“Congress shall make no law … abridging the freedom of speech or of the press…”

–First Amendment to the U.S. Constitution During the oral argument before the Supreme Court in the famous Pentagon Papers case, a fascinating colloquy took place between Justice William O. Douglas and the lawyer for the government. The case was about whether the government could prevent The New York Times and The Washington Post from publishing secret documents that demonstrated that American generals had been misleading President Lyndon Johnson and he had been lying to the American public during the Vietnam War.

The documents had been stolen by Daniel Ellsberg, a civilian employee of the Department of Defense, in an act of great personal courage and constitutional fidelity, and then delivered to both newspapers. Two federal judges had enjoined the newspapers from publishing the documents, and the Supreme Court was hearing appeals by the newspapers.

When Justice Douglas asked the government lawyer if the phrase “no law” in the First Amendment literally means no law, he was unable to answer. The court found his mumbo jumbo reasoning so telling that it actually published the transcript of the Q and A in the court’s opinion itself — something it had not done before in modern times nor since.

The court ruled in that landmark case that freedom of speech and the right to know what the government is doing and the right to consult whatever source one chooses when forming an opinion each trump the government’s concerns for protection of state secrets.

The Pentagon Papers case was the high watermark for the freedom of speech: Freedom trumps safety. But the court studiously avoided answering Justice Douglas’ question about no law. If the Constitution means what it says, then no law literally means no law, and thus all sorts of legislation about speech — from defamation to treason to silencing TikTok — is unconstitutional. But if no law doesn’t really mean no law, then what does it mean?

Regrettably, today, no law means whatever the court says it means. That’s what happened last week when the court upheld congressional legislation silencing TikTok.

The legislation was based on Congress’ authority under the Commerce Clause to ban offensive products. Yet, rather than analyzing the legislation based on that, the court ruled that if Congress decides that some commonly used instrument is detrimental to national security, then the court will not second guess Congress, even if this has the ancillary effect of abridging upon the freedom of speech.

This ruling, which effectively overruled the Pentagon Papers case, turns First Amendment jurisprudence on its head.

The courts have long recognized the freedom of speech as a natural human right.

Those of us who believe that the Constitution means what it says also recognize that the freedom of speech encompasses ancillary rights — such as the right to silence, the right to read and gather information from whatever source one chooses, and the right to transmit free speech using whatever means one chooses.

Yet the Supreme Court, whose principal job is to preserve personal liberty and private property from the reach of the government failed to do its job, bowing to undemonstrated congressional fears of Chinese Communist party officials hacking into the mobile devices of youthful TikTok users.

The greatest computer-hacking enterprise on the planet is the federal government’s own National Security Agency. That’s your friendly 60,000-person strong domestic spying apparatus, which unconstitutionally captures without search warrants every keystroke on every device and all data transmitted into, out of and within the United States. All of this is funded by the same Congress that will crush the free speech rights of adults because it fears foreign hacking of their children.

The legislation Congress enacted and that the Supreme Court upheld is profoundly at odds with basic American values. Among those values is that nothing trumps the freedom of speech. Without it, we cannot fulfill our aspirations as human beings or pursue happiness (remember that?).

This week, President Donald Trump directed his Department of Justice not to enforce the TikTok ban for 75 days in the hope of some pro-free speech resolution.

Doesn’t the Constitution mean what it says? Doesn’t no law mean no law? Isn’t the Constitution Madison gave us the supreme law of the land? The answer to all these questions is: YES. But the Constitution and its guarantees are only as vital as is the fidelity of the folks in whose hands we have reposed it for safekeeping.

In that respect, we have failed miserably.