Mary Anne Franks and the Protection of “Fearless Speech”

​“Can we finally say and admit to ourselves that the First Amendment is not this noble principle? It is mostly a … tool, and mostly what it's going to be used to do is to crush the people who are trying to advocate for equality, and it's going to be used to protect the people who are trying to preserve the status quo."
 
So posits celebrated academic and author Mary Anne Franks in a recent interview about her new book, Fearless Speech: Breaking Free From the First Amendment.
 
Franks’ latest effort attempts to draw a distinction between what she dubs “reckless speech … which endangers vulnerable groups” … and “fearless speech … which seeks to advance equality and democracy.” The obvious implication is that we should stop protecting the former and elevate the latter. But who decides what’s reckless and what’s fearless?
 
We’ve written about Franks before when she proposed a rewrite of the First Amendment that would omit the Freedom of the Press clause in order to resolve conflicts between rights “in accordance with the principle of equality and dignity of all persons.” And it’s with this vague prescription that her argument not only fails but leads to the short road to tyranny.
 
This should be obvious for someone who teaches “civil rights law” at a respected law school. This should, in fact, be obvious to anyone who has cracked a book about world history. If you open the door to subjective interpretations of speech that violates someone’s “dignity,” then you inevitably end up with a weaponized First Amendment that could be used to punish comics, satirists, journalists, musicians, and any other speaker whose views offend someone’s sense of dignity. Maybe such censorship will net some bigots, too, but then you’re always going to catch a few fish when you spread dynamite around the lake.
 
Franks’ interpretation of the First Amendment is explicitly rooted in grievance – a belief that America is fundamentally unjust and that our systems of governance protect “racial patriarchy.” (For an in-depth look at what Franks leaves out in her polemical take on American history, Prof. Jacob Mchangama has a great book review in Reason.) Franks’ worldview comes with an automatic list of protected speakers and another list of speakers at risk of violating the law. This framing trashes any idea of the law being viewpoint neutral.
 
And so what happens if an election flips the governing philosophy, as has just happened in November? Is Franks ready for the day when she is defined as part of the illicit governing patriarchy and her speech is forbidden? If Franks had her way, what is and is not permitted would reverse with every election or change in the composition of the Supreme Court – because my fearless speech and your undemocratic speech are subjective and easily weaponized as convenient excuses to persecute each other.
 
Almost every American can agree there is objectively bad speech, like much of the speech of the Ku Klux Klan or neo-Nazis. But such speech doesn’t go away if it is repressed by law. Censorship inevitably leads to black-market samizdat. Once underground, such speech acquires the allure of the illicit and the magnetism of the forbidden.
 
Franks dismisses reverence for the Constitution as “fundamentalist.” This is an odd word choice for a principle that has protected atheists, communists, dissenters, and writers of erotic literature. We are richer today for being able to decide whether or not to read Anaïs Nin, Allen Ginsberg, and Angela Davis. Would society be better off today if someone decided to strike the works of C.S. Lewis, William F. Buckley, and Victor Davis Hanson?
 
The genius of the First Amendment lies in its simplicity and neutrality. The First Amendment offers the same protection for all while permitting reasonable exceptions. For example, the First Amendment couldn’t protect talk show provocateur Alex Jones from handing over his fortune and livelihood after a jury found that he had defamed the grieving parents of children murdered in the Sandy Hook school massacre. And while the First Amendment may shield the occasional extremist, it also ensures that powerful organizations and groups cannot silence men and women of conscience who criticize them.
 
Franks’ ideas are unserious to the point of childishness. (There, saved you an Amazon purchase. Try this one instead.) She seems willing to delegate complex adjudications of social conflicts to people she regards as the smartest and best intentioned. No one – but no one – should be trusted with that kind of power. That’s what the Founders felt in their bones when they wrote:
 
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
 
Many Americans have died for those words. We should not casually toss them aside.

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