"If he’d like to do a public debate, I’d be up for that." — Mary Anne Franks (Oct. 28, 2024)

Well, there you have it, the gauntlet has been thrown down. Feminist versus libertarian — equality versus liberty — disputes over the powerful versus the powerless, and gender diversity to boot. No, Catharine MacKinnon is not back in the First Amendment arena, at least not for now. But her feminist sister-in-arms, George Washington Law professor Mary Anne Franks, is ready to take on some noted First Amendment absolutist types including FIRE’s own CEO Greg Lukianoff (full disclosure: FIRE hosts this newsletter but does not control its content). 

And why? It all has to do with a new and challenging book by Franks titled “Fearless Speech: Breaking Free from the First Amendment” (2024). Here is the Amazon book description for the work:

A powerful debunking of First Amendment orthodoxy that critiques “reckless speech,” which endangers vulnerable groups, and elevates “fearless speech,” which seeks to advance equality and democracy.

Freedom of speech has never been more important — or more controversial. From debates about what’s permissible on social media, to the politics of campus speakers and corporate advertisements, the First Amendment is incessantly in the news and constantly being held up as the fundamental principle of American democracy. Yet, in reality, it has contributed more to eroding our democracy than supporting it.

In Fearless Speech, Dr. Mary Anne Franks emphasizes the distinction between what speech a democratic society should protect and what speech a democratic society should promote.  While the First Amendment in theory is politically neutral, in practice it has been legally deployed most visibly and effectively to promote powerful antidemocratic interests: misogyny, racism, religious zealotry, and corporate self-interest, in other words, reckless speech. Instead, Franks argues, we need to focus on fearless speech — speakers who have risked their safety, their reputations, and in some cases their lives, to call out injustice and hold the powerful accountable. Whether it be civil rights leaders, the women of the #MeToo movement, or pro-choice advocates, Franks shows us how their cases and their voices can allow us to promote a more democratic version of free speech. 

Told through an accessible narrative and ending with a call for change that urges us to reevaluate the legal precedents and uses of the First Amendment, Fearless Speech is a revelatory new argument that urges us to reimagine what our society could look like. 

Franks’ ideas in the marketplace of ideas

Make of “Fearless Speech” what you will, but the provocative book is getting noticed, which is what it means to provoke (from the Latin meaning to “call out”). Take, for example, her recent participation in an event co-hosted by FIRE and NYU’s First Amendment Watch: The National Constitution Center’s 2024 First Amendment Summit convened a dialogue around the state of free speech in America and around the globe.

View video

A keynote conversation about global free speech with Jason Rezaian of The Washington Post will be followed by discussions of free speech on campus and in and out of the courts. Panelists include Mary Anne Franks, author of the new book “Fearless Speech: Breaking Free from the First Amendment,” FIRE Vice President of Campus Advocacy Alex Morey, FIRE Senior Fellow and former national ACLU president Nadine Strossen, author of “Free Speech: What Everyone Needs to Know,” Jonathan Turley, author of the new book “The Indispensable Right: Free Speech in an Age of Rage,” Keith Whittington, author of “You Can’t Teach That!: The Battle over University Classrooms,” and Kenji Yoshino of NYU School of Law and Meta’s Oversight Board.

See also

Lukianoff weighs in on the powerful vs powerless issue

Enter FIRE’s Greg Lukianoff commenting on Franks’ views in a recent Substack post. Here are a few excerpts:

In a democracy, the majority doesn’t need special protection for freedom of speech because their power is protected by the majority vote. The bully and the bigot easily get their way if they have the votes.

The fact is that only those with opinions that are unpopular with the majority or the ruling elite need the special protection of freedom of speech. It is not, in fact, a coincidence that the Civil Rights Movement, the women’s rights movement, and the gay rights movement (just to name a few) only really took off when the protections of the First Amendment became strongly interpreted beginning in the 1950s. Prior to that, without a strong First Amendment, those movements were easy to shut down.

But the powerful in higher education find this narrative inconvenient. This is because, frankly, they are unsatisfied with the amount of power they have over speech and thought (which is already immense, and regularly abused). They prefer a narrative in which they are still the underdog (which they've never really been) and still the hero (which they very rarely are). At the same time, they’d like to continue to censor “bad” speakers and “bad” speech — not just with new tools, but with a continued sense of self-righteousness about their authoritarian impulses.

[ . . . ]

But the powerful in higher education find this narrative inconvenient. This is because, frankly, they are unsatisfied with the amount of power they have over speech and thought (which is already immense, and regularly abused). They prefer a narrative in which they are still the underdog (which they've never really been) and still the hero (which they very rarely are). At the same time, they’d like to continue to censor “bad” speakers and “bad” speech — not just with new tools, but with a continued sense of self-righteousness about their authoritarian impulses.

Related

• FIRE’s Will Creeley critique on X (“Franks is critiquing the First Amendment. Fine; it’s a free country. But by discrediting the First Amendment, by discrediting its history, she is telling her followers that the First Amendment is less powerful than it is, that they have fewer rights than they do. That is a dangerous bit of gaslighting, as they say on Twitter.”)

Feminist protest on Brooklyn Bridge

Last week while I was walking across the Brooklyn Bridge I came upon some women protesting domestic silence. Yes! That sort of thing is always good news in a free-speech democracy. So meet Nicole Figueroa, an activist energetically exercising her free speech rights.

Global threats to free expression arising from Gaza conflict

In the present report, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression examines the impact of the conflict in Gaza on freedom of expression globally. She highlights attacks on journalists and media restrictions, endangering access to information about the conflict globally; suppression of protests and dissent and undermining of academic and artistic freedoms in a polarized political environment; and restrictions on advocacy for the rights of Palestinian people. Emphasizing the importance of freedom of opinion and expression — enjoyed on an equal basis by all sides — as an invaluable tool for fighting hate and encouraging mutual respect and dialogue, the Special Rapporteur calls on States, social media companies and other private actors to reject double standards on human rights and makes concrete recommendations for them to uphold the right to freedom of opinion political expression in the name of fighting terrorism and antisemitism. She assesses the compliance of States, social media companies and other private actors with international human rights standards, online and offline, and finds an extensive pattern of unlawful, discriminatory [suppression of speech]. 

Related

On Washington Post / LA Times / USA Today editorial endorsement controversy

• David Artavia, “USA Today joins the Washington Post and L.A. Times in not endorsing a presidential candidate. Here’s a closer look at the controversy,” Yahoo News (Oct. 28)
• Jon Passantino & Liam Reilly, “Jeff Bezos defends Washington Post non-endorsement after subscribers flee and staffers resign,” CNN (Oct. 28)
• James Rainey, “L.A. Times, Washington Post see subscription cancellations over not endorsing in presidential race,” Los Angeles Times (Oct. 28)
• David Folkenflik, “Over 200,000 subscribers flee 'Washington Post' after Bezos blocks Harris endorsement,” NPR (Oct. 28)
• “Post columnists respond,” The Washington Post (Oct. 25)
• Ruth Marcus, “For The Post, the wrong choice at the worst possible time,” The Washington Post (Oct. 25)

New book on banned books and the right to read

The ABA Right to Read Handbook: A Reader's Guide to Fighting Book Bans will provide a comprehensive guide to resisting the epidemic of book censorship through local organizing and engaged citizenship. The Handbook is designed for the potential activist who may only have a few hours to spare each month. It identifies the causes, actors, motivations, and strategies of groups attempting to ban books across the country.

It offers step-by-step guides for voting in a school board election, understanding a school board’s policies, contacting elected officials, and more. It features interviews with free expression advocates and state-by-state profiles of local advocacy organizations. Finally, the content is organized into a playbook that will allow concerned readers to begin defending the right to read as soon as book bans arrive in their community.

Related

Lincoln Caplan: Robert Post on academic freedom

The upheaval on American campuses kindled by the Israel-Hamas war has had extreme consequences: resignations of presidents at leading universities, including Harvard; firings of other administrators; discontentment and disciplining of faculty and students; dismay and confusion among alumni; and high-profile, often prosecutorial, congressional hearings.

Deepening this turmoil, two axioms prevail about free speech on campus: everyone knows what free speech is; and free speech is as indispensable there as everywhere else. For Robert C. Post, ’69, Ph.D. ’80, those are far-reaching misconceptions. His ideas reflect his precise and important understanding of academic freedom and freedom of speech.

The essential freedoms, he explains, differ on campus and in the world at large. On campus, there is freedom to discover, develop, and distribute ideas in pursuit of knowledge and diffuse it in education. In the public sphere, there is freedom to debate and deliberate about ideas in expressing and responding to others’ opinions. The former is academic freedom, the latter freedom of speech. Speech has a very different purpose in each sphere, Post explains. Drawing on an exceptional combination of eminent legal scholarship, doctoral training in the humanities, and experience as an academic leader, he maintains that the purpose determines the nature of the freedom.

In the university, the sphere of knowledge, truth-seeking speech is the essential tool. Because of the standards that guide each academic discipline, tenured scholars have the authority to veto the ideas and speech of untenured scholars and students if they don’t meet those standards. In this institutional sense, all that speech in search of truth is not equal.

In the public sphere, however, all individual opinions count as valid contributions in shaping public opinion. John Rawls, Harvard’s great twentieth-century philosopher, said that in public debate, “there are no experts: a philosopher has no more authority than other citizens.” Under the Constitution’s Bill of Rights — the First Amendment’s clause protecting “the freedom of speech” — everyone’s speech about public affairs is equal. Post calls that “public discourse” — “the free flow of ideas in newspapers, in public squares, on debate stages, on theatrical stages, in art galleries and concert halls.”

In the past generation, critics on the right and left have increasingly conflated these principles to argue that, in Post’s words, “universities have failed to protect freedom of expression.” That’s the most tenacious of the many controversies involving academic freedom. As Harvard proclaims in its “Free Speech Guidelines,” “Free speech is uniquely important to the University.”

The strife is about the meanings of academic freedom and of free speech. Politics in general has sometimes bent both concepts to allow for freedom-flouting outcomes (purging as subversives Communists from faculties; prosecuting as traitors journalists who criticize the government). Muddling the principles is especially risky for universities today. Politics often treats universities like any other interest group that needs to be put in its place. Overreaction on social media to those interventions swells the impression that the comeuppance is due.

‘So to Speak’ podcast on categories of unprotected speech

The FIRE team debates the proposition: Should there be any categories of unprotected speech? General Counsel Ronnie London and Chief Counsel Bob Corn-Revere go through each category of speech falling outside First Amendment protection to decide whether it should remain unprotected or if it's time to “remove an arrow from the government's quiver.”

View video

More in the News

• David Bauder, “To fight misinfo, news outlets are putting plans in place to combat false election-night stories,” The Associated Press / Free Speech Center (Oct. 29)
• Derrick Bryson Taylor, “Who Is Tony Hinchcliffe, the Trump Rally Comedian?” The New York Times (Oct. 28)
• Steve LeBlanc, “Harvard Suspends Library Privileges for Faculty Involved in ‘Study-In’ Protests,” The Associated Press / First Amendment Watch (Oct. 28)
• Jim Vertuno, “Alex Jones Fighting Attempt To Sell His Social Media Account Rights in Infowars Auction,” The Associated Press / First Amendment Watch (Oct. 28)
• Douglas Soule, “Florida social media restriction, porn age verification law accused of speech violations,” Tallahassee Democrat (Oct. 28)
• Sarah McLaughlin, “In baffling decision, Harvard excuses violence against student briefly disrupting Chinese diplomat’s speech,” FIRE (Oct. 24)

2024-2025 SCOTUS term: Free expression and related cases

Cases decided

• Villarreal v. Alaniz (Petition granted. Judgment vacated and case remanded for further consideration in light of Gonzalez v. Trevino, 602 U. S. ___ (2024) (per curiam))
• Murphy v. Schmitt (“The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Gonzalez v. Trevino, 602 U.S. ___ (2024) (per curiam).”)

Pending petitions

Petitions denied

Last scheduled FAN

FAN 444: “An open invitation to Justice Neil Gorsuch and Janie Nitze to reply to their new book’s critics”

This article is part of First Amendment News, an editorially independent publication edited by Ronald K.L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.