I am a strong supporter of the First and Second Amendments, but I am troubled by a few aspects of the amendment.
First, the framers of the Constitution made it clear that Congress has the power to legislate on the First, but that Congress cannot overrule the First’s decisions.
This means that Congress is free to pass laws that would curtail speech that the First deems inappropriate or distasteful.
If a person is found to have committed a crime, Congress can take steps to punish that person for that crime.
But if the person has committed a serious offense, Congress cannot punish the individual for the offense.
Congress also has the authority to regulate speech that is harmful to the public welfare, but this does not include speech that has nothing to do with the public interest.
The First Amendment does not allow Congress to regulate the content of a person’s speech or the type of speech that it is allowed to express.
Congress may, in certain cases, prohibit or punish speech that might cause harm to others, but the First does not have the power or the authority.
Second, the First amendment protects speech that people of good will, who are not hateful, who don’t seek to harm others, and who don’ t engage in hate speech, from censorship by government officials.
But the First also protects speech from censorship, not from government officials, who have a vested interest in limiting the First.
If the First were to give government officials the power over speech, then it would give government bureaucrats the power of censorship.
This would be a serious blow to free speech, especially for groups of people who are marginalized and discriminated against.
For example, in June, the Supreme Court held that students at historically Black colleges and universities have the right to hold racially insensitive events, including demonstrations that are disruptive.
If colleges and university administrators could decide which student groups and speakers would be invited to those events, then they would be able to restrict the speech of minority students and groups of students.
In the absence of this protection, these events would be subject to government censorship.
Third, the first amendment is not absolute.
A person who believes that someone’s right to free expression is being violated by speech can take legal action to bring the matter before the courts.
But courts are not the place to decide whether speech is protected.
Government officials should not have any authority to censor speech they deem offensive or objectionable.
A decision to punish someone for a speech that they consider offensive, whether it be racial, sexist, homophobic, religious, or otherwise, will be reviewed by a neutral third party.
The government has the right not to prosecute someone for that speech.
This protection from government censorship would mean that courts would be in the business of determining the validity of a speech.
The courts should not be the arbiters of these issues.
Finally, the constitutional protection of the freedom of speech is limited.
The freedom of expression includes freedom to publish, and to hold, ideas.
A free society does not permit governments to regulate or suppress speech that would promote the well-being of others.
To the contrary, the protection of freedom of association and expression provides the most effective way for a society to achieve the social goals it aims to achieve.
As a result, the freedom to speak is protected, and the freedom from government regulation is limited to the protection against government censorship of expression.
The constitutional guarantee of freedom from coercion and censorship protects all speech, including speech that could cause harm.
The Supreme Court should not limit free speech to speech that government officials deem offensive.
Instead, the court should affirm the freedom for the people of the United States to hold their own views, regardless of whether those views would be viewed favorably by the majority of the nation or not.
_____ Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the former chief judge of New York City’s Northern District.
He is the author of the new book, “What Everyone Needs to Know About the Constitutional Amendments: The First Amendments and the Second,” published by Oxford University Press.
Follow him on Twitter @apapolitano.
The views expressed in this commentary are solely those of the author.