THE CONSTITUTION DOES NOT GURANTEE FREE SPEECH!
That is absolutely correct. The phrase “free speech” never appears in the US Constitution or any of the amendments to it.
What does appear, and only ONCE is “Congress shall make no law … abridging the FREEDOM OF SPEECH, or of the press.”
And there is a wide gulf of meaning between the two phrases.
The Constitution does NOT permit ANY form of speech without attendant consequences.
What are some of those limits?
Laws against committing perjury, disclosing classified information, and making terrorist threats, for instance, all restrict “speech,” but no one seriously doubts their constitutionality. “Because the Constitution guaranties the right of expressing our opinions, and the freedom of the press,” Federalist congressman John Allen asked rhetorically, “am I at liberty to falsely call you a thief, a murderer, an atheist?”
For us, a constitutional “right” is a legally enforceable privilege or immunity — something that the government has to provide us (e.g., our “right” to a jury trial) or something that the government cannot take away (e.g., our “right” to possess personal firearms in order to serve in a militia).
But American elites in the late 18th century understood their “rights” in a very different way. For the founders, rights were divided into two categories: natural rights and positive rights.
Natural rights were all the things that we could do simply as humans, without the intervention of a government. Eating, walking, thinking, and praying, for instance, were all things that individuals could do without a government, so they were all easily identifiable as natural rights.
Meanwhile, positive rights were defined explicitly in terms of governmental authority. The right to a jury trial and the right to habeas corpus, for instance, were positive rights because they were procedures provided by the government.
For the founders, natural rights were rooted in the “social-contract” in which proper scope of governmental authority is discoverable by first imagining our situation as if there were no government and then considering why we would come together and agree to form a political society through an agreement. A constitution then creates a government and grants it certain powers.
Stopping the spread of lies, Federalists insisted, was essential to maintaining a well-informed electorate and, thus, a republican government.
When someone claims an “absolute right to free speech”, they are mischaracterizing the Constitution. You have an absolute freedom to speak, but you are not immune to the consequences of that speech.
Lies and incitement to commit a crime are not protected speech.