October 3, 2025
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
I believe there is a feeling among most people that the Founding Fathers had a simplistic and absolute view of freedom of speech, given the absolute language of the Constitution. The reality is far more complicated.
They actually held extensive and nuanced views on freedom of speech, which they considered fundamental to democratic government and individual liberty.
James Madison, the primary architect of the First Amendment, viewed free speech as essential to preventing tyranny. He argued in the Virginia Resolutions that free speech was necessary for citizens to communicate with their representatives and hold government accountable. Madison believed that in a republic, the people must be able to freely discuss and criticize their government.
Thomas Jefferson was perhaps the most ardent defender of free expression among the founders. He famously wrote, “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” Jefferson believed that truth would emerge through the free exchange of ideas, writing that “error of opinion may be tolerated where reason is left free to combat it.”
Alexander Hamilton defended free speech and press in his legal work and writings. In The Federalist Papers, he argued that a free press was essential as a check on government power, though he also believed there should be legal remedies for malicious falsehoods.
George Washington, while generally supportive of free expression, was more concerned about the potential for speech to undermine national unity. In his Farewell Address, he warned against the “baneful effects of the spirit of party” while still supporting the principle of free debate.
The founders generally agreed that free speech was crucial for democratic deliberation, checking government power, and discovering truth. However, they also grappled with tensions between free expression and other values like public order, national security, and personal reputation. These debates continue to influence First Amendment jurisprudence today. Indeed, as we saw in the Kimmel affair, up to the present day.
Their commitment to this principle was tested early, notably during the Alien and Sedition Acts controversy of 1798, which divided the founders and helped clarify their thinking about the scope and limits of free speech protection.
The Alien and Sedition Acts were four laws passed by Congress in 1798 during John Adams’ presidency, amid rising tensions with France and fears of war. These acts significantly expanded federal power and restricted civil liberties in ways that sparked intense political controversy. Their relevancy to our politics today should be obvious.
The Four Acts:
Naturalization Act extended the residency requirement for citizenship from 5 to 14 years, targeting immigrants who often supported the Democratic-Republican Party.
Alien Friends Act gave the president power to deport any non-citizen deemed “dangerous to the peace and safety of the United States” during peacetime, without trial.
Alien Enemies Act allowed the president to deport or imprison citizens of hostile nations during wartime.
Sedition Act criminalized “false, scandalous, and malicious” statements against the federal government, Congress, or the president. Violators faced fines up to $2,000 and imprisonment up to two years.
The Federalist Party, led by Alexander Hamilton and supported by President Adams, pushed these acts through Congress. They argued the measures were necessary to protect national security during the “Quasi-War” with France. However, critics saw them as partisan attempts to silence opposition and suppress the Democratic-Republican Party.
Thomas Jefferson and James Madison strongly opposed the acts, viewing them as unconstitutional violations of the First Amendment. They secretly authored the Kentucky and Virginia Resolutions, asserting states’ rights to nullify unconstitutional federal laws.
Roughly 25 people were arrested under the Sedition Act, mostly Democratic-Republican newspaper editors and politicians. The most famous case involved Matthew Lyon, a congressman who was imprisoned for criticizing Adams’ administration.
The acts proved deeply unpopular and contributed to Jefferson’s victory over Adams in the 1800 election. Jefferson pardoned those convicted under the Sedition Act, and most of the acts expired in 1801. This controversy helped establish important precedents about free speech and the limits of federal power during national emergencies.
Few people value free speech as much as a writer. And as one who has published for most of my life, I clearly stand strong for free speech and the First Amendment. To be clear.
And yet, I find the subject complicated and one full of contradictions. Observers are quick to point out that freedom of speech is most honored in what I call the space between the knuckles of the speech fist. When speech is uncomfortable and provocative, it is precisely in those instances where free speech is most relevant. Because of the underlying assumption that free speech helps protect the Republic from tyranny, that is, from the ruling class or ruling party.
And yet, I can’t help but feel that we should not have completely free speech in which people can say and write anything they wish. That free speech perhaps should not be defined as unfettered free speech. There should be boundaries, although the burden of proof is on those who would seek boundaries.
Let me ask this question to illuminate the issue.
During the 1920’s Adolf Hitler rose to power mostly on his ability to move people by his rhetoric. Considering that 50,000,000 people died in the horrors of World War II, should Hitler have been afforded free speech, or should he have had boundaries put on his speech? It turns the “protection against tyranny” argument on its head: What if free speech enables tyranny?
If we allow unfettered free speech, are the following then acceptable:
Yelling “Fire!” in a crowded theatre with limited exit.
Threatening to kill or main another individual.
Writing a publicly circulated description of the sexual habits of an ex-spouse.
Accusing a public figure of heinous acts of moral turpitude (theft, physical or emotional abuse against as elderly person).
Now it seems to me that free speech is judged in two different courts which weigh in on its validity.
The first would be our justice system. Defamation is the umbrella term for false statements that harm someone’s reputation. It’s the broadest category that encompasses both slander and libel. Slander is spoken; libel is written.
And then there is a class of libel called ‘per se.’ Per se defamationrefers to statements that are considered so inherently harmful and damaging that they don’t require proof of actual damage or harm to reputation. The law presumes that certain categories of false statements are so serious that injury to reputation is a given:
Accuse someone of a crime. Particularly serious crimes or crimes involving moral turpitude.
Impute a loathsome disease. Historically, sexually transmitted diseases, though this category has evolved with changing social attitudes.
Harm someone’s business, trade, or profession. False statements that would damage someone’s ability to work in their field.
Impute serious sexual misconduct. False accusations of adultery, promiscuity, or other sexual impropriety (though this varies by jurisdiction and has changed over time)
We read social media and microphone moments which express per se defamation. When people utter them and are not prosecuted, they no doubt begin to feel their speech is protected. It is more likely the object of their commentary chooses not to prosecute, but prosecution is becoming much more common.
Thus, there can be a real economic price to pay for unfettered free speech. Put another way, society already recognizes and condones limits on speech.
The second court is one we don’t think of, but it is the court of public opinion. Speech is weighed and penalties assessed at the ballot box, via boycott at the cash register. One recalls (with a shudder) when Kathy Griffin posed with her famous picture; an act supported by some as an expression of free speech by a comedienne. But the court of public opinion would have none of it and it helped torpedo her career.
But with the advent of social media, any individual is free to communicate whatever hate he/she wishes to spew, and there is no real reckoning…no matter how few ‘likes’ they receive, they can just keep on doing it.
Which brings us around to Mr. Kimmel. I think he made two mistakes. First, he was insensitive to the circumstances surrounding his comments. It is pretty much proper human behavior that death, especially murder, is something that needs very tender and careful commentary, if any commentary should be made at all. We should all condemn murder and mourn the result of fatherless children and widows left behind. It is not a time to score points, especially political points, by anyone. The only exception I can think proper is if the individual’s family chooses to do so.
Second, he had his facts wrong.
And so, the court of public opinion, via the media moguls who write his paycheck spoke. I am reminded that employees are subject to the wishes of their employer and if they find themselves uncomfortably bound by them, they are free to quit and go independent.
So, in some circles, Mr. Kimmel was lionized as a comedian who deserved protection. I don’t know about you, but I found nothing funny in his comments. They were a raw political statement at an emotionally raw time.
We simply cannot heal this country when we hide behind the First Amendment to amplify and promote language that seeks to divide us.
So, I circle back to my own belief. I am a firm proponent of free speech. But I am also a proponent of responsible free speech. You have an intense dislike for Mr. Trump, make your case. You have an intense dislike for Mr. Newsom, make your case. I’ll listen to both and then judge.
But if you call the Governor “scum” you’ve lost me. And if you call the President a s** of a b**** you’ve lost me. Both are inappropriate and charged with divisiveness. We do well to be reminded that when Mr. Trump and those on the other side similarly engage, they’re all in the mosh pit together, hurling invective and insult that does very little to help. It brings us all down.
There is good news about this.
We have elections and ultimately, that court of public opinion pulls us back from the brink. When things go too far, the voters pull it all back in. And as the pendulum swings, and newly elected partisans confuse their election with a mandate to do as they wish (which is now the risk facing the Republicans), they also go too far and the public steps in to change that. It swings back and forth from excess to fairness and then back to excess. Rinse and repeat.
In summary, I believe as long as we have the ballot box and the courts and the checks and balances built into the Constitution, free speech is safe. It can be threatened from time to time, but its strength is infinitely greater than the powers wishing to abrogate it. But it cannot nor should it be abused. With rights inevitably comes responsibilities.
And it will prove to be so in the years ahead, just as it did in the long-gone days of the Alien and Sedition Act.
History does indeed rhyme.
Thoughts, questions, or reflections? I’d love to hear them. You can reach me anytime at anthony@workingprofit.com
