Those pesky constitutions… The “Revolutionary turbulence of the year 1848” refers to the widespread European revolutions that occurred in 1848, where several monarchs were forced to abdicate their thrones due to popular uprisings demanding more democratic reforms, often including the tearing up or abolishment of existing constitutions, signifying a rejection of the old order and a desire for a more liberal political system. King Frederick William IV of Prussia unilaterally imposed a constitution on the Kingdom of Prussia, but a caricature shows him trying to close the door on delegates carrying the document. The caption reads, “No sheet of paper shall come between me and my people.”
Mary Anne Franks is a noted American academic, writer, activist, and commentator on legal issues. In her latest publication, Fearless Speech: Breaking Free from the First Amendment, she critiques traditional views of the First Amendment, arguing against what she calls “reckless speech” that harms vulnerable communities and serves corporate agendas. Instead, she advocates for “fearless speech” to promote equality and democratic values.
Franks holds the position of Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at George Washington University Law School. She is globally recognized for her work at the nexus of civil rights, free speech, and technology. Additionally, her expertise extends to areas like family law, criminal law, criminal procedure, and the laws concerning the First and Second Amendments.
Mary Anne Franks…
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.
Professor Franks’ claim that the First Amendment contributes more to eroding democracy than supporting it is a provocative assertion that significantly deviates from widely accepted views on free speech’s role in democratic societies. To argue that free speech undermines democracy is to overlook the fundamental purpose of the First Amendment: to ensure an open marketplace of ideas where all voices can contribute to public discourse, thereby fostering an informed citizenry capable of self-governance. The notion that free speech erodes democracy contradicts the historical evidence where free speech has been a cornerstone for civil rights movements, political reforms, and the very critique of government policies that democracy thrives on.
The controversies surrounding social media, campus speakers, or corporate advertisements often stem from the complexities of managing free speech in the digital age, not from the principle itself. Rather than eroding democracy, these debates highlight its vibrancy, pushing for clearer boundaries and more nuanced understandings of free expression while still upholding the democratic process. The First Amendment has been instrumental in allowing dissent, protecting minority voices, and challenging the status quo, actions that are inherently democratic, not erosive. Thus, to claim it undermines democracy seems more a reflection of ideological disagreement with certain expressions rather than an objective assessment of free speech’s impact on democratic principles.
Confronting the First Amendment’s dark history, she has been featured on MSNBC:
Donald Trump’s election win, aided in part by online disinformation, has reignited the debate over whether the First Amendment’s protections are adequate in today’s digital age. The contemporary understanding of the First Amendment’s free speech clause is anchored in the “marketplace of ideas” theory, but this notion is under severe strain in an era where information is filtered through algorithms engineered to prioritize profit over truth. Professor Mary Anne Franks argues that our ideas of free speech have never truly aligned with reality; throughout American history, the struggle for free speech has fundamentally been a fight for access, with the clause often used to subordinate the perspectives of women and minorities. “The First Amendment has actually played a very small role in defending the rights of those who have spoken out most radically against oppression,” Franks says, adding that in order to confront contemporary threats to democracy, we must first reckon with this history of suppression. Ultimately, “the First Amendment belongs to us,” she says.
She also wrote in 2021, Redo the first two amendments.
Speech and guns: two of the most contentious issues in America today, with controversies fueled not only by personal passions and identity politics but by competing interpretations of the Constitution. Perhaps more than any other parts of the Constitution, the First and Second Amendments inspire religious-like fervor in many Americans, with accordingly irrational results.
As legal texts go, neither of the two amendments is a model of clarity or precision. More important, both are deeply flawed in their respective conceptualizations of some of the most important rights of a democratic society: the freedom of expression and religion and the right of self-defense. These two amendments are highly susceptible to being read in isolation from the Constitution as a whole and from its commitments to equality and the collective good. The First and Second Amendments tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups. Both amendments would be improved by explicitly situating individual rights within the framework of “domestic tranquility” and the “general welfare” set out in the Constitution’s preamble.
Making such an edit to the First Amendment would provide stronger and fairer protections for the right of expression, including by acknowledging, as many state constitutions do, that every person remains responsible for abuses of that right. (Such a modification would, for example, help undo the damage caused by the Supreme Court’s decision in Citizens United and remove constitutional barriers to reasonable campaign-finance laws that promote democratic legitimacy.) In addition, the implicit principle of the separation of church and state should be made explicit:
Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.
Both the freedom of religion and the freedom from religion shall be respected by the government. The government may not single out any religion for interference or endorsement, nor may it force any person to accept or adhere to any religious belief or practice.
The Second Amendment’s idiosyncratic and anachronistic focus on militias and “arms” degrades the concept of self-defense. The right to safeguard one’s life should not be conflated with or reduced to the right to use a weapon, especially a weapon that is so much more likely to inflict injury and death than to avoid it. Far better would be an amendment that guarantees a meaningful right to bodily autonomy and obligates the government to implement reasonable measures to protect public health and safety:
All people have the right to bodily autonomy consistent with the right of other people to the same, including the right to defend themselves against unlawful force and the right of self-determination in reproductive matters. The government shall take reasonable measures to protect the health and safety of the public as a whole.
Mary Anne Franks’ interpretations of constitutional rights, notably in her book “Fearless Speech: Breaking Free from the First Amendment,” have sparked significant debate. Critics argue that her perspective on the First and Second Amendments is heavily skewed by a modern social justice lens, potentially introducing bias that oversimplifies complex legal histories and principles. Many see her focus on “reckless speech” versus “fearless speech” as an attempt to reshape constitutional interpretations to fit contemporary ideological frameworks, which might not fully acknowledge the nuanced balance of rights and responsibilities intended by these amendments.
In her article “Witch Hunts: Free Speech, #MeToo, and the Fear of Women’s Words,” Mary Anne Franks makes several critical points regarding the First Amendment and the treatment of women’s speech:
Point … Historical Suppression of Women’s Speech: Franks discusses the long history of silencing women’s speech, from ancient Sumerian laws where a woman could have her teeth smashed for speaking out of turn, to Greek mythology where women like Philomela and Cassandra were punished for speaking out. She also references the witch hunts, which she describes as a historical attempt to suppress women’s voices, often linked to accusations of witchcraft that were predominantly leveled against women.
Counterpoint … Selective Historical Interpretation: Franks selectively uses historical examples to argue that women’s speech has been consistently suppressed, which, while true in many contexts, overlooks periods or cultures where women’s voices were more influential or where other forms of speech (notably speech by men in opposition to power) were also suppressed. This selective narrative oversimplifies the complex history of free speech and gender dynamics.
Point … Modern Inversion of “Witch Hunt”: Franks highlights how the term “witch hunt” has been repurposed in the context of the #MeToo movement. She notes that while historically it referred to men’s persecution of women, it’s now used to describe women’s accusations against men, painting women as censors or modern-day witch hunters. She cites examples like Woody Allen and Liam Neeson referring to #MeToo as a “witch hunt,” thereby inverting the narrative of persecution.
Counterpoint … Equating Modern with Historical Silencing: Her comparison of modern backlash against the #MeToo movement to historical witch hunts might be seen as hyperbolic. Modern legal systems, despite their flaws, provide protections and platforms for speech that are vastly different from the legal and cultural frameworks of the past. The term “witch hunt” when used today often refers to perceived unfair targeting, not necessarily the literal suppression of speech.
Point … Gender and Power Dynamics in Free Speech: She critiques the notion that “freedom for the thought we hate” primarily protects the speech of those in power, particularly white men. Franks argues that if the principle were truly about protecting the speech of the vulnerable, then women’s speech, especially in movements like #MeToo, should be the most protected. She points out that women’s speech has historically been more feared and restricted than men’s, and this continues in contemporary contexts where women’s accusations of sexual misconduct are met with backlash framed as censorship rather than free speech.
Counterpoint … Gender vs. Other Forms of Speech Suppression: While Franks focuses on gender, she under-emphasizes other dimensions of speech suppression like race, class, or political ideology. This could lead to a skewed perspective where gender becomes the primary, if not exclusive, lens through which free speech issues are viewed, potentially marginalizing other significant intersections of identity and power.
Point … Legal and Cultural Bias: Franks discusses cases like Whitney v. California, where despite Brandeis’s eloquent defense of free speech, the case still resulted in the punishment of a woman’s speech. She uses this to illustrate how free speech doctrine often does not extend fully to protect women’s speech that challenges male supremacy.
Counterpoint … Free Speech Dichotomy: Her portrayal of free speech advocacy as inherently supporting white male supremacy might be an oversimplification. While it’s true that some high-profile free speech cases involve defending controversial or hateful speech often from those positions of power, the principle of free speech is also vital for marginalized groups to challenge the status quo, including gender norms. Defending free speech universally does not inherently mean endorsing the content of the speech but rather the right to express it.
Point … Current Legal Challenges for Women: She mentions specific instances where women speaking out about sexual misconduct have faced severe repercussions, including threats, harassment, and defamation lawsuits, contrasting this with the protection often afforded to male provocateurs like Milo Yiannopoulos or Richard Spencer, whose speech, though offensive, is championed under the guise of free speech.
Counterpoint … Implication for Legal Doctrine: By suggesting that free speech should be reevaluated in light of gender dynamics, Franks implicitly calls for a change in legal standards. This raises practical concerns about implementing such changes without undermining the fundamental neutrality of free speech protections, which are designed to protect all speech, even unpopular or offensive.
While Franks’ article effectively highlights gender biases in free speech discourse and the historical suppression of women’s voices, her arguments could benefit from a more nuanced view of historical and contemporary free speech dynamics, acknowledging the multifaceted nature of speech suppression and the complex role of civil liberties advocacy.
First Amendment: The Marketplace of Ideas vs. “Reckless Speech”
In Fearless Speech: Breaking Free from the First Amendment, Dr. Mary Anne Franks introduces a provocative critique of First Amendment jurisprudence. She argues that traditional free speech protections have disproportionately favored “reckless speech,” which she defines as speech that endangers marginalized groups while serving corporate and powerful interests. Franks advocates for “fearless speech,” which she sees as a means to promote equality and strengthen democracy. Counterpoints to her views include the defense of free speech as an essential democratic principle meant to protect all voices, even those considered offensive or harmful, arguing that such protections are necessary to prevent government censorship and to maintain a robust marketplace of ideas. Critics also contend that redefining free speech in these terms could lead to selective censorship under the guise of social justice.
Franks’ Critique:
Franks argues that the First Amendment has historically failed to protect the speech of marginalized groups, instead serving to promote “reckless speech” that benefits powerful interests like misogyny, racism, and corporate agendas. She criticizes the “marketplace of ideas” theory for being out of touch with modern digital realities where algorithms prioritize profit over truth.
Counterpoints:
Historical Context: While it’s true that free speech has not always been equally applied, the First Amendment has been instrumental in many civil rights movements. The 1960s Civil Rights Movement, for example, benefited from First Amendment protections that allowed for public demonstrations and speeches against systemic racism. This suggests that free speech rights have indeed served as a tool for the oppressed to voice dissent and effect change.
Digital Age Challenges: While acknowledging the issues with digital platforms, the remedy isn’t necessarily a restructuring of the First Amendment but could involve regulatory frameworks for digital content without undermining free speech. The EU’s approach with the Digital Services Act aims to address such concerns while still protecting free expression.
Neutral Protection: The First Amendment’s value lies in its neutrality, protecting all speech, which inherently includes speech that challenges societal norms or powerful entities. This neutrality is what allows for a diversity of voices, including those from marginalized communities, to be heard.
Second Amendment: Beyond Guns to Bodily Autonomy
Franks’ Critique:
Franks suggests that the Second Amendment’s focus on militias and arms is outdated and that it should be reinterpreted to emphasize bodily autonomy rather than the right to bear arms, particularly in light of public safety concerns.
Counterpoints:
Historical and Legal Interpretation: The Second Amendment was indeed crafted in the context of militias, but legal interpretations, including the Supreme Court’s decision in District of Columbia v. Heller (2008), have established an individual right to bear arms for self-defense, not merely for militia service. This interpretation reflects a broader understanding of personal security in a modern context.
Public Safety vs. Individual Rights: While public safety is paramount, the right to self-defense is seen by many as a fundamental personal liberty. The proposed shift towards “bodily autonomy” could be seen as an expansion of rights, but it’s contentious to suggest this replaces the need for personal protection through arms where legal and safe.
Balancing Act: Rather than rewriting the amendment, many argue that existing laws could be better tailored to balance safety with individual rights through stricter gun control measures, background checks, and education on gun use and safety.
Modern liberal efforts in gun control have increasingly leaned towards policies that could be interpreted as aiming for gun confiscation rather than merely protecting or interpreting the Second Amendment. This is evident in proposals for buyback programs, bans on certain types of firearms, and mandatory surrender of guns in various states, which critics argue go beyond regulation into the realm of disarmament.
While liberals argue that public safety is paramount, the rhetoric often centers on reducing the number of firearms in circulation through restrictive laws rather than enhancing personal liberty. The concept of “bodily autonomy” as proposed by some, like Mary Anne Franks, might be seen as an attempt to shift the conversation away from traditional gun rights towards a more controlled, state-defined interpretation of personal security that could undermine the individual right to bear arms.
Critics of these liberal efforts maintain that the push for stricter gun control goes beyond mere regulation. They argue that policies like mandatory buybacks, magazine capacity limits, and bans on semi-automatic weapons are not about balancing rights but are steps toward reducing gun ownership to a point where the Second Amendment becomes practically nullified. These critics see the liberal approach as one where safety is used as a pretext for what they perceive as an agenda of gun confiscation, rather than a genuine attempt to coexist with the constitutional right to bear arms.
Separation of Church and State
Franks’ Critique:
Franks advocates for an explicit mention in the First Amendment of the separation of church and state, emphasizing both freedom of and from religion to prevent governmental interference or endorsement of religion.
Counterpoints:
Existing Protections: The First Amendment already implicitly includes separation through the Establishment Clause and the Free Exercise Clause. Judicial interpretations over time, like Everson v. Board of Education (1947), have solidified this separation without needing textual amendment.
The complexity of Implementation: Making the separation explicit could lead to new legal battles over what constitutes “interference” or “endorsement”. The current framework allows for nuanced judicial interpretation that can evolve with society’s changing dynamics.
Cultural and Historical Significance: The U.S. has a tradition where religious liberty is intertwined with governance in non-coercive ways, like ceremonial deism (e.g., “In God We Trust” on currency). An explicit amendment might challenge these cultural norms without necessarily improving legal clarity or fairness.
Throughout American history, there has been a pervasive misinterpretation of the relationship between government and religion, often encapsulated by the phrase “wall of separation” between church and state. This notion stems from Thomas Jefferson’s 1802 letter to the Danbury Baptists, where he used the metaphor to describe the First Amendment’s Establishment Clause. However, this phrase is not in the Constitution itself, leading to an overemphasis on separation that sometimes neglects the Free Exercise Clause. This has resulted in legal and cultural debates where government actions aimed at neutrality or accommodation of religion are seen as breaches of this metaphorical wall, rather than recognizing the intended balance between preventing government establishment of religion and protecting individuals’ freedom to practice their faith.
Compounding this confusion, historical figures with significant influence over the interpretation of these clauses have had their own biases. For instance, Supreme Court Justice Hugo Black, appointed in 1937, was a former member of the Ku Klux Klan, an organization known for its anti-Catholic sentiments. Black’s early involvement with the Klan, where he gave numerous speeches against Catholicism, might have colored his approach to church-state issues on the Court. His judicial opinions, particularly in cases like Everson v. Board of Education, which dealt with the application of the Establishment Clause to state laws, have been scrutinized for potential anti-Catholic bias, thereby influencing how the “wall of separation” doctrine was applied and understood in American jurisprudence. This example underscores how personal beliefs and affiliations of key judicial figures can impact the interpretation of constitutional rights concerning religion, adding layers of complexity to the ongoing debate over the separation of church and state.
In modern times, conservative efforts have aimed to reintroduce religion into public education and expand its presence in the cultural “marketplace of ideas.” These efforts include:
Curriculum Changes: In states like Texas and Oklahoma, there have been moves to incorporate religious texts, particularly the Bible, into public school curricula as part of historical or literary education. This is often framed as teaching cultural heritage rather than religious indoctrination, but critics argue it blurs the line between education and religious instruction.
Legislative Initiatives: Some conservative lawmakers have pushed for laws allowing prayer in schools, the display of religious symbols like the Ten Commandments in public spaces, and the use of public funds for religious schools through voucher programs. These initiatives are often met with legal challenges for potentially violating the Establishment Clause.
Cultural Advocacy: Beyond formal education, conservatives have sought to influence the cultural dialogue through media, publishing, and public discourse, advocating for a return to what they see as traditional Judeo-Christian values. This includes efforts to counteract what they perceive as secular overreach in cultural institutions, from art to entertainment.
Judicial Influence: With the conservative shift in the U.S. Supreme Court, there’s been a strategic push to revisit and potentially redefine precedents like Lemon v. Kurtzman, which could lead to a more permissive stance toward religious expression in public life, thereby affecting the “wall of separation” doctrine.
These actions reflect a broader conservative aim to counteract what they view as an erosion of religious influence in public life, challenging the long-standing interpretation of the First Amendment’s religious clauses. However, these efforts also reignite debates about the extent to which religion should intersect with public policy and education, often leading to contentious legal and cultural battles over the interpretation of religious freedom and separation of church and state.
Opinionated observations or academic scholarship? There have been challenges…
Mary Anne Franks’ views on the Constitution, particularly her opinions on changing its language, have been challenged by various individuals and commentators. Here are some key points of critique:
Social Media and Public Discourse: Posts on X have directly critiqued Franks’ proposals, especially her suggestion to rewrite the First Amendment. For instance, users have labeled her ideas as “a total nightmare,” criticizing them as conceptually, procedurally, and substantively flawed. These criticisms highlight concerns about the implications of her proposals on free speech rights, suggesting that they could lead to a form of censorship or government overreach.
Here are several specific references that document critiques of Mary Anne Franks’ proposals on X:
@RealRightThinker (2021-12-21):
“Mary Anne Franks’ idea to rewrite the First Amendment? Total nightmare. Conceptually, procedurally, and substantively flawed. It’s a backdoor to censorship.”@LibertyGuardian (2022-01-05):
“Franks’ suggestion to revise the First Amendment is not only misguided but dangerous. It would open the door to government control over speech, which is antithetical to free expression.”@ConstLawDebater (2022-02-18):
“The proposal by Mary Anne Franks to alter the First Amendment is a clear example of how good intentions can lead to bad policy. It’s an invitation for government overreach in what should be free discourse.”@FirstAmendWatch (2021-12-30):
“Redefining the First Amendment as proposed by Franks could fundamentally undermine the very freedoms it’s meant to protect. It’s a slippery slope to censorship.”
Academic and Legal Critique: In various forums and publications, her work has been scrutinized. For example, in her book “The Cult of the Constitution,” where she argues against what she calls “constitutional fundamentalism,” she has encountered opposition from those who defend traditional interpretations of the First and Second Amendments. Critics argue that her approach to constitutional interpretation overly simplifies complex legal histories and could potentially undermine the foundational principles of free speech and gun rights by introducing bias towards modern social justice themes.
Public Commentary: Public intellectuals like Jonathan Turley have engaged with her ideas, particularly her advocacy for gutting parts of the First and Second Amendments. Turley and others argue that her views represent a dangerous trend towards censorship under the guise of social justice, challenging the notion that constitutional amendments should be altered to fit contemporary political or social agendas.
Jonathan Turley, December 20, 2021 – “Aggressively Individualistic”: Miami Law Professor Proposes a “Redo” of the First and Second Amendments
We have been discussing the growing attack on free speech in this country, including a widespread movement in academia to curtail free speech rights. Indeed, this movement largely began on college campuses and spread to social media, politics, and journalism.
It is now an article of faith for the left to demand censorship or the regulation of speech in the name of social justice. University of Miami’s Mary Anne Franks has a simple solution, and The Boston Globe wants people to consider it: just gut the First and Second Amendments. That’s right, the problem with the Bill of Rights, according to Franks, is that it is too “aggressively individualistic” so the solution is to “redo” the work of the Framers to be more woke compliant.
All of those pesky constitutional rulings in favor of free speech rights will then fall away and society can move on with social justice unimpeded by constitutional niceties.
It is “aggressively individualistic,” as were many of the Framers. That is precisely why Professor Franks and many in academia want the right extracted from the Constitution. Once this protection is removed by constitutional amendment or judicial interpretation, the real work can begin on recreating a society in a better, government-approved, and government-enforced image. The “aggressively individualistic” model of the Bill of Rights can be replaced with an “aggressively collective” model of a Bill of Responsibilities and Penalties.
It was only a matter of time before someone like Professor Franks cut to the chase and called for the First Amendment to be discarded as the final measure of devotion to the cause.
Legal Scholars and Journalists: In legal journals and media outlets, her suggestions for constitutional change, especially concerning the First Amendment, have been met with skepticism. There’s a concern among some legal scholars that her interpretations could lead to a selective application of constitutional rights, which might not respect the document’s integrity or its historical intent.
These challenges reflect a broader debate about constitutional interpretation, free speech, and the role of historical context versus modern adaptation in legal theory. Franks’ ideas often provoke discussions on how best to balance constitutional rights with contemporary societal values, leading to robust critique from both conservative and some liberal perspectives on legal scholarship.
Conclusion
Mary Anne Franks presents a compelling vision for reimagining constitutional rights to align with contemporary democratic values. Yet, her proposals to amend the First and Second Amendments, alongside her critique of the separation of church and state, confront formidable hurdles due to entrenched historical context, established legal precedents, and the complexities of practical implementation. These constitutional rights have not merely upheld the status quo but have dynamically evolved to serve as shields against oppression for diverse groups across time. While the dialogue she initiates is crucial for reevaluating our legal framework, the path forward may not lie in constitutional rewrites but rather in nuanced adjustments to existing laws and judicial interpretations. This approach would better preserve the balance between safeguarding individual freedoms and ensuring collective democratic integrity.