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President Trump and the Freedom of Speech
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When James Madison drafted the First Amendment — “Congress shall make no law … abridging the freedom of speech” — he made sure to use the article “the” in front of the word “freedom.” What seemed normal to him and superfluous to moderns was actually a profound signal that has resonated for 227 years. The signal was that because the freedom of speech existed before the government that was formed to protect it came into existence, it does not have its origins in government.

The freedom of speech has its origins in our humanity. It is a natural right. It exists in the absence of government. By the exercise of normal human reasoning, all rational people are drawn to exercise this freedom. Madison understood this. He could have written, “Congress shall grant freedom of speech.” He did not because that freedom is not Congress’ to grant or to abridge.

I am presenting this thumbnail sketch of the historical and philosophical underpinnings of the freedom of speech by way of background to a hot dispute now raging off the front pages. The dispute addresses whether the president of the United States can use federal courts to block the exercise of this right. CBS News wants to air an interview with an adult-film actress who alleges a sexual relationship with Donald Trump — a relationship he denies — and President Trump wants to prevent the airing.

The actress, whose stage name is Stormy Daniels, signed an agreement in October 2016 to accept $130,000 in return for remaining silent about her alleged sexual relationship with Trump, which she claims occurred shortly after the birth of his son Barron, who is now almost 12. The lawyer who negotiated the agreement with Daniels’ lawyer claimed that he was doing this on his own, that the hush money came from him and not Trump, and that Trump was not his client.

That claim raises profound campaign finance issues, but they are not the point of this piece. The point of this piece is about the freedom of speech.

Daniels, whose present lawyers have sued to invalidate the agreement, recently gave an interview about her relationship with Trump to the CBS News program “60 Minutes.” CBS plans to air that interview in the coming weeks, and Trump wants to prevent that from happening. The stated legal basis for Trump’s lawyers asking a court to block the broadcast is the existence of the hush agreement, which, in plain words, bars Daniels from discussing anything about her alleged sexual relationship with Trump. Obviously, Trump does not want any allegations from Daniels — true or false — to become a topic of public conversation and a distraction to his presidency.

Can the president legally persuade a federal court to enjoin the airing of an interview? In a word: no. Here is the back story.

ORDER IT NOW

In 1931, in a famous case called Near v. Minnesota, the Supreme Court generally rejected the concept of “prior restraint.” Prior restraint is the use of the courts to prevent the media from disseminating materials they already have. The Near case dealt with an anti-Catholic, anti-Semitic, anti-African-American newspaper that Minnesota state courts had silenced. The Supreme Court overruled the state courts and held that the freedom of speech presumes that individuals will decide for themselves what to read and hear and the First Amendment keeps the government — which here includes the courts — from censoring the marketplace of ideas, even hateful ideas.

Forty years later, in the Pentagon Papers case, the Supreme Court made a similar ruling. There, Daniel Ellsberg, an employee of a contractor to the Department of Defense, stole highly classified documents that demonstrated that then-President Lyndon B. Johnson and his generals had knowingly deceived the American public about the war in Vietnam.

When Ellsberg gave the documents to The New York Times and The Washington Post, the Nixon administration hurriedly persuaded a federal judge in New York to enjoin the Times from publishing the documents. Before a federal judge in Washington could rule on a similar request — and bypassing the intermediate appellate courts — the Supreme Court took the case and ruled in favor of the freedom of speech and reinforced the judicial condemnation of prior restraint.

But the Pentagon Papers ruling went a step further than the Near opinion had. It ruled that no matter how a media outlet has acquired matters material to the public interest — even by theft of top-secret documents — the outlet is free to publish them. This, of course, does not absolve the thief (though the case against Ellsberg was dismissed because of FBI misconduct), but it makes clear that no court can block the media from revealing what they reasonably believe the public wants to hear.

Now back to the president and the adult-film star. Because whatever Daniels said to CBS arguably speaks to Trump’s fitness for office, individuals have the right to learn of it, to hear Trump’s denials and to form their own opinions. In Trump’s case, he has a bigger megaphone than CBS does — via his adroit use of social media — and the volume and ferocity of his denials might carry the day.

But the point here is that individuals can make up their own minds about the president’s character; they don’t have to endure the prior restraint of a court’s silencing a voice in the debate, even a tawdry voice.

What if the hush money agreement Daniels signed — and the president did not — is valid? Could that trigger prior restraint? In a word: no. The Madisonian values underpinning the freedom of speech, as articulated consistently by the Supreme Court, will prevail. Anything short of that would prefer government censorship over personal choices in matters of speech, a preference the First Amendment profoundly rejects.

Copyright 2018 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Censorship, Constitutional Theory, Donald Trump 
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  1. anonymous • Disclaimer says:

    ” The point of this piece is about the freedom of speech.” I doubt it. Having read “Judge” critically here for several months, I believe that the point is to highlight the scandal du jour. Many of his columns are structured like this one, Establishment messaging wrapped in a civics lesson taught by this supposed “Freedom Watcher.”

    If Mr. Napolitano believes what he says here about our natural right to speak, hear, and think freely, then why on February 22 was he wetting his robe over “the Russians [running] unchecked through our computer systems and the American marketplaces of ideas”?

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    • Replies: @WorkingClass

    Many of his columns are structured like this one, Establishment messaging wrapped in a civics lesson taught by this supposed “Freedom Watcher.”
     
    Yes. Exactly.
    This guy is a swamp creature.
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  2. Maybe in heaven, or Wakanda, people have free speech in the same way they have arms and legs. Everywhere else free speech is limited by government. All it takes for the constitution to become meaningless is for the government to fail to enforce it. That’s where we are now.

    FU judge. I know which side you are on. Prattling on about the constitution will not cover your nasty ass.

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  3. @anonymous
    " The point of this piece is about the freedom of speech." I doubt it. Having read "Judge" critically here for several months, I believe that the point is to highlight the scandal du jour. Many of his columns are structured like this one, Establishment messaging wrapped in a civics lesson taught by this supposed "Freedom Watcher."

    If Mr. Napolitano believes what he says here about our natural right to speak, hear, and think freely, then why on February 22 was he wetting his robe over “the Russians [running] unchecked through our computer systems and the American marketplaces of ideas"?

    Many of his columns are structured like this one, Establishment messaging wrapped in a civics lesson taught by this supposed “Freedom Watcher.”

    Yes. Exactly.
    This guy is a swamp creature.

    Read More
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  4. On a related note: the freedom of the press is that freedom possessed by people to publish their views. It comes from an age when people would print off handbills with a small press and distribute those bills. It does not mean that there is some sort of entity named “The Press” and that this “The Press” must be “free”.

    Today’s equivalent is, of course, the blog.

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    • Replies: @anonymous
    Not sure where you're coming from -- neither the column nor the Constitution uses "press" as opposed to speech.

    I hope you're not endorsing the notion of Mr. Pompeo that the freedom of speech is limited to American publishers. I have a natural right to see and hear, irrespective of the speech's source or motive. Mr. Napolitano pretends to agree, yet he cheerleads the Establishment construction of an iron curtain around "our computer systems and the American marketplaces of ideas."

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  5. So why then is any non-disparage or NDA in the land valid?

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  6. anonymous • Disclaimer says:
    @Dave from Oz
    On a related note: the freedom of the press is that freedom possessed by people to publish their views. It comes from an age when people would print off handbills with a small press and distribute those bills. It does not mean that there is some sort of entity named "The Press" and that this "The Press" must be "free".

    Today's equivalent is, of course, the blog.

    Not sure where you’re coming from — neither the column nor the Constitution uses “press” as opposed to speech.

    I hope you’re not endorsing the notion of Mr. Pompeo that the freedom of speech is limited to American publishers. I have a natural right to see and hear, irrespective of the speech’s source or motive. Mr. Napolitano pretends to agree, yet he cheerleads the Establishment construction of an iron curtain around “our computer systems and the American marketplaces of ideas.”

    Read More
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  7. I take it then, that non-disclosure agreements with corporations are similarly invalid on the basis of freedom of speech? Seems to absolve Snowden and all the plethora of punished whistleblowers who spoke out. Yet it seems that speech is not actually free in all these cases, after all, de facto.

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    • Replies: @WorkingClass
    OUCH! Stop making sense!
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  8. @Fran Macadam
    I take it then, that non-disclosure agreements with corporations are similarly invalid on the basis of freedom of speech? Seems to absolve Snowden and all the plethora of punished whistleblowers who spoke out. Yet it seems that speech is not actually free in all these cases, after all, de facto.

    OUCH! Stop making sense!

    Read More
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