perspective on the First Amendment

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. In two landmark cases, the court ruled that hate speech does not exist and the government cannot indirectly prohibit what it is barred from doing directly. In Brandenburg v. Ohio (1969), the court determined that even inflammatory speech, such as a KKK leader condemning racial minorities, remains protected if there is time for opposing views to counter it.

Six years earlier, in Bantam Books v. Sullivan (1963), the court affirmed that public officials cannot compel publishers to silence authors, a principle rooted in the First Amendment’s values. At the core of these rulings lies a foundational truth: the government may not evaluate or act on the content of speech; it may only regulate time, place, and manner. For instance, using a bullhorn to promote a political cause at 3 a.m. in a residential area could be restricted due to noise disturbances, but not because of the message itself.

Last year, the Supreme Court unanimously reaffirmed these principles. Before the Warren Court, federal courts often failed to protect speech during wartime, allowing presidents and Congresses to suppress dissent. Jefferson and Madison viewed free speech as a natural right, a concept traced to Aristotle, refined by St. Augustine, and later championed by John Locke and John Stuart Mill. They argued that freedom of thought is inherent, pre-political, and essential to human dignity.

Madison emphasized the phrase “the freedom of speech” to underscore its existence prior to government. While some claim rights derive from consensus, Natural Law asserts they stem from individual humanity, independent of governance. The term “free speech” does not imply costlessness but rather absence of governmental interference. If a neighbor shouts over you, you can respond louder; if the police silence you, fear follows.

Could a late-night comedian’s suspension stem from employer judgment or government pressure? If the former, no free speech issue arises. If the latter, the government violates First Amendment principles by indirectly controlling content. Such actions “chill” expression, deterring individuals from speaking out.

Today, there is no legal category of “hate speech.” There are hateful, offensive, disgusting, or evil words, but all remain protected unless tied to violence or imminent threats. The First Amendment’s purpose is to shield speech others find repulsive, as the speech we cherish requires no protection.

Government, inherently opposed to freedom, seeks to silence critics. In the current Uniparty system, political factions perpetuate war, debt, and surveillance while eroding liberty. Yet, the solution to disagreeable speech is not suppression. A government that silences what you hate today will soon suppress what you love 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.