Review of Mary Anne Franks, Fearless Speech: Breaking Free from the First Amendment. New York: Bold Type Books, 2024.
“Fearless Speech” is a provocative book that will undoubtedly promote dialogue. Its advocacy of “Breaking free from the First Amendment” largely treats the free speech clause of the Amendment as a constitutional ball and chain rather than the palladium of liberty.
Mary Anne Franks, who has authored the book, is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at the George Washington University School of Law. In a previous book, “The Cult of the Constitution,” she has characterized devotees to the free speech clause of the First Amendment and to the right to own and bear arms in the Second Amendment as members of a “cult.”
Author says First Amendment has had little relevance to courageous speech
Franks describes the First Amendment as “very, very small” and believes that “it has had little to no relevance for the most courageous speech acts in American history” (p. 176). She does laud such First Amendment doctrines as “the right against compelled speech,” the idea that mere “offensiveness … is not a sufficient justification for prohibiting speech,” and for a few decisions — such as New York v. Ferber (1982), which limits child pornography — that permit the regulation of speech “when its harms outweigh its benefits” (pp. 13-14).
Much as she advocates the idea that the right “to keep and bear Arms” in the Second Amendment does not protect gun ownership (p. 87), she believes that First Amendment doctrine “is malleable enough to be molded in ways that advance the interests of democracy and limit the features that have undermined it” (p. 13). She further argues (with no hint of how this might advance her own self-interest as what appears to be a fairly privileged law professor) that law schools should “prioritize the teaching of First Amendment principles” (p. 161).
When James Madison introduced the amendments that became the Bill of Rights, he acknowledged the inadequacy of “parchment barriers” to protect all rights, but he thought that such guarantees might provide at least some additional security for individual liberties.
Franks thinks free speech mostly benefits white male Christian capitalists
By contrast, Franks views the free speech provision of the First Amendment as a protection for white male Christian capitalists who have throughout much of U.S. history attempted to exclude others from the public square, most recently by providing wide legal immunity for internet postings.
Whereas she believes that current understandings of the First Amendment (particularly with relation to the internet) promote “reckless speech,” she carries the flag for “fearless speech.”
One of the book’s redeeming qualities that will appeal beyond academic audiences, is that it highlights the heroism of individuals including:
- Elizabeth Freeman, the Massachusetts slave who achieved her freedom by taking protections in the state constitution seriously;
- Elijah Lovejoy and other abolitionists, who opposed slavery;
- the African American journalist Ida B. Wells, who spoke truth to power; the German pamphleteer Sophie Scholi who was martyred for opposing Adolph Hitler;
- members of the #MeToo Movement who stood up to their abusers, and others.
Franks identifies people who have suffered for exercising free speech
Those individuals Franks identifies as having suffered for exercising their free speech rights include:
- women accused of being witches in colonial times prior to the U.S. Constitution;
- those who have been recognized in this online First Amendment Encyclopedia as victims of mob violence who went unprotected by law enforcement officials;
- those who were not covered by the First Amendment because they were not in America or because they faced state prosecution prior to the judicial application of the First Amendment to the states via the Fourteenth Amendment;
- those victims of what Alexis de Tocqueville described as the “tyranny of the majority” who have been scorned or shunned by members of the public (rather than by direct governmental actions) who disagree vehemently with them;
- women and African Americans who were not initially granted full rights of citizenship; and
- those who have been the subject of doxing, slander, swatting, or other acts of intimidation, most of which are illegal.
It is inspiring to laud heroes and martyrs, but one should be able to express opinions without having to risk dying for so doing, and we cannot always count on saints and patriots rising to such occasions. One can admire John the Baptizer without believing that one should be decapitated for disagreeing with those in authority. Similarly, one can acknowledge the manner in which the self-interest of Hugh Hefner and Larry Flynt sometimes expanded First Amendment rights without valorizing their exploitation of, or misogyny toward women.
One might as well blame the First Amendment for most of the abuses that Franks identifies as one might fault laws against homicide for not preventing murder, those against stealing for not preventing thefts, or those against sexual assault for not preventing rape.
Franks is troubled that the First Amendment extends freedom to Neo-Nazis, members of the Klan, and male chauvinists but seems untroubled by the thought that those within the power structure she so despises would likely be the very ones who would decide in the absence of First Amendment restraints which speakers to permit and which to censor.
Franks supports prosecuting social media
Franks’ proposals to strengthen the role of the Federal Trade Commission (FTC) in prosecuting social media sources for false advertising for claiming that their services are free even though they harvest data for profits, and the idea that they should be expected to collect fees that could be distributed to “subsidize public resources in a variety of spaces and complement meaningful investments in journalism, public education, universities, community centers, and small businesses to allow them to return to being or to become alternate sites of free express and informed debate” (p. 158) would arguably make social media even less available to the poor and put the government in the position of favoring some news entities over others.
James Madison observed in Federalist No. 51 that, “if men [and, one might add, women] were angels, no government would be necessary.” His observation is a reminder that America is not divided into white men wearing black hats and black men, women, and other minority members donning white hats. As Aleksandr Solzhenitsyn observed in “The Gulag Archipelago, 1918-1956”: “The line separating good and evil passes not through states, nor between classes, nor between political parties either — but right through every human hearts — and through all human hearts.” As far too many revolutions have demonstrated, those who were the oppressed have often become the oppressors.
Franks criticizes a defamation case in which Amber Heard lost against Johnny Depp, while not emphasizing the manner in which the Supreme Court decision in New York Times v. Sullivan (1964) protected The New York Times and civil rights leaders against defamation for minor errors of fact. Moreover, in recent months in which modern-day Davids have used First Amendment doctrines against contemporary Goliaths, E. Jean Carroll has won two major defamation cases against Donald J. Trump, and Ruby Freeman and Shaye Moss have won a verdict against Rudy Giuliani. In another even more recent cautionary tale against accepting every accusation simply because it comes from a minority, Crystal Mangum admitted that she had filed false charges of rape against Duke lacrosse players back in 2006.
Questions about liability protections
Franks does raise legitimate questions about current law embodied in Section 230 of the Communications Decency Act that exempts providers against liability simply for posting materials that they themselves did not originate, but the fact that social media providers make a profit should not in a society that values property rights equate to their guilt. We certainly do not hold telephone companies liable simply because an individual makes a threat or conveys information essential to the commission of a crime over a phone, although we do allow law enforcement officials who establish probable cause to secure warrants that single out those who use the phones for nefarious purposes.
Current laws seek to protect newspapers that inadvertently publish false advertisements, and, as in other matters involving criminal law, convictions typically require mens rea, or criminal intent. Franks raises legitimate questions about the decision in Counterman v. Colorado (2023) in which the Supreme Court ruled that an individual could not be convicted for stalking without an intention to terrorize, but it might be possible to adopt laws that make certain harassing actions rebuttable evidence of such intent.
Although Franks rightly recognizes that not every speech act that is permissible under the First Amendment free speech clause is therefore commendable, it is important to recognized that not every offensive statement should therefore be the subject of governmental interference.
Rather than protecting the rights of minorities, Franks’ book appears more likely to further the popular belief, already documented, that the First Amendment already goes “too far” (Paulson 2024) than to convince individuals that it does not go far enough.
FURTHER READING
Deborah Fisher. “Social Media and the First Amendment.” First Amendment Encyclopedia. November 11, 2024.
Ken Paulson, “Does the First Amendment ‘go too far’?” First Amendment Encyclopedia. October 3, 2024.
Ken Paulson, “The irony of Johnny Depp and Amber Heard suing to restore their reputations.” First Amendment Encyclopedia. June 2, 2022.
Mary Anne Franks. The Cult of the Constitution. Stanford, CA: Stanford University Press, 2020.