NAPOLITANO: A Brief History of the Freedom of Speech

Punishing speech and association is the most dangerous business because it is subjective and value-free and there will be no end to it

BY JUDGE ANDREW NAPOLITANO

"I disagree with what you say but will defend to the death your right to say it."

— Voltaire (1694-1778)

When Thomas Jefferson wrote the Declaration of Independence, he included in it a list of the colonists' grievances with the British government. Notably absent were any complaints about infringement upon speech.

In those days, speech was as acerbic as it is today. If words were aimed at Parliament, all words were lawful. If they were aimed directly and personally at the king — as Jefferson's were in the Declaration — they constituted treason.

Needless to say, Jefferson and his 55 colleagues who signed the Declaration would all have been hanged for treasonous speech had the British prevailed.