 Our show this weekend features a phenomenal talk from Judge Andrew Napolitano, the great constitutional law scholar and judicial analyst at Fox News, and we're very honored and pleased to have him not only as a Mises Institute board member, but also as a faculty member during our week-long Mises U program in the summer where he just finished teaching a class on the Constitution and the free market to our students, but he also gave a talk that we could really excellent talk on the First Amendment and what it really means and how it interacts with the rest of the Constitution. So if you like Judge Andrew Napolitano and you're interested in the First Amendment, stay tuned for a great talk. The class that I will be teaching this week is the Constitution on a Free Market, and in that class we will examine the four parts of the Constitution that have been grossly exaggerated by the Congress, by the various presidents, and by the courts, and those are the areas that permit the Congress to interfere with the free market, the Commerce Clause, the spending power, the taxing power, and the contracts clause. But tonight we will discuss something, a very simple declaratory statement in the Constitution and how it came about and what it means today. This is, of course, from the First Amendment, and most of you know this line, just like you know all men are created equal and endowed by their Creator with certain inalienable rights, and among these are life, liberty, and the pursuit of happiness, Jefferson and the Declaration of Independence. This is Madison in the First Amendment. Congress shall make no law abridging the freedom of speech. A simple declaratory statement, and I often start by asking what I candidly confess as a trick question, and that is, which is the most important word up there? Now when I ask this to law students who've already studied the First Amendment, most of them will say, well, it's got to be freedom. Some will say, well, it must be speech, or what the heck is left? It's got to be Congress. So right there is the most important word up there, the freedom of speech. Why is that so important? Well, that makes known to posterity the view of the framers that the freedom of speech preceded the Congress. It came from some source other than the Congress. This declaratory statement is what we call a negative right. It guarantees you, if the guarantee were worth the paper it was written on, it guarantees you that Congress will not interfere with the freedom of speech. It doesn't say Congress shall grant freedom of speech. It doesn't say Congress shall create freedom of speech. It says Congress shall make no law abridging the freedom of speech, implying that the freedom of speech comes from somewhere other than the Congress. So where does it come from? So I'm writing down NL for natural law tradition. I'm writing down PS for positivism. This is the enemy. And I'm writing down NAP, not because it's the first syllable of my last name, but because it stands for the non-aggression principle. So the little bit of history here. This is an amendment to the Constitution. This is not in the Constitution. This was not in the Constitution when it was ratified by the ratifying conventions in the 13 states in 1788 and 1789. But it was pretty much promised by the people who wrote the Constitution. The Constitution was written in secret in the summer of 1787 in Philadelphia. James Madison kept the notes and James Madison was the scrivener and much of James Madison's language found its way into the Constitution. The Constitution is ratified with the idea that there will be added some amendments to it which will protect individual rights from interference by the federal government. So that's why this says Congress. It doesn't say the states shall make no law. It doesn't say the president shall make no law. It doesn't say the courts shall make no law. It says Congress shall make no law because the fear of Madison and Jefferson was that Congress would get out of control. So now George Washington is the president of the United States and James Madison known as Little Jimmy. I would like to stand next to Little Jimmy. He was about four foot eight. Even I would look like a basketball player next to Little Jimmy. Little Jimmy was a congressman from Virginia who was the chairman of the committee assigned, imagine this, to write the first ten amendments to the Constitution of the United States. And Little Jimmy initially was persuaded by another enemy of ours. We actually have an expert in the room on this enemy, Professor Tom Di Lorenzo is the country's expert on Alexander Hamilton. Hamilton persuaded Little Jimmy that we didn't need amendments to the Constitution. Could you imagine the government interfering with fundamental liberties after the war we just fought against the king? It's not going to happen. Wait a minute. Didn't you want George Washington to become a king? Well, yeah, yeah, right, right. Didn't you want him to serve for the rest of his life? Yeah, all right, all right. Didn't you want some central bank that was going to regulate all economic activity unaccountable to enrich itself? Well, yeah, all right, but we don't need these amendments to the Constitution. Thomas Jefferson persuaded Madison that we did. And the actual language that survives into the First Amendment was suggested to Madison by Jefferson. So Madison and the Committee of the House of Representatives originally proposed 12 amendments to the Constitution. They were abbreviated down to 10. And those 10 are commonly referred to as the Bill of Rights. They all contain negative rights. That is, they all restrain the government. They don't grant you anything. They presume, here it is, they presume that the right exists. They deny the government the ability to interfere with the right. Now, presuming that the right exists gives rise to the following question. Where does it come from? Positivism, which is a theory of law that says the law means whatever the lawgiver says it means, stands for the proposition that in a free society, the majority decides what rights are. And the majority can command the government to refrain from interfering with rights or permit the government to interfere with them. The attraction of positivism is that the majority always prevails. Of course, positivism forgets that the majority can be as tyrannical towards human freedom as a madman can. But positivism, or I give it the most important word in here, is Congress. Because under the positivist theory of law, Congress can write any law, regulate any behavior, tax any event, so long as it follows its own internal procedures, and so long as it does it in a lawful manner, stated differently, there would be no liberty whatsoever if the positivists had their way. Under the non-aggression principle, with which most of you are undoubtedly familiar, the freedom of speech derives from the private ownership of property. You can stand on your own property and say whatever you want. If you own a printing press or a printer, it's yours. You can do with it whatever you want, and the government can't interfere with it. Under the natural law tradition, this is Thomas Aquinas, this is Thomas Moore, this is Aristotle, this is Augustine, this is Martin Luther King Jr., our rights come from our humanities. It's also Jefferson and John Locke, although there's some of John Locke in here. It's not a philosophy lecture, and I don't want to confuse you with this. And under the natural law tradition, there are many different schools of thought. Just as under positivism, there are a half dozen schools of thought. There's only one school of thought under this, and we all understand it. Leave me alone. Even to the government, leave me alone. One of the great defenders in the modern era of this, seated in the first row, Professor Walter Block, I used to say, used to say that wherever I go, I'm the most libertarian person in the room, except when Walter Block is there. Now that he's supporting Donald Trump, I don't have to say that anymore. All right, back to this. The states ratify this. Now in here, in the space that I've removed, are the religion clauses, and in here are the right to petition the government for redress of grievances and the free association clauses. I just want to talk about speech. So this is the language that survives today. The presence of the makes it clear that the framers understood from the natural law tradition that the freedom pre-existed the government and came from our humanity. Jefferson made this argument in the Declaration of Independence. I recited the language for you a few minutes ago, and it's the iconic phrase, all men are created equal and endowed by their creator. You don't have to believe in God to accept natural law theory, though much of it is Catholic in origin and endowed by their creator with certain inalienable rights and among these is life, liberty and the pursuit of happiness. Endowed by their creator and inalienable rights is sufficient language for us to argue that the country accepted natural law tradition at its birth and that this is a manifestation of it. The fact that the framers understood that the freedom of speech pre-existed the Congress and the government that they were creating. So now we ask a question. If the states which ratified this, ratified another amendment rescinding it, would we still have the freedom of speech? And the answer to that is it depends upon which of these theories you accept. If you accept the non-aggression principle, you'd have the freedom of speech on property that you owned. If you accept positivism, there would be no freedom of speech because under positivism the law is whatever the law giver says it is. There is no restraint on the law giver. There is no natural restraint on the law giver. There's no higher law restraint on the law giver under positivism. So under positivism, which is what almost everyone in the government today embraces even though they have taken an oath to uphold the Constitution, they all embrace positivism because they all believe that the government can write any law and regulate any behavior and tax any event. But under positivism, if an amendment were ratified that rescinded the First Amendment, then there would be no freedom of speech. Under natural law, of course, this whole thing is irrelevant because we have the freedom of speech that comes from our humanity. Under one of these natural law traditions, if the First Amendment were rescinded, the government would collapse because under one of these natural law traditions, and again there are a half dozen of them, if you remove an essential feature for which we came together as a society and agreed on a government, namely protecting the freedom of speech, then the government is no longer one of moral relevance and cannot command any obedience or write any laws. All of this, of course, has expanded. This is the rare area of the Constitution that has actually gotten a little better with the passage of time. So Congress today means all government. Why is that? Well, Woodrow Wilson in World War I sent the precursor to the FBI to arrest people for singing German beer hall songs while we were fighting a war against Germany. And when confronted with the First Amendment, he said it only restrains Congress. It doesn't restrain me. I'm the president. Well, wait a minute. There's another clause of the Constitution that says all legislative power, not some, all legislative power shall be delegated to a Congress. How can you write a law? Well, I'm just waging war as the Commander-in-Chief. Does this sound familiar to you? And I have powers as Commander-in-Chief which are not written down in the Constitution. So from that we have a series of Supreme Court opinions that say even though this says Congress, it means Congress, the president and the courts, even though it refers to the federal government because it says Congress, it really means no government. So a board of education can't abridge the freedom of speech. A city or a town can't abridge the freedom of speech. The states can't abridge the freedom of speech and no apparatus in the federal government can abridge the freedom of speech. Law doesn't necessarily mean law. It could be a procedure. It could be a judicial opinion. It does not necessarily limited to a statute. So if we reword the first line to the way it stands today, it would read, no government shall do anything that abridges the freedom of speech. This is an expansion of the natural right to speak because the original meaning of this was limiting it to a statute. That would have permitted the government to do things other than by statute. Now, this was enacted in 1791. In 1798, seven years later, the Congress enacted the Alien and Sedition Acts. The Alien and Sedition Acts made it a felony to utter words to bring the government or the president or the Congress into ill repute. How could, that's the wrong word, ill repute, disrepute. How could the same generation, in some cases the same human being that wrote, Congress shall make no law, abridging the freedom of speech, seven years later enact a statute that abridged the freedom of speech. Well, 1798 was just a few years after Louis XVI's head was cut off and the French Revolution and they're spread through the United States of America, something that is inconceivable to us today. Fear of the French. And this fear of the French caused them to enact the Alien and Sedition Acts, which basically said we're looking for people to live here. Translation, we need taxpayers. We're looking for people to live here. If you come here and live here in own real estate and you're over 21, you can become a citizen immediately, unless you're French. Then you have to wait 14 years before you can become a citizen. And by the way, once you come here and for everybody else that's here, be careful what you say. Don't bring the government into disrepute. My dear friend Lou Rockwell has opined that this is an example of what Saint Augustine warned about when he warned about libido dominandi. Not the kind of libido you might be thinking about. Libido dominandi is the lust to dominate. It is part of original sin. It is something we all have. It's part of human nature. It's the reason there needs to be a restraint on government. People like Ron Paul or Lou Rockwell or Walter Block, Ariandre Napolitano, don't get elected to government because we would shrink it. In the case of Block and me, we would shrink it out of existence. But most people that run for government are more your Hillary Clinton types or even George W. Bush types who really want to expand it to tell people how to live and to take their property from them and redistribute it under their standards. But in 1798 it was the same people that did this, did that. One of my favorite stories, just as a little aside, is Congressman Matthew Lyons, a firebrand from Vermont, an anti-Federalist, Jeffersonian in the House of Representatives. Vermont had one representative in the House at the time. Decided he would challenge the constitutionality of the Alien and Sedition Act. Now, in order to challenge the constitutionality of a federal criminal law, you have to break the law. You can't just file a piece of paper in court saying, I think that's unconstitutional because there's a clause in the constitution called the case and controversy clause which requires that the courts only rule on real cases and controversies, not on hypothetical disputes. So Congressman Lyons decided that he would bring to the attention of the public something that was already well known, that John Adams, the President of the United States, was fat. You can't make this stuff up. So in order to mock the President's waistline, bearing in mind that everybody knew he was fat, including Mrs. Adams, and President Adams wore a purple robe that Mrs. Adams made for him. And when she didn't like the way the purple robe looked, it looked a little too simple for her. She sewed gold epulets on the shoulders. So Congressman Lyons referred to President Adams as his pomposity. And that didn't get him anywhere. And by the way, he made these allegations in public because if he made them on the floor of the Congress, it can't be prosecuted because the speech and debate clause in the Constitution insulates members of Congress from the consequences of what they say on the floor of the House. When Teddy Kennedy Jr. was stopped for drunk driving at three o'clock in the morning when he ran his car into a tree, he told the police he was going to the floor of the Congress because the speech and debate clause covers going to Congress what you say there and leaving. The police didn't believe him. It was fanciful. He was prosecuted. He pleaded guilty at the end of the story. So back to Congressman Lyons, he took one look at the President and said outside the Capitol building, referred to the President as his rotundity. For that, he was indicted, prosecuted. Everybody thought it was a joke, convicted of violating the Alien and Sedition Act. Spent two years in a dungeon in Western Massachusetts and then did something while there, which will be familiar to some of you, if you're from New Orleans, Boston, Chicago, or Hudson County, New Jersey, what I'm now about to tell you is familiar to you. Congressman Lyons ran for re-election from his jail cell and he won. When he got back to Washington, he was expecting that his rotundity would still be in the White House. Instead, the tall, thin, elegant, freedom-loving, raven-haired Thomas Jefferson was in the White House who promptly pardoned Congressman Lyons so that he could serve in the House of Representatives. Jefferson, of course, declined to enforce the Alien and Sedition Act. There wasn't an Alien and Sedition Act by the time Jefferson was president because when Jefferson defeated Adams, the Federalists who controlled the Congress who enacted the Alien and Sedition Act quickly repealed it for fear that Jefferson might use it on them. Forgetting that Jefferson, of course, had condemned it and said he would never prosecute anybody under it. He pardoned the people who had been convicted under it and he returned all the fines that the people had paid. Abridging the freedom of speech. What is meant by speech? We get back to this now. So today, speech means expression. You can think of all the ways that you can express an idea without actually using language. This has been expanded, obviously, to include that, but it has also been expanded to include the opposite of speech. What would be an example of the opposite of speech? When Thomas Moore was charged with treason and he chose to defend himself, the act of treason was the refusal to consent that the king, Henry VIII, was the head of the church on earth and he made these famous lines to the jury. Some men say the earth is round and some men say it is flat. This is in 1535. So this issue of roundness or flatness is current at the time, but if it is flat, can the parliament make it round? And if it is round, can the king's command make it flat? Now, of course, everybody knows the answers to those questions. Common sense tells them the answers. The parliament and the king for all of their power can't change the shape of the earth, but it was an argument for this. It was an argument for the natural law, that the same natural law, which gives us the right to make free choices, I'm pointing to my heart, the origin of the natural law, the right to make free choices without a government permission slip, the corollary to that is a restraint on the government when it wants to interfere with our natural rights. What natural right was Henry interfering with when he demanded that Thomas sign the oath of supremacy? The answer to that question is the same answer to the question of what is the opposite of speech? Silence. So Congress shall make no law abridging this freedom of speech. Not only says you can say what you want, it also says that the government cannot force you to speak because you have a natural right to remain silent. Of course, this natural right was violated in Thomas's case and Thomas Moore's case, and in the case of thousands of others who were butchered by Henry because they too refused to sign the oath of supremacy. This is very important today, the right to silence and the right to free speech because the government will sometimes do things to chill speech to give you second thoughts before you express yourself. Now, I often, when I give these talks, where my jacket is, my iPhone's in the pocket, I'll have to take it out, you all know what an iPhone looks like here. So I often hold up, may I Ricardo? Okay, hold up my iPhone and I say I want everybody to turn their iPhone on, even though today of course you can't turn it off. Turn it on because I want President Obama and the NSA to hear everything I'm about to say. Everybody laughs, but today of course it's not a joke because whether it's on or off, that is whether the screen is dark or not, it is still a recording device which will record a reasonable distance from its location, whatever it hears, and will also tell the government wherever you go. So if you know the government is going to hear whatever you say, will you think twice, thank you Ricardo, Ricardo, will you think twice about saying it? That's called chilling government behavior on its face neutral intended to give you pause before you talk about or criticize the government. That is unconstitutional, that is subsumed in this as well. So you can see how this has expanded substantially from the simple declaratory statement, Congress shall make no law abridging the freedom of speech. This means all government. This means do anything using the power of the government. This means that we are wedded to this, that this freedom either comes from here, from our natural right, from our ability to make free choices without seeking a government permission to live in. That's only one of them. This is just speech. In this amendment, there are four others that are in the same category and the other amendments proceeding down. What follows this amendment? The second amendment, which is the right to keep and bear arms, which is of course not the right to shoot deer, it's the right to shoot tyrants when they take over the government. The third amendment, which is the right to keep the government out of your property when they want to use it for military purposes, they have to have your expressed permission. The fourth amendment, the quintessentially American one, which Justice Brandeis called the right to be let alone, the right to say the government, that's my threshold, stay the blank out. All of these rights are negative rights, that is they prevent the government from interfering with a pre-existing liberty, pre-existing because it comes from our humanity, pre-existing because it's on our property. Three essential elements for property. If one of these is missing, it's not private property. The right to use to its highest and best use. The right to alienate, lease, mortgage, sell. And here's my favorite, the right to exclude, the right to say to anybody, including the government, you can't come on this property. This of course forms the basis for our rights as well because a private property is truly private. If we truly own it, then we can keep anybody off it, including the government. Fourth amendment gives you the circumstances under which the government can come on it and the government must jump through a lot of hoops including going to a neutral judge and explaining to the judge under oath the existence of criminal activity on the property and why there's no other means than invading the property for them to get on it. I love this subject matter because it is the rare, happy subject matter about the Constitution where I can stand here and explain to you as I'm attempting to do now how the freedom of speech has expanded, not contracted since this was enacted in 1791. But don't get your hopes up because this is the only one of these rights that has expanded far beyond how it was understood in 1791. And I will also tell you that this Congress was initially interpreted literally not only by Woodrow Wilson during World War I but even in the Washington Adams, Jefferson, Madison Monroe years so that the states could make laws abridging the freedom of speech rather than the Congress. This didn't expand in its meaning until 1868 when the post-Civil War amendments came down and were ratified and the courts began interpreting them and then they began this expansive interpretation of the entire meaning of the phrase. So now if I were to say if the states ratified an amendment nullifying the first amendment, do we still have the freedom of speech, you can give a mature answer. The answer is if you accept the theory under which the government was initially formed in the Declaration of Independence, yes, we would still have the freedom of speech. If you accept what has become of our government, which is that the majority rules unrestrained, write any law, regulate any behavior, tax any event, then there would be no freedom of speech. And of course these two natural law and non-aggression principles are sisters or cousins because they frequently end up in the same place. The government of course tries to make this appear attractive and its attraction is the argument goes something like this. We're a democracy and we all sink or swim together. I'm making the government's argument, it's not something I believe. And in a democracy the majority rules and the minority goes along with it. And it is beautiful that we can always change our leaders and change our laws by majority rule. And therefore we're going to have absolute majority rule. Why should we be governed by the dead hand of white landowners that lived in this era 1791 to 1798 when we have contemporary problems today that they couldn't have imagined. It's the same type of argument that was made when the Patriot Act was enacted, the most abominable piece of legislation ever enacted by Congress since the Alienation Sedition Act. The Patriot Act, pure, pure positivism, permitted FBI agents to write their own search warrants even though the Fourth Amendment requires that only judges can issue search warrants based upon probable cause. And the Patriot Act made it a crime to tell anyone that you received an FBI agent written search warrant. So two FBI agents walk into a library in Bridgeport, Connecticut. I know this sounds like a joke. Two guys walk into a bar and one of them has a duck under his arm. That's the opening line of the joke. This is two FBI agents walk into a library in Bridgeport, Connecticut and one of them has a self-written search warrant under the arm. What do I mean by self-written search warrant? The one who had it under his arm received authority from the other one to search the library. Why do they even bother having two of them? Why not just let one of them do what they want? They presented this self-written search warrant to a volunteer librarian who was 86 years old and partially deaf. These FBI agents were in their 30s. She says to him, who the hell are you? What do you want? I have the search warrant. You're not allowed to tell anybody about it. What? She hands the search warrant to her 75-year-old assistant and they try and figure out what it means. We're upon the two of them are arrested for violating the Clause of the Patriot Act that permits, that prohibits speech, that prohibits telling anyone, anyone meaning anyone, your colleague, your spouse, your priest and confessional, your lawyer in her or his office, even a judge in a public courtroom. By the way, they were at the library to see who had taken out certain books. So let me get this straight. It's a government library. The government owns the shelves. The government bought the book, bought the books. There can be something wrong or of interest to the FBI. Who took these books out? Yes, according to the Patriot Act. Two years later, we're in a federal courtroom in Bridgeport, Connecticut and a very courageous federal judge calls the defense counsel and the prosecutors in the day before the trial and she says to them, you still want to prosecute these two people. This one is 88 and the other one is 78. You still want to prosecute them. Yes. Okay. I'm about to declare the Patriot Act unconstitutional. Do you still want to prosecute them? We have to call Washington. Call Washington, come back the next day and the government withdraws the indictment. But before she let them withdraw the indictment, because once they did, there'd be no case or controversy. She would lose jurisdiction. Before she let them withdraw the indictment, she filed this opinion declaring the Patriot Act unconstitutional. At least that portion of it, which makes it a crime to speak. So what does the government do? Did the government appeal that? Oh no. The government didn't appeal it because they knew they'd lose that appeal. And instead of just having one single federal judge in Bridgeport, Connecticut, saying you can't punish speech, particularly speech about the government, particularly speech about a document the government has handed you, if the Second Circuit upheld that, then that would have been the law in the whole North or in the Atlantic States of the United States. And if the Supreme Court ever upheld it, it would be the law of the land and the Patriot Act would be gone. So rather than appealing this decision, they just don't use it in Connecticut. They continue to act as if it doesn't exist, and they continue to warn you, we are giving you, they don't call it a self written search, they call it a national security letter. Read 1984, George Orwell was so prescient about the meaning of words. I am handing you a national security letter and warning you, if you tell anybody about this, you're facing five years in a federal prison. Never mind, you'll be indicted and tried, you can elevate a defense. No, you're going to go to jail for five years. Does the FBI still say that? Yes, they do, except in Connecticut, because they might end up before this same federal judge. When a federal trial judge makes issues in opinion, other federal trial judges are not required to abide by it because they're of the same level. But if a federal appeals court issues the decision, then all the trial judges that are subject to that appeals court have to follow it. So they have lists of judges that they're trying to avoid, because they know that these judges think like you and I do, that the Constitution really means what it says.