OPINION:
In 1966, two Russian literary dissidents, Yuli Daniel and Andrei Sinyavsky, were tried and convicted on charges of disseminating propaganda against the Soviet state. The humorists published satire abroad mocking Soviet leaders for failing to comply with the Soviet Constitution of 1936, which guaranteed freedom of speech.
Their convictions sparked international outrage. Arthur Goldberg, a former U.S. Supreme Court justice and then U.N. ambassador, called the charges and the trial “an outrageous attempt to give the form of legality to the suppression of a basic human right.” When a secret transcript of the trial was circulated in the West, it became clear that Daniel and Sinyavsky were convicted of using words and expressing ideas contrary to what Soviet leaders wanted. They were sentenced to five and seven years, respectively, of hard labor in Soviet prison camps.
Last week, the U.S. Department of Political Justice took a page from the Soviets. It charged Americans and Russians with disseminating anti-Biden administration propaganda in Russia and here in the U.S. What ever happened to the freedom of speech?
Here is the backstory.
The framers who crafted the Constitution and the Bill of Rights under the leadership and the pen of James Madison were the same generation that revolted violently against King George III and Parliament and won the American Revolution. The revolution was more than just six years of war in the Colonies. It was a radical change in the minds of men — elites such as Madison and Thomas Jefferson as well as farmers and laborers generally untutored in political philosophy.
They may have been untutored, but they knew they wanted to speak their minds, associate and worship as they pleased, defend themselves and be left alone by the government. The key to all this was the freedom of speech. Speech was then, as it is today, the most essential freedom. Harvard professor Bernard Bailyn read and analyzed all the extant speeches, sermons, lectures, editorials and pamphlets that he could find from the period and concluded that in 1776, only about one-third of the colonists favored a violent separation from England. By the war’s end in 1781, around two-thirds welcomed independence.
But independence was bilateral. It meant not just independence from England but independence from the new government here as well. To ensure independence from the federal government, the Colonies ratified the Constitution. Its purpose was to establish a limited central government. After the Constitution was ratified and the federal government was established, five colonies threatened to secede from it unless the Constitution was amended to include absolute prohibitions on the government from interfering with natural individual rights.
In drafting the Bill of Rights, Madison, who chaired the House of Representatives committee that did the drafting, insisted that the word “the” precede the phrase “freedom of speech, or the press” to manifest to the ratifiers and posterity the framers’ collective understanding of the origin of these rights. That understanding was the belief that expressive rights are natural to all people, no matter where they were born, and natural rights are, as Jefferson had written in the Declaration of Independence, inalienable.
Stated differently, Madison and his colleagues gave us a Constitution and a Bill of Rights that recognized the pre-political existence of freedom of speech and of the press and guaranteed that Congress — by which they meant the government — could not and would not abridge them.
Until now.
In the past two weeks, the feds have secured indictments against two Americans living in Russia who are also Russian citizens working for a Russian television network that expressed political views — the feds call this propaganda — contrary to those of the Biden administration.
The same feds secured an indictment against Americans and Canadians for funneling pro-Russian ideas to the American public through social media influencers. The feds, who call the words being used by their targets “disinformation,” apparently believe that the First Amendment has some holes in it for speech that the government dislikes or fears.
That belief is profoundly erroneous.
The purpose of the First Amendment is to keep the government out of the business of evaluating speech content. The strength of an idea is its acceptance in the marketplace of ideas, not in the minds of the government. This is political speech that is critical of government policies — that would be the very speech in which you and I and millions of Americans engage daily.
The speech we love to hear needs no protection because we welcome it. But the speech that challenges, irritates, expresses alternative views and exposes the government’s lying, cheating and killing — even harsh, caustic, hateful speech — is the very speech the First Amendment was written to protect.
The United States has not declared war on Russia. Under international law, there is no legal basis for such a declaration. The U.S., however, which supplies weapons for Ukraine to attack Russia, is far more of a threat to Russia than Russia is to the U.S. But you’d never know that by listening to the government. The government doesn’t even want you to hear speech that contradicts its narrative.
In reading about the Soviet show trial of Daniel and Sinyavsky and the recent indictments of Americans and others for expressing what our government calls Russian propaganda, my stomach turned. The federal government has become what it once condemned. Like the Soviets in 1966, it mocks free speech, it assaults basic human rights, it evades the Constitution it is commanded to uphold and now it punishes those who dare to disagree. This may bring it to the same untimely end as the Soviet Union it emulates.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
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