Breaking Free from the First Amendment: A Conversation with Mary Anne Franks

Audio of this conversation is available via your favorite podcast service.

In her new book, Fearless Speech: Breaking Free from the First Amendment, Dr. Mary Anne Franks challenges First Amendment orthodoxy and critiques “reckless speech,” which endangers vulnerable groups and protects corporate interests, in order to advance “fearless speech,” which seeks to advance equality and democracy.

What follows is a lightly edited transcript of the discussion.

Justin Hendrix:

Good morning. I'm Justin Hendrix, Editor of Tech Policy Press, a nonprofit media venture intended to provoke new ideas, debate and discussion at the intersection of technology and democracy. In the United States, the First Amendment is considered by many to be theoretically neutral, but in reality it's often been used to support powerful people in groups and to protect harmful forces such as misogyny, racism, religious extremism, and corporate greed. What today's guest might call reckless speech. I caught up with Dr. Mary Anne Franks on the occasion of the publication of her new book on the subject.

Mary Anne Franks:

I am Mary Anne Franks. I am a professor of law at George Washington Law School. I'm also the president and the legislative and tech policy director of the Cyber Civil Rights Initiative, and I'm the author of this new book entitled Fearless Speech: Breaking Free from the First Amendment.

Justin Hendrix:

Dr. Franks, this is not the first time you've been on this podcast, and I think we're going to talk about some of the same themes that we've been talking about over the past couple of years. This is your intellectual project, this is your vocation. Where are we on the arc of Dr. Frank's efforts here? Where are things headed in the future?

Mary Anne Franks:

Well, I wish I had good news. I'm a little apprehensive about where we're heading right now, but I'd like to believe that things can turn around. I think of this as kind of an arc from, let's say my first book, the Cult of the Constitution, which came out in 2019 was really intended to be a diagnosis of what I was calling constitutional fundamentalism, this kind of quasi-religious attachment that people have to the Constitution in particular to the First Amendment. I also, in that book, went into the Second Amendment and how parallel I thought some of the interpretations were there, these very excessive absolutist individualistic takes that were really eroding democracy. And what I am hoping that this new book does is takes the next step in regard to free speech and says, "Let's really zero in on what's going wrong with the First Amendment, how little it actually does to protect pro-democratic speech, how much it does to defend anti-democratic speech and try to think through something that is better than that."

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And I mean that both in the sense that we are hopefully taking away some kinds of lessons for the legal doctrine, different ways to interpret the First Amendment, different ways to critique cases, but also just to stop letting every conversation about free speech be dominated by this really legalistic reductionist view, that really is the First Amendment. So I'm hoping that we can start doing that, start acknowledging how things have gone pretty badly and then start to repair it. And I guess the only sort of note of optimism I would say there is that I do think there's a intuitive sense among the general public that things aren't going well, that, whatever it is we thought the First Amendment was supposed to be doing, protecting us from censorship, allowing us to exchange ideas freely with each other, that's not working.

It's not helping us think through our conflicts. It's not helping us lower the temperature. If anything, it's doing the opposite. Everyone can invoke the First Amendment. Everyone can invoke through this concept of three speech for any purpose they want. And it doesn't actually keep people from being censored or punished or repressed or any of that. So I think there is a general sense of dissatisfaction, which hopefully can lead to critique and then something better in its place.

Justin Hendrix:

So we're going to get into what you mean by fearless speech as opposed to free speech. But I want to just pause on this diagnosis. You say in the prologue, as you just said here, "This is a book that takes speech seriously." And as such, it is about speech first and the First Amendment second. The dysfunction of current American free speech discourse is largely attributable to the inversion of that order. How did we get to this moment where things are so inverted?

Mary Anne Franks:

I think there are multiple factors, and one of them is what I referenced before that that kind of fundamentalist tie that many people have to certain rights, and where does that come from? Well, it comes from the kind of collective idealization we have of the founding fathers, even that term, the founding fathers, and that they are treated as these kind of semi-divine beings. We're taught as children that America is this very special story almost divine or really thought of as a divine story. And so the constitution, the First Amendment, those things must also be divine in some ways or kind of elude reason and are this higher register. So I think that's the underlying basis that you have this tendency towards fundamentalism that is reinforced with the way that we educate children, the way that we all know about thinking about the specialness of United States.

And then I think it gets reinforced by what I think always drives fundamentalism, which is self-interest, the sense that we want to believe that we are doing something other than acting selfishly. We want a pretext, we want something noble. We want to say we're acting not because we just want to be selfish, but because of the First Amendment or because of the Constitution. So I think that's another piece of it. It's a story that we tell ourselves to try to get the results we want is to say, "Oh, it's not me that's causing this result, it's the First Amendment. It demands that this thing happen." And then I think another factor is the internet very broadly speaking or technological evolution, generally, because so much of what happened in the early nineties and the 2000s, the major players moving in the tech industry, which have really hijacked, I guess to use a pejorative sense, this language of free speech and tell people free speech is going to happen online like it's never happened before.

And so for decades you've had all this rhetoric of the cyber libertarian saying, "Come online because that's where free speech is." And things got very fuzzy, very fast about, do you mean free speech or do you mean the First Amendment? Do you mean the internet acting sort of like the government? What does that really mean? And I think the tech industry, especially as it became more profit dominated, really just leaned into all that ambiguity just to sort of offer this product to Americans and say, "This is where free speech happens. And so don't ask a lot of questions, just sort of feel the fact that you get to post on Facebook, isn't that amazing? And it's for free." So there's multiple meanings of free being traded here and this kind of what I call in the book, this consumerist conception of your constitutional rights. Here's a product that lets you feel like you are expressing or enacting one of your liberties. I think that's a big player in all this.

Justin Hendrix:

I want to come back to the behavior of the social media platforms and the perspectives, it would appear some of the largest oligarchs of running these platforms like Elon Musk and Mark Zuckerberg. But the book is replete with different examples of, I guess, free speech absolutism resulting in very strange outcomes or at least strange to folks who I think would look at things in a more straightforward way. I want to come to one example that you point out in the book, this case Counterman v. Colorado, which I thought was one in particular that really sort of brings to the fore just how strange a lot of this First Amendment thinking can be ultimately in practice. Tell us about this case.

Mary Anne Franks:

Yeah, Counterman is really one of the most, I think, dramatic illustrations of how things have gone terribly wrong under the First Amendment. And the case starts as a stalking case or it is a stalking case. You've got a musician in Colorado who is thriving. She is on her way up and there is a person that she doesn't know who starts to contact her obsessively through Facebook. She has a Facebook page. She allows people to message her because she is an up and coming musician and she'd like to stay in touch with her fans. But this person is writing really disturbing messages. And again, she doesn't know who this person is and he's writing things that seem to indicate that he is following her. He's talking about the clothes she's wearing or who she's with or what vehicle she's in. And so she tries to block him and over and over, every time she blocks him, he just creates a new account and just messages her again and this on for years and years and years.

And she becomes so worried that this person is going to show up and do something harmful to her because some of his messages seem quite violent that she stops performing, that she withdraws from the work from her art. And this is particularly exaggerated for her. The concern is exacerbated for her when she finds out she has someone look into his name to figure out if he's got a record and it turns out that he stalked other people, his family members and has made some extremely explicit and violent threats against them. So she gets very concerned about the possibility of danger. And what happens is he is charged with stalking and convicted under Colorado law. Colorado has multiple stalking statutes as many states do, but one of the forms of stalking is, if you engage in communications that are unwanted and would be terrifying to a reasonable person. So, what is sometimes called the objective standard, that is, would a reasonable person receiving these messages be frightened by what they're receiving?

And he's convicted of this and he raises the objection. He contests his conviction by saying, "I should not be allowed to be convicted for this kind of speech." And he phrases it as speech, his free speech to engage in these messages, "because I didn't intend for her to be scared. I am wanting her attention. I want to communicate with her, but I wasn't trying to scare her and I shouldn't be convicted of stalking if I wasn't trying to scare." And so the case becomes in some ways about, do you think that it matters whether the mental state of the person who's making the, again objectively terrifying statements, how much should it matter in this case? Should it be, it doesn't matter at all. It matters that it's objectively terrifying. Should it matter a little bit as in maybe he's being reckless with regard to the possibility that someone is going to find it terrifying or does it require that he actually intend for her to be terrified?

And this was an interesting array of free speech scholars on both sides of this issue. I wrote an amicus brief for First Amendment scholars who were in favor of the state's position, but they were First Amendment scholars on the other side saying, "This is an important free speech case for his conviction to be overturned," and domestic violence victims' advocates were saying, "Think about what this would mean if you say that a person who doesn't truly want to hurt somebody but just believes that this person really is meant to be with them and that they just need to keep contacting them and is completely delusional about whether there's a relationship or there's a wanted aspect of these communications, we're going to say that that person can't be convicted of stalking as opposed to saying that he can."

And that's effectively what happens in this case. The Supreme Court says, "Well, we'd really need to think about some subjective intent on the part of the person being charged. So maybe he doesn't have to have the full purpose of intending to terrify someone, but we the court are going to say, 'He has to have at least thought about the possibility that it was going to be terrifying and dismissed it.' If it's just the case that he's thoroughly delusional, completely in love with this person, even though she's given him no sign, then the court says, 'Well, that's not really stalking, that's protected free speech.'"

Justin Hendrix:

In the book you say that stated more plainly, "The court declared that stalking is protected free speech if the stalker truly believes that his repeated objectively terrifying conduct is welcome. The more deluded the stalker, the more constitutionally protected the stalking is.” Just an extraordinary outcome. And you point out, this is not necessarily the product of the conservative supermajority, this is an example of the majority thinking about the First Amendment on the Supreme Court these days. This opinion is authored by Elena Kagan.

Mary Anne Franks:

Exactly. This is not one of the situations where we can say, "It's all the conservatives lining up against others who care about domestic violence or who care about women's rights." It's seven, two and the only two dissenters are both the conservative justices, that was Barrett and Thomas. And what you have here are liberals and conservatives coming together on this First Amendment front to say, "We think that the potential chilling effect of stalking laws on someone who might not really mean to stalk someone, we think that that's far more important than the actual effects on victims of stalking as were clearly laid out in this case. And to me, this is what is so interesting about this case is that it puts you in this really dramatic way. It says, "This woman, this artist, this musician was not able to do what she wanted to do. She was chilled from her own expression because of the objectively terrifying nature of these communications."

But the court says, "The real harm here would be is if you convicted people like the stalker because what if he didn't really mean to be a stalker? What if he meant to do something else that was politically important or interesting or otherwise useful?" And so you have an entirely hypothetical value of that person's speech and the entirely hypothetical chilling effect that it might have to have convictions for stalking as opposed to the actual effect that you could see of stalking on a victim who was no longer able to engage in the expressive activities that she would've wanted to engage in. So the court here, again, conservatives and liberals coming together to say, "That's what we care about. We think that his potential harm is far more interesting and important than hers."

Justin Hendrix:

The idea that runs through this book, as you've already said here in this conversation, is that we're more or less dealing with here at a meta-level, legal system that favors supremacy, and in particular, white male supremacy. This example that we've just been talking about comes from your chapter called Burning Women, and there are many other examples throughout this that correspond to racial dynamics. You get into scenarios that involve fights between far-right extremists, white supremacists, events like the Unite the Right Rally in Charlottesville and some of the events that occurred around it, many other examples that fit that mold. I just want to pause on that broader diagnosis and ask you, is this just sort of the way things have always been in the United States or is this a moment where things are getting worse?

Mary Anne Franks :

It may be both. It may be that there is a version of this that has always been true, and it might be that it's getting worse, partly because we've convinced ourselves that it's not true. So if we think about how early on, early First Amendment law didn't really seem maybe so stark in the kinds of ways that I'm suggesting that they are now, that's probably due to the fact that when you didn't have any realistic threat to power, you don't necessarily have to make these kinds of choices when you can just assume that the First Amendment means that white wealthy men get to say what they want up to a certain point and everybody else doesn't count, there's very little law and litigation that you need to have about that. You just assume it, and that's what happens. It's not really until there are people who are contesting the we, the people as it was conceptualized at the time of the founding, that you really have to start dealing with these debates about, well, who is it who gets to speak? Who gets to have these rights?

And the history we tell ourselves about the First Amendment is that that one is a really progressive story. The First Amendment is the means by which those people who weren't included get the fight their way into that kind of protection. And my suggestion is that that's not really what history shows us at all because when you look at the most revolutionary radical speech that was trying to advocate for racial or gender equality, what you see is oppressive crackdowns not just by private citizens, but also by the government and the First Amendment's got nothing to say about that. So you have these highlighted case that we like to tell ourselves about around the time of the turn of the 20th century. You get the early war cases where they're starting to jail dissidents and people who are protesting the draft.

And we talk about that like it's a story of progress, but if you look at those cases, all of those people protesting were jailed, right. They all lost. And it wasn't until you get to the 1960s that you actually see the so-called sort of expanded version of the First Amendment really coming into play. And I would suggest not coincidentally, that's when you start to see the people who are invoking it are not the communists and the people who are protesting the war or the women who are arguing for suffrage, it's the KKK leaders, who are saying, "We really need more free speech." And suddenly the court says, "You know what, that's right. They really should." And trying not to, for those who would ignore the fact that the history travels in this direction and say, "Well, it's just incidental that it just so happens that in the 1960s, that's where we got it. It was the KKK leader. That's not intentional."

I don't think that that is a plausible interpretation. There's a reason why the court was suddenly willing to be more maximalist with the First Amendment with those cases, which is not to say that there are not some really important First Amendment civil liberties, civil rights cases. It's merely to say that by and large, stepping back, structurally speaking, the First Amendment comes into its greatest force and power when whatever is being said is something that either supports or does not at least contradict white male supremacy. And the times at which the First Amendment is weakest is whenever the speech in question is challenging any aspect of racial patriarchy.

Justin Hendrix:

So from burning women to burning the public square, let's talk about social media platforms themselves. You spend a good amount of time, unfortunately, thinking about Elon Musk and what he means to these issues. You're kind of arguing that essentially the tech industry, the tech platforms have implicitly pitched in with this general approach thinking about free speech in the United States. That means that fundamentally they are also in service to this broader culture of white supremacy, of white male supremacy. How are you thinking about people like Elon Musk and Mark Zuckerberg and their views on free speech at this moment, just on the eve of this election?

Mary Anne Franks:

Well, it's incredibly concerning. And the Elon Mess problem, just to stick with that for one moment, is such an extraordinary one because it's not as though prior to Musk's takeover of Twitter, that things were going well. It's not as though the tech industry was being particularly nuanced or invested in actual democratic discourse or trying to provide an actual public [inaudible 00:19:39]. And all those things are false, is what I'm suggesting, is that the situation was already really bad. What we've really got is a bunch of corporate, really large corporations that are saying to themselves, "We are providing these services not because we're interested in democracy and freedom of speech, but because the more people speak online, the more money we can make and the more we can convince them that any decisions that would inhibit speech online would be censorship because it feels like censorship to them now because we have offered them this really compelling product."

So I think that was the situation before you got the bad turn, the worst turn, I guess you could say with the Musk takeover, in some ways, some people watching the evolution of Twitter to X would say, "Well, it went from being a free speech platform to being Elon Musk's playground, and he's betraying the principles of free speech that Twitter used to have." And I would say, "No, he's masked off certainly, but he's essentially acting out exactly what you would expect because in many ways the tech industry does emulate the way the First Amendment has played out, which is once again, the most powerful protections are for those who are going to support reinforce or at least not contradict the power of men over women, the power of white over black. That's what this is about."

And the fact that it must be so transparent about it and that he's so self-centered about it, that he makes it really about him, literally we'll get on his own platform after saying, I want to provide a new public square. I'm really going to be committed to free speech and then say, "Oh, you criticize me. You're off my platform." But it's so transparent with him and that he has no shame about that is new, that's different. But that is essentially what every free speech absolutist really is when we scratch the surface. They mean, "I want free speech that I think is okay, and anything that's criticizing what I think is okay, or me personally, is not free speech and will get booted out."

Justin Hendrix:

And where do you situate Mark Zuckerberg in this? I mean, he's not quite the same as Elon Musk, he says he's trying to be neutral these days.

Mary Anne Franks:

Yeah, I'd say that's the kind of bad neutrality that is really its own kind of problem. So it is different. It's not quite as egotistical. Zuckerberg isn't using his own platforms the way that Musk is. And the other thing that Zuckerberg is not doing that Musk is doing is, Musk is suing everyone. So the great, irony is not even the strong word for it, that Musk is protected for all the decisions he makes on his platform, he can't really get sued for any of that because of Section 230, but he can go out and sue nonprofits, he can go out and sue individuals for saying things that he does not like, and that's new, right. Zuckerberg is not quite like that, right. This is someone who's trying to more or less toe the middle line, but you think about the impact that Facebook has had on public discourse when you know the extent to which Meta's products have actively fueled so much disinformation and so much harassment and so much exploitation.

And that time and time again, we know from whistleblower documents and other evidence and reporting on this that they've known about it, they knew they could adjust it. They know that they could do better, and every time they chose profit first. And at the same time have said, "Why don't you trust us and you should keep trusting us no matter how many scandals go through because we don't think anything's actually going to happen to us. We're not going to get regulated." And they've been right. That's the gamble that has paid off for them for many years now.

And then you have a really, though, dark turn, I think with Zuckerberg recently when he's writing this letter that is aligning himself in some ways with the far right members of Congress who have begun this more recent attack on researchers, on misinformation researchers, disinformation researchers who have made these crazy claims that have made it all the way to the Supreme Court to say that, "If you want to correct COVID misinformation, you're colluding," and therefore that censorship completely distorted view of the First Amendment that anyone who studies the First Amendment knows is true, and Zuckerberg could have just stayed out of that because this isn't something he has to involve in, but he decides to write a letter where he basically says, ‘Oh, yeah. Actually all that's true. The government was trying to pressure us. They were trying to make a censor information. It's so awful that we were put in this position.’ That's a bad turn, that's a new development. And it's almost certainly that he's hedging his bets about what's going to happen with the next election, but that is a really terrible sign.

Justin Hendrix:

It almost seems to me like with him, he's retreating to a place of comfort. He never wanted to believe that this invention of his had been more harm than good in the world. To some extent, it might be more comfortable to imagine that all these folks who are telling him that the platform is contributing to these societal harms, that on some basic level they were wrong.

Mary Anne Franks:

That may be right. I mean, it's hard to read what his actual feelings about the matter might be, but one thing that I think is really clear and something that I've argued for some time now is to say, "This First Amendment invocation or the kind of vibes of the First Amendment that the tech industry was writing on for so long was really a kind of [inaudible 00:24:52] of pure profit passivity," right. So profit-oriented, passivity. In other words, if you are overrun on your platform of white supremacy and harassment and sexual exploitation and you just don't want to do anything about it, right. At some point because people get upset about that, it's not a great answer to say, "We just don't care." It's a good answer to say, "Well, we don't believe in censorship." It's a good answer to say, "Well, because of the blah, blah, blah First Amendment, we're not going to take some of this down."

It's such a way to launder your own passivity. It's such a way to launder the fact that you don't want to take the stuff down maybe because you either find it perfectly acceptable, but even maybe worse, cynically speaking, you don't care about whether or not it's acceptable. What you care about is it's profitable and you want to be able to say, "Oh, but I'm not taking it down for some kind of profound reason and that profound reason has something to do with free speech." I think that's the category Zuckerberg probably falls into. And yes, it's very convenient for him now, if the discourse is now shifted to say, "Oh, taking down white supremacy and really violent misogyny," you can have members of Congress saying, "That's censorship," And Zuckerberg standing up and saying, "Yes, exactly that is censorship," I think does work really well for him.

Justin Hendrix:

We talked about how that diagnosis intersects with today's technology landscape. I want to talk a little bit about your solution, which is the idea of fearless speech. And I just want to pause on the term for a minute because understanding this term also means we've got to understand some other concepts like parrhesia, if I'm pronouncing that correctly. Tell me, what does a have to know to know what you mean by fearless speech?

Mary Anne Franks:

So where it originates from, to give some background on this notion, and it's been a while since I've studied my Ancient Greek. I think the pronunciation is parrhesia, but I could be wrong about this, but this is what I'm sticking with and the concept there, and the reason why I find it so compelling is because we get a lot of our best ideas from the Greeks. And so when we think about what is it that the Greeks had imagined when they were speaking about this right that we now call freedom of speech. And the concepts, there's a couple of different concepts that they used to talk about different aspects of freedom of speech in a democracy, and I'll set the other ones aside to focus on parrhesia.

This is a word that can get translated as free speech, but the French philosopher, Michel Foucault was kind of riveted by this concept in a whole series of lectures where he says, "Really, when you see what they're talking about here, they don't mean free speech in the sense of everybody can say what they want with no consequences. What the Greeks are really getting at is a concept of speech that says, essentially, 'Instead of free speech, a fearless speech,' meaning, people who speak meaningfully to those who are more powerful than they are, and not only speak to them, but speak to them critically, and by doing so, put themselves in danger. That is the speaker, him or herself is speaking to someone with more power and is criticizing that person with more power."

And the gloss that Foucault puts on this concept is to say, "This is what's really essential for democracy. It's not letting people just say whatever they want. It's how much do you support the idea that people can speak out against those who have more power and criticize them for their injustices and their abuses?" That's the measure of democracy. That's the measure of actual freedom. And I want to use that concept to say that would be a much more, it is a much more, it's a richer and more interesting and more nuanced as a framework for thinking about freedom of speech than our very reductionist view of free speech that we get through typical First Amendment, civil libertarian rhetoric.

Justin Hendrix:

So you've got some examples of folks who you think are profiles in fearless speech, a range of names that get mentioned here, the focus on Elizabeth Freeman, Daisy Bates, Dorothy Thompson, William Baird. Which one are you thinking about today, if I asked you to meditate on one of these individuals?

Mary Anne Franks:

That's a hard question 'cause there's something unique about each of them, and that's the reason why they're included. And I should say too, it's in the section of the book where I give these profiles, I give them sort of the longest amount of attention or the most sustained attention. But throughout the book, there are multiple examples of fearless speakers that I also want to say, maybe to hold up as models, but I think a lot about Dorothy Thompson. I think a lot about the fact that she, as someone who was a prominent journalist, a prominent voice in their media, as Hitler is coming to power, as she's seeing what is happening in Nazi Germany, as she has had direct experience with what it looked like for fascism to come to Germany and she's back in the United States 'cause she gets expelled from Germany because Hitler is so angry at the things that she has said.

She calls him, "A little man." She's expelled from Germany and she's trying to get Americans to care about what is happening. She's saying to them, "You may think of this as kind of a Jewish issue, but it's not. This is about our humanity. You don't realize how much of a threat this person really is." And then there's this extraordinary moment that is, I think so relevant for our time when you've got this rise of anti-Semitism at home, right. You've got these people who are so fascinated by the Nazis that they're basically trying to be Nazis in America. Now you can see why it is that I think this is a particularly relevant moment in history. You've got this huge gathering in Madison Square where all of these Americans are showing up voluntarily to essentially become or to praise Nazism and Dorothy Thompson is outraged by this.

She can't believe that this is happening on her own shores, and I just love the scene that I try to give it as much credit as I can or try to describe it in as much detail as I can in the book where, she's on her way to some other fancy event, she's wearing an evening gown, she's very regal, and she stops off at Madison Square and there's all these police out that are trying to keep counter-protesters away. So the people who want to protest the Nazi rally are being kept away. She's able to get inside because she's got a press pass. She's muscling her way in there. And as these Nazi after Nazi is getting up and praising Hitler and praising basically anti-Semitism and using all of these concepts to gin up this sense of hatred and objectification of Jewish people, she starts heckling. She's right there in the front row when she's heckling. She's laughing at these people and she's calling it, "Bunk." And she's saying, "You sound exactly like the Fuhrer. You sound exactly like Hitler." And she's escorted out quite violently.

And then she writes about it. She writes about how the entire reason why the Nazis in America were allowed to have this gathering was because of free speech. Because some view that says, "Well, the First Amendment says you have to let them do this." And she says, "What does it mean to say that there is going to be protection for this kind of rally and we know what the implications of it will be and that you've got all this massive police presence protecting them, drawing resources away from everything else that's happening in the city, and then when I show up and I express myself, I laugh at them and I try to criticize them. I am the one who is escorted out by armed guards. I'm the one who cannot speak. What does that mean? What does that mean to say that we have free speech in this country?" And I just think that is the question. This is the question that she's left us with.

Justin Hendrix:

This quote that you have from her, “If this democracy allows a movement, the whole organization and pattern of which is made by a government openly hostile to the American democracy to organize, set up a private army and propagandize on the soil, we are plains saps. If it mobilizes the police to protect this movement against the opposition of American citizens who believe in the Declaration of Independence, it is committing a crime against itself and paving the way for disaster.” Those are words that are almost difficult to read right at this moment, just three weeks out from this election and all the various forces that are at play here in the United States.

Mary Anne Franks:

Yeah, no one could say it better. And yet we haven't really learned those lessons. And I think the more that we could focus on these moments, the better sense of history we might actually have. Maybe we'd be better prepared to meet this moment because the warning signs are all there, and they've been there for such a long time. And that part of what she's getting at, and she is in some ways echoing Justice Robert Jackson, when he said something very similar in this famous case called Terminiello, about how when you have a view of freedom of speech that says you don't care about the history or the context or who's planning on using it to destroy democracy itself, you are essentially assigning us to suicide.

This is the Constitution as a suicide pact. And Justice Jackson quotes Goebbels. He says, "Goebbels tells us about this. Nazi propagandists have told us what they're doing. They've said what they're going to do is they will take the tools of democracy to destroy democracy. As soon as they're given the power to speak themselves, they will deny it to other people." That is the entire point. It is meant to be an exclusive way to grab power and deny equal rights to everyone else. You cannot just look at that simplistically and say, "Well, freedom of speech means they have to be able to say what they want to say." That is a naive and incredibly reductionist way of looking at things and it will mean that you will not stop the juggernaut that is essentially what was created at a rally like Madison Square, what was the force of fascism in Germany. This is how it begins.

Justin Hendrix:

So I do want to just kind of put this idea of fearless speech a little more in conversation with what's going on at the moment. We've talked about the election. There's also the situation post-hurricane where so many people appear to be exposed to conspiracy theories and anti-government rhetoric. There was news last weekend of female workers having to be removed from certain parts of North Carolina out of fears that an armed militia might rise up against them, threats that were being taken seriously there, arrests that were made. How would you apply this fearless speech concept in this moment? What does it tell you about the things we're experiencing?

Mary Anne Franks:

Well, I think what it tells us, I mean, what I'm trying to do with the concept is to contrast it, not just to say that there's a better framework, because a lot of what I'm trying to say about fearless speech is aspirational and it's cultural as opposed to [inaudible 00:35:31]. But the other thing that I'm trying to say is that fearless speech should be contrasted with reckless speech. Reckless speech is the kind of speech that does not care about the kind of harm that could result from it. So in law, the concept of recklessness, back to Kahneman, back to the legal conceptions here that I find really revealing, recklessness means you know that there's a risk that the thing that you are doing is going to cause serious harm to someone else, and you just don't care. So it may not be that it's your actual purpose, but what it means is that you care more about whatever it is you want to get out of that particular action than any harm that might come from it.

And what I suggest in my critique, many of the social media platforms and many of the First Amendment cases that have come out in favor of people like Kahneman is to say, what you're really doing here is you're prioritizing recklessness. You're saying that the boldest and the most interesting or most in need of protection kind of speech we have is this kind of reckless speech. It's KKK leaders and it's neo-Nazis and Skokie, and it's Kahneman. It's reckless, right. You don't care about the harms. And that at least we need to worry about. Even if we don't get to a place where we have a more nuanced and more imaginative approach to the possibilities of speech, we certainly should be more attuned to the harms of the kinds of speech that we're protecting today. When you have really, really constrained notions of harm, really narrow concepts of things like incitement, you get exactly the reality you're describing now, which is that you are just letting conspiracy theories proliferate in a way that will get people killed.

And the idea that you have to let that ride out, that you have to see where that risk takes you is just such a strange way of thinking of democratic speech. The risks, if we want to take a protective position towards risky speech, the kind of risky speech we should care about is the risky speech where someone with less power criticizes someone with more power. We should not be putting the weight of our law and our social validation behind speech that is causing risks of harm to other people all the time. Complete selfish pursuit of whatever it is, whether it's the likes or the engagement or the profit or the political purpose you're able to achieve. We should not be valorizing that kind of speech because it in fact will cause serious injury. We know that it causes injury, and it is not something that is speculative at this point.

We know it's going to hurt people. It is not a pro-free speech physician to take to let people say whatever they want and get someone killed because that means that people can't actually do what they want to do, say what they want to do, perform the duties of their job, right, because they might be silenced forever.

Justin Hendrix:

So barring a break in the constitutional order, it could take a long time for the precedent you're concerned about to be challenged in this situation. There could be many more catastrophes in front us in that meantime both here and abroad. It seems to me that around the world, people are beginning to look at the situation we've got here and they recoil. Sometimes I think about some of the folks who come out arguing strongly against some of the rules that different countries and regions of the world are putting in place around social media. They don't seem to recognize that part of it is not just authoritarian impulses, but out of a real fear that the American conception of free speech in the way these platforms are behaving is ultimately dangerous. But barring that break in the constitutional order, is there a legal strategy to address these issues? Is there an intellectual foment that's necessary? How do we get there?

Mary Anne Franks:

I do think that there are different pieces of it that we could work on, that there are ways that you can work within a doctrine, and then there's social and political forces that I think almost always to some extent matter more, right. That, if we could change our cultural conceptions of freedom of speech, if we could be more attuned as a society to the actual cost of certain forms of speech, of reckless speech, that would already take us some way, right. If we could get past this moment where we have really taken the concept of the First Amendment and free speech and turned it into essentially a blank check for anyone who wants to impose any vision of the world they want, right.

That we could finally give up on that and say, "Can we finally say and admit to ourselves that the First Amendment is not this noble principle? It is mostly a [inaudible 00:40:13] 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." Can we understand that? Can we get that? Can we have that as a cultural moment? Can we understand this? And in that case, stop accepting it as an excuse or a justification or an invocation in situations where it shouldn't be a satisfactory response. We cannot continue to let the tech industry say, "Oh, we need Section 230, an immunity, the super immunity because we are the burglars of free speech to say no to that."

But that is not what's happening. To say no to the kinds of decisions that allow or the kinds of perceptions that allow people to be chilled in their expression, whether it's on university campuses or whether it is in the streets to say there are certain causes where the cops are going to be called on you immediately versus any number of other kinds of speech that we have allowed to take over the public square without challenge. Can we start being a lot more skeptical and critical about that? And then the legal sense, it's not even necessarily that I would say we need to have a change in precedent. So much as we need to confront the inconsistency in our precedents.

There are some First Amendment cases that are very good. There are some First Amendment principles that actually make sense. What is not healthy and what I have not seen this court or any other court really try to do is confront all the things that don't make sense. One of the reasons why Justice Kagan's majority opinion in Counterman is so troubling is that she falls back on this notion of history and tradition that she and the other liberal justices have criticized, and rightly so, because history and tradition means you are only ever going to be serving the interest primarily of those who were in power at the founding or in the 1800s. But for some reason, when it comes to the First Amendment, that is not a criticism that she has recognized.

She says, "Well, the reason why we have to have this particular decision in Counterman is because historically speaking, this is how we've defined true threats. And historically speaking, this is how narrow narrowly we wanted to draw that particular line." And it doesn't seem to occur to the civil libertarians who are not necessarily politically aligned with conservatives on anything or not all things to say, 'Wait, if history and tradition is concerning for all kinds of reasons in these other contexts, don't we think it should also be concerning in the First Amendment context? To be bound by the decisions that people have made 50 years ago, 100 years ago, 200 years ago, do we think that there might be something missing about that kind of analysis? Could we confront that inconsistency? Could we confront the insufficiency of that approach in all the ways that we've done in other contexts and try to do that here?' I don't think that's going to happen with this court, but could it happen with a future court? I would like to think so."

Justin Hendrix:

Is there a case you're watching right now that's making its way through the courts that you think might offer another opportunity to reconsider these questions?

Mary Anne Franks:

There is a case that is bubbling up that has to do with the ability of people to protest outside of abortion clinics, and I think that that's again, one of those situations where the court effectively says, "We care more about the hypothetical abstract notion of the sort the sidewalk as the public square and about whoever wants to make their anti-abortion views. No, and we care more about that than we care about people's right to safely access reproductive services." So we've already seen the court roll back some of the protectionaries for abortion clinics and the kinds of protesting activity that can go on there. But even that case, I don't think... I mean, there's almost no chance I think that the court's going to do something protective, and this is where it's very complicated, right. Protective of free speech of the people whose expressive rights are the most implicated.

I think what we're going to see is the same kind of picking and choosing that when you look at a situation like abortion clinic protesters, if all you can see is the free speech rights of those who want to protest women making their own reproductive choices, then you can see why it is that the outcomes are always going to be the same. It's not until we actually start talking about the expressive rights of everyone else, including the women or whoever it is that's trying to access the clinic until those arms or those rights or anything that has to do with those speakers is recognize we're not going to get to a better place. So I guess when I'm looking at the docket that's coming up, I wish I had a case that could even serve as a vehicle for what you're asking here, but I do actually think the court quite consciously is playing it safe this term because of the election, there are no really blockbuster cases.

There is that case that involves the bans on pornographic websites and age verification that might have some interesting aspects to it, but I don't think we're going to really see any big blockbuster cases about the Supreme Court trying to figure out First Amendment doctrine, partly because the Supreme Court can't admit that it has a problem. So I fear that we're going to be stuck with the status quo for the Supreme Court for some time. I think what we will see that will be interesting will be many of the cases that Musk is pursuing against non-profits along with the cases that are going forward against social media platforms. It'll be interesting to see how the First Amendment implications come out there. But yeah, I wish I had a better answer there, but not really.

Justin Hendrix:

If folks want to dig in more into this concept of fearless speech, they can do it with this book Fearless Speech: Breaking Free from the First Amendment by Dr. Mary Anne Franks from Bold Type Books, an imprint of Hachette, and that's out right now, October 2024, available where fine books are sold. Dr. Mary Anne Franks, thank you so much.

Mary Anne Franks:

Thank you.