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This article was written by Andrew Napolitano and originally published at

“Chilling” is the word lawyers use to describe governmental behavior that does not directly interfere with constitutionally protected freedoms, but rather tends to deter folks from exercising them. Classic examples of “chilling” occurred in the 1970s, when FBI agents and U.S. Army soldiers, in business suits with badges displayed or in full uniform, showed up at anti-war rallies and proceeded to photograph and tape record protesters. When an umbrella group of protesters sued the government, the Supreme Court dismissed the case, ruling that the protesters lacked standing — meaning, because they could not show that they were actually harmed, they could not invoke the federal courts for redress.

Yet, they were harmed, and the government knew it. Years after he died, longtime FBI boss J. Edgar Hoover was quoted boasting of the success of this program. The harm existed in the pause or second thoughts that protesters gave to their contemplated behavior because they knew the feds would be in their faces — figuratively and literally. The government’s goal, and its limited success, was to deter dissent without actually interfering with it. Even the government recognized that physical interference with and legal prosecutions of pure speech are prohibited by the First Amendment. Eventually, when this was exposed as part of a huge government plot to stifle dissent, known as COINTELPRO, the government stopped doing it.

Until now.

Now, the government fears the verbal slings and arrows of dissenters, even as the means for promulgating one’s criticisms of the government in general and of President Obama in particular have been refined and enhanced far beyond those available to the critics of the government in the 1970s.

So, what has the Obama administration done to stifle, or chill, the words of its detractors? For starters, it has subpoenaed the emails and home telephone records of journalists who have either challenged it or exposed its dark secrets. Among those journalists are James Risen of The New York Times and my colleague and friend James Rosen of Fox News. This is more personal than the NSA spying on everyone, because a subpoena is an announcement that a specific person’s words or effects have been targeted by the government, and that person continues to remain in the government’s crosshairs until it decides to let go.

This necessitates hiring legal counsel and paying legal fees. Yet, the targeting of Risen and Rosen was not because the feds alleged that they broke the law — there were no such allegations. Rather, the feds wanted to see their sources and their means of acquiring information. What journalist could perform his work with the feds watching? The reason we have a First Amendment is to assure that no journalist would need to endure that.

Two weeks ago, a notorious pot stirrer in Norfolk, Neb., built a mock outhouse, put it on a truck and drove the truck with permission in a local Fourth of July parade. In front of the outhouse, he placed a mannequin that he claimed looked like himself, and on the outhouse, he posted a sign that stated: “Obama Presidential Library.”

Some thought this was crude, and some thought it was funny; yet it is fully protected speech. It is protected because satire and opinion about public figures are absolutely protected, as well as is all criticism of the government. Yet, the Department of Justice has sent a team to investigate this event because a local official called it racist. Such an allegation by a public official and such a federal investigation are chilling. The reason we have a First Amendment is to ensure that the government stays out of investigating speech.

And just last week, Attorney General Eric Holder, while in London, opined that much of the criticism of Obama is based on race — meaning that if Obama were fully white, his critics would be silent. This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling. Tagging someone as a racist is the political equivalent of applying paint that won’t come off. Were the Democrats who criticized Attorney General Alberto Gonzales or Secretary of State Condoleezza Rice racists? Is it appropriate for government officials to frighten people into silence by giving them pause before they speak, during which they basically ask themselves whether the criticism they are about to hurl is worth the pain the government will soon inflict in retaliation?

The whole purpose of the First Amendment is to permit, encourage and even foment open, wide, robust debate about the policies and personnel of the government. That amendment presumes that individuals — not the government — will decide what language to read and hear. Because of that amendment, the marketplace of ideas — not the government — will determine which criticisms will sink in and sting and which will fall by the wayside and be forgotten.

Surely, government officials can use words to defend themselves; in fact, one would hope they would. Yet, when the people fear exercising their expressive liberties because of how the governmental targets they criticize might use the power of the government to stifle them, we are no longer free.

Expressing ideas, no matter how bold or brazen, is the personal exercise of a natural right that the government in a free society is powerless to touch, directly or indirectly. Yet, when the government succeeds in diminishing public discourse so that it only contains words and ideas of which the government approves, it will have succeeded in establishing tyranny. This tyranny — if it comes — will not come about overnight. It will begin in baby steps and triumph before we know it.

Yet we do know that it already has begun.





  1. I wholeheartedly agree with the judge, especially the last part.
    We are literally in a battle of words, ideas and information with the current administration.
    Freedom of speech and the press are part of the 1A.
    When the battle of the 1A has run it’s course and there is still oppression of the American people then the People must not back down.
    I believe that is why the Founders arranged the first two amendments the way they did. One should always use words first before conflict.

  2. When was “racism” outlawed? Was it around the time defending marriage was outlawed? Or was it around the time Christian churches were outlawed? I can’t remember!

  3. “This is highly inflammatory, grossly misleading, patently without evidential support and, yet again, chilling.”

    This is all of the above ONLY if you are going to let them determine what we are allowed to say, “polita speech” as it is called. It is a TACTIC used to control speech.

    “Abuse of words has been the great instrument of sophistry and chicanery, of party, faction, and division of society.” John Adams

    ‘Whoever would overthrow the liberty of a nation must begin by subduing the freeness of speech’. Benjamin Franklin

    “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us” Justice William O. Douglas

    “Think of the press as a great keyboard on which the government can play.” Joseph Goebbels, Minister of Propaganda, Nazi Germany

    “Without freedom of thought there can be no such thing as wisdom and no such thing as public liberty without freedom of speech.” Benjamin Franklin, 1722

    “In some of its more lunatic aspects, political correctness is merely ridiculous. But in the thinking behind it, there is something more sinister which is shown by the fact that already there are certain areas and topics where freedom of speech, in the sense of the right to open and frank discussion, is being gradually but significantly eroded” Retiring Judge Neil Denison, who as Common Serjeant of London since 1993 was one of Britain’s most prominent judges, as quoted by the London Daily Telegraph

    “In revealing the workings of government that led to the Vietnam War, the newspapers nobly did precisely that which the Founders hoped and trusted they would do”. Hugo L Black, Associate Justice, US Supreme Court – Concurring opinion in 6-3 ruling that upheld the press’s right to publish the Pentagon Papers, 30 Jun 71

    “Reason and free inquiry are the only effectual agents against error… They are the natural enemies of error, and of error only… If free enquiry be restrained now, the present corruptions will be protected, and new ones encouraged” Thomas Jefferson: Notes on Virginia, 1782.

    “… Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest and the profligate are rewarded, because they flatter the people, in order to betray them.” Joseph Story, Commentaries on the Constitution

    “The ultimate determinate in the struggle now going on for the world will not be bombs and rockets but a test of wills and ideas – a trial of spiritual resolve; the values we hold, the beliefs we cherish and the ideas to which we are dedicated.” R. Reagan
    “If we lose freedom here, there is no place to escape to. This is the last stand on Earth.” R. Reagan

    ‘Cowardice asks the question, “Is it safe?” Expediency asks the question, “Is it politic?” And Vanity comes along and asks the question, “Is it popular?” But Conscience asks the question “Is it right?” And there comes a time when one must take a position that is neither safe, nor politic, nor popular, but he must do it because Conscience tells him it is right.’ Dr. Martin Luther King Jr.

    As a Marine I ask, head bowed, will the few and the proud beneath deception’s cloud stand above the crowd, extinguish sins Fedgov allowed, in the name of the Oath once vowed? {Me – they LIE, over and over again and we allow it.}

    “If everybody is thinking alike, then somebody isn’t thinking.” Gen. George Patton

    “Conspiracy theory” was born to describe anything that questions official, establishment positions. Problem is, in the realm of establishment positioning, by definition, everything is conspiracy, putting the term conspiracy theory in the same league as “wet water” Unknown

    The most tyrannical of governments are those, which make crimes of opinions, for everyone has an inalienable right to his thoughts. Baruch Spinoza, “Ethics” (1677)

    ”The opinions of men are not the object of civil government, nor under its jurisdiction.” Thomas Jefferson

    “The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Justice Anthony Kennedy, majority opinion Ashcroft v. Free Speech Coalition, April 16, 2002.

    The opinion in Mack and Printz v. United States stated, “The Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. The Federal Government’s power would be augmented immeasurably and impermissibly if it were able to impress into its service–and at no cost to itself–the police officers of the 50 States…Federal control of state officers would also have an effect upon the separation and equilibration of powers between the three branches of the Federal Government itself.”

    “A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known, and he carries his banners openly. But the traitor moves among those within the gates freely, his sly whispers rustling through all the alleys, heard in the very hall of government itself. For the traitor appears no traitor. He speaks in the accents familiar to his victims, and he wears their face and their garments, and he appeals to the baseness that lies deep in hearts of men. He rots the soul of a nation. He works secretly and unknown in the night to undermine the pillars of a city. He infects the body politic so that it can no longer resist. A Murderer Is Less To Be Feared.” Cicero

    “If the machine of government is of such a nature that it requires you to be the agent of injustice to another, then, I say, break the law” Henry David Thoreau

  4. You have the wrong focus. Your worst problems are not constitutional they are religious and corporate. First too many people doing two many things in too many geographic areas to get all of them to cooperate rather than compete. Large institutionalized standing armies, navies, marines, air forces, drones,intelligence directed by corporations and warring religions make collecting small arms to defend yourself pathetic. Secondly Climate change. Big energy wants to keep on doing business as usual so it tries to make climate change a myth. People you can see for yourselves the streets are flooding. More than 100 east and gulf coast cities with populations over 100,000 can’t be saved with sea walls and levees. We lose seaports, airports, coastal roadways, underground utilities, all the Nuke plants using sea water as a coolant will be hard to service underwater.We will lose water and sewage treatment, distribution networks. Religions exist to set the rites of passage so that they promote the puritan work ethic and keep you working for a living when you should be preparing to save your family. By 2050 sea levels rise may be four feet. By 2100 we will start measuring it in meters rather than feet and be at two meters. In Maine we are losing the lobster and our fishing industry to warmer waters, and our logging industry to things like infestations of pine beetles, acid rain. In some places we will see drought, famine, plague, pestilence, in others too much water or snow. You can’t defend against hordes of refugees from these conditions with a bunker mentality. Government really has nothing to do with any of this. FEMA is distributing coastal flood plain insurance maps based on the USGS survey data showing where coastal shore front property can’t be saved, won’t be insured, shouldn’t be built and realtors are arguing the data is wrong and should just be ignored. 36,000 miles of coastline running back from the coast anywhere from 6 to 100 miles is affected with a potential cost of tens of trillions of dollars a year for the next century and nobody is doing anything about it except one guy Jim Titus at the EPA who has been quietly organizing efforts to do things since the eighties.

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