[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

How Everything is Racist, And You’re a Terrible Person

The big influence of 'Big Pink'

Documents Reveal Two US Soldiers Overheard Plot To Kill JFK—and Were Committed After Reporting It

Fox's Perino: Strzok marriage questions by GOP lawmaker 'felt like a public lynching (Relly? I don't think so, Dana!'

Trump: Strzok's testimony 'a disgrace to our country'

Trump Is Right: Mueller’s Latest Indictment Suggests He’s Conducting A Witch Hunt

Constitutional Conservatives Fail the Drug Test

Chipped Tires

A collision of views as Bath Township calls artist's work 'junk,' heads to court

How Elected Libertarians Are Making the World More Free

The fundamental contradiction of libertarianism

Dinosaur and man walking together

You're killin' me, Smalls. 'The Sandlot' celebrates 25th anniversary

Massachusetts police officer killed after attacked with rock, shot with own gun, officials say

Mike Rowe Responds to Critics Who Don't Like His Move to Christian TV Network

Police: Richmond homeowner shoots intruder several times (San Francisco)

Internet Trolls Really Are Psychos

Adam Smith to Richard Spencer: Why Libertarians turn to the Alt-Right

Libertarians’ reality problem: How an estrangement from history yields abject failure

Family Calls for Help with Suicidal Child, Cops Show Up and Kill Him

Jury Nullifies Georgia Weed Law, Finds Man Not Guilty Despite Admittedly Growing Marijuana

Former Clinton White House Staffer: It's 'Tempting to Beat the Crap out of Rand Paul'

Reality vs Fantasy: President Trump warns Europe is ‘losing its culture’ by allowing ‘millions and millions’ of migrants, PM Theresa May praises their’ fantastic contribution’

Globalization?

NATO’s Problem Is that Europeans Won’t Fight

Trump isn’t attacking NATO. He’s strengthening it.

North Carolina Scientist Proposes Using Cannabis to Combat Invasive Species

Libertarians on Liberty’s Post suppress dissent – Sad.

Why Internet Libertarians are becoming Fascists

Libertarians Are Insane

Julian Assange, CrowdStrike, and the Russian Hack That Wasn’t

Open Question: What is a Christian Libertarian?

Pakistan Hacked the DNC Server and Maybe Hillary’s Illegal Server Too

Indiana has spent over $20 million on cleanup of failed Pence family gas stations

New Mueller indictment reveals that a congressional candidate requested stolen documents from Russian hackers in 2016

New Trump Range Rover promo video with the Queen

The Short, Unhappy Life of a Libertarian Paradise

Let's be honest, America: Dogs are parasites, not man's best friend

Meet The Air Force's $1200 Cup Of Coffee

Rosenstein Delivers Indictments For 12 Russians – Then Buries in Lock-box of DOJ National Security Division…

This Honda lawn mower will go 150 mph

Cop Who Declined to Help Puerto Rican Woman Being Harassed for ‘Un-American’ T-Shirt Resigns

Man Arrested for DUI Tells Cops He Only Drank at Stop Signs, Not While Driving: Police

An Arizona Lawmaker Thought Speeding Was OK Because of His Legislative Immunity

New York's Department of Health Recommends Legalizing Marijuana

US Navy cost increases are worse than the US healthcare system

Mueller indicts 12 Russians for DNC hacking

The Racket Report (Red Light Camera Scammers)

Hanson: Why the left keeps saying Trump is a Nazi, fascist, tyrant or buffoon

Senate Democrats blast former Trump attorney for 'selling access' to White House


Status: Not Logged In; Sign In

U.S. Constitution
See other U.S. Constitution Articles

Title: President Trump and the Freedom of Speech
Source: Lew Rockwell
URL Source: https://www.lewrockwell.com/2018/03 ... ump-and-the-freedom-of-speech/
Published: Mar 15, 2018
Author: Andrew P. Napolitano
Post Date: 2018-03-15 09:15:24 by Deckard
Keywords: None
Views: 27

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.

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.

Post Comment   Private Reply   Ignore Thread  


[Home]  [Headlines]  [Latest Articles]  [Latest Comments]  [Post]  [Mail]  [Sign-in]  [Setup]  [Help]  [Register] 

Please report web page problems, questions and comments to webmaster@libertysflame.com