by Andrew P. Napolitano, Lew Rockwell:
Last week, the chair of the Federal Communications Commission threatened to rescind the broadcast licenses of media entities that do not relate events in Iran or Ukraine as the Trump administration would like them to be related. He also attacked The Wall Street Journal and The New York Times for the same reasons. This followed by one day a verbal attack on CNN by the Secretary of Defense who made known his bitter unhappiness with CNN’s coverage of the Iran war.
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Yet, CNN is not regulated by the FCC, which only regulates broadcast media — not cable or streaming; and newspapers, thanks be to God, are totally unregulated.
So, what’s going on here?
What’s going on is chilling. Chilling is government behavior toward speech that is intended to give the speaker pause or fear such that the speaker has second thoughts about speaking. Chilling is prohibited by the First Amendment and has been repudiated by the Supreme Court.
Here is the backstory.
The freedoms of speech and of the press are expressly protected by the First Amendment and have enjoyed wide reinforcement by the courts since the mid-1960s. The original Constitution lacked an express protection for public speech and for the printed word. Yet, the Federalists who were the prime political movers in the ratification of the Constitution by the states feared that some of the states would leave the union if a bill of restraints were not imposed on the new federal government by way of amendments.
The critical historical figure here is James Madison, who was initially a Federalist at the creation of the republic but became an anti-Federalist soon thereafter. Madison became repulsed at the federal government taking control of the banking system with a wholly owned bank, for which he argued fiercely there is no authority in the Constitution.
As chair of the House of Representatives committee to draft a bill of restraints, Madison embraced language from the Anti-Federalist Papers, which were a series of pamphlets arguing against ratification of the Constitution. Madison — who wrote the Constitution and authored about a third of the Federalist Papers that argued in favor of ratification — saw the grasping hand of government growth, and it was enough for him to embrace in part the arguments made against his Constitution.
Part of Madison’s genius was to call the bill of restraints a Bill of Rights and to ground much of it in natural law. Natural law teaches that all human adults with unimpaired mental faculties are able to discern right from wrong, good from evil, and truth from falsity using human reason, free from government interference.
Stated differently, the Bill of Rights does not create rights; it presumes their preexistence, and it prevents the government from interfering with them. Thus, the First Amendment does not say that Congress shall grant the freedom of speech or of the press; it says that Congress shall make no law abridging the freedom of speech or of the press.
Madison insisted that the word “the” precede the word “freedom” in order to emphasize its existence before the government came into being. Where did the freedoms of speech and press originate? They originated in our humanity.
