by Andrew P. Napolitano, Lew Rockwell:

In 200-plus years of interpreting the free speech clause of the First Amendment, the courts have narrowed and expanded its scope. The Supreme Court employed a particularly narrow approach during much of the last century, through two world wars and then the Red Scare in the 1950s.

Thankfully, in the 1960s, the Warren Court began a remarkable and thus far unimpeded march toward compelling the government to tolerate open, wide, caustic and even threatening speech.

When crafting the First Amendment with its iconic speech clause — “Congress shall make no law … abridging the freedom of speech” — James Madison insisted that the word “the” precede the word “freedom” so as to make clear the understanding of the drafters and ratifiers that the freedom of speech existed before the government did. This presumption — that speech is pre-political — has a theoretical and a practical application.