“I disagree with what you say but will defend to the death your right to say it.”
— Voltaire (1694-1778)
When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists’ grievances with the British government. Notably absent were any complaints about infringement upon speech.
In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king — as Jefferson’s were in the Declaration — they constituted treason.
Needless to say, Jefferson and his 55 colleagues who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.
Of course, the colonists won the war, and, six years afterward, the 13 states voluntarily ratified the Constitution. Two years after ratification, the Constitution was amended by adding the Bill of Rights.
James Madison, who drafted the Bill of Rights, insisted upon referring to speech as “the” freedom of speech, so as to emphasize that it preexisted the government. He believed the freedom of speech was one of the inalienable rights Jefferson wrote about in the Declaration.
Stated differently, each of the ratifiers of the Bill of Rights manifested in writing their unambiguous understanding that the freedom of speech is a natural right — personal to every human. It does not come from the government. It comes from within us. It cannot be taken away by legislation or executive command. It does not require a permission slip.
Yet, a mere seven years later, during the presidency of John Adams, Congress enacted the Alien and Sedition Acts, which punished speech critical of the government.
How could the same generation — in some cases, the same human beings — that prohibited congressional infringement upon speech have enacted a statute that punished speech?
To some of the framers — the Federalists, who wanted a leviathan central government as we have today — infringing upon the freedom of speech meant only silencing it before it was uttered. Today, this is called prior restraint, and the Supreme Court has essentially outlawed it.
To the anti-federalists — who believed the central government was a limited voluntary compact of states — the First Amendment prohibited Congress from interfering with or punishing any speech.
The Adams administration indicted, prosecuted and convicted anti-federalists — among them a congressman — for their critical speech.
When Jefferson won the presidency and the anti-federalists won control of Congress, the Federalists repealed three of the four Alien and Sedition Acts on the eve of their departure from congressional control, lest any be used against them.
During the Civil War, President Abraham Lincoln locked up hundreds of journalists in the North — including a congressman — who were critical of his war efforts. During World War I, President Woodrow Wilson arrested students for reading the Declaration of Independence aloud at draft offices or singing German beer hall songs.
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