Mary Anne Franks, free speech, & how power rationalizes its need for more

If you’re on the side of greater control over freedom of speech, you're not on the side of the powerless

When powerful people tell you that “freedom of speech exists only to protect the powerful,” you should probably be suspicious. 

This week, George Washington University law professor Mary Anne Franks was a panelist at the 2024 National First Amendment Summit, co-sponsored by FIRE and NYU’s First Amendment Watch. During a panel with FIRE VP of Campus Advocacy Alex Morey and Yale Law Professor (and FIRE board member) Keith Whittington, moderated by National Constitution Center President & CEO Jeffrey Rosen, Franks explained why her new book, “Fearless Speech,” calls for a re-imagining of the First Amendment. In a nutshell, Franks feels that, historically, the First Amendment “didn’t show up” for some groups, and when it did, it was usually for the powerful:

Accordingly, Franks posits that we should protect “fearless speech” (that is, speech the oppressed use to challenge their oppressors), and not “reckless speech,” which is, presumably, everything that isn’t fearless.

There’s a technical point that needs to be made here for the non-lawyers in the audience: Until 1925, the First Amendment only restrained the Federal government, and it wasn’t really given many teeth until decades later. So almost all of the examples Franks offers of the “First Amendment” not showing up for movements before that time aren’t failures of the First Amendment. Rather, they’re failures of our courts to strongly interpret the First Amendment as a check on not just federal but overall state power. 

A First Amendment that is not as strong, broad, and universal in its application as it is today would bring us back to the very times Franks is holding up as evidence of its shortcomings. 

The argument that free speech or the First Amendment expanded the power of the powerful doesn’t work on a historical or philosophical level. FIRE Senior Fellow Nadine Strossen and I have pointed this out before, but let’s go over it again.

Young people are being miseducated about the history of free speech and the First Amendment. The way I explain it now, when I speak to both high school and college students alike, is that they’re being taught that First Amendment and free speech protections primarily benefit the “three B’s”: the Bully, the Bigot, and the Robber-Baron (rich folk). While a universal interpretation of human rights does protect the three B’s, they don’t need special protection. And historically speaking, they never have.

The rich and powerful have always tended to do just fine because they are, well, rich and powerful. Indeed, the story of representative government is often monarchs going to the wealthy and powerful to ask for money, and the wealthy and powerful asking for greater say in government in return.

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.

In ancient times, powerful people were eager to have you know they were powerful. In modern times, powerful people will go to great lengths to pretend like they’re the out-group. One example was a social media movement on the left that began to coalesce during the Trump presidency. This movement represented and promoted ideas held by much of Hollywood, most news outlets, almost all higher education institutions, global businesses and the U.S. House of Representatives. What did it call itself? The Resistance. When your ideals are held by the vast majority of media, higher-ed, and banks, you’re not exactly the White Rose, are you?

Modern higher education is a trillion-dollar-plus industry. In 2021, the last year for which the government has numbers ready, higher education brought in $993 billion. For context, that’s 66 times the retail value revenue of the recording industry in 2021 ($15b). Higher education institutions in the U.S. are some of the wealthiest, most influential, and most powerful institutions that have ever existed. In fact, some schools have rainy day funds bigger than the GDP of most small countries.

Telling the people running these institutions, and the professors that dominate them, that they should have more power over speech is anything but fearless. It’s fan service. I’ve been told by the heads of prestigious law schools that they really don’t have that much power. I’ve heard the same from executives at multi-billion dollar corporations. And there doesn’t seem to be any irony or self-awareness in their tone.

I read an article recently where a quoted source accused Bari Weiss’ podcast of being “a salon for the privileged laments of the powerful… masquerading as the grievances of the oppressed.” That article was in The New York Times, an institution several thousands of orders of magnitude more connected to the privileged and powerful, and able to amplify objections to Bari’s professional existence in ways she could never reciprocate.

And this is exactly what I think when we see administrators and professors at elite institutions, with billions of dollars in the bank, seeking to reassure the unwashed masses that they can tell us which speech is “fearless” which speech is “reckless,” and that they will use this power only to fight “the powerful.” Please ignore the fact that the children of the rich and connected dominate elite higher education in particular, such that most of these schools have more students from the top 1% of the economic distribution than from the bottom 50 or even 60%, depending on the school. For more on this, check out “Poison Ivy” by Evan Mandery.

We are likely going to be writing more on Mary Anne Franks’ book, “Fearless Speech,” because it's just one part of a larger movement from the intellectual class to try to rationalize and euphemize their need for more power.

It goes something like this: “We take for granted we are not very powerful. (Even though, relatively speaking, we are extremely powerful. But we like to pretend we're not, so while we're pretending…) We think the rest of you aren't using your power correctly, so why don't you give us more power over speech — and thought itself? We promise this will work out to the benefit of the powerless.”

This is an old play. And societies that fall for it have regretted it, time and time again.

SHOT FOR THE ROAD

FIRE Legal Director Will Creeley also took on Franks’ comments, and his eloquence is the perfect way to leave the topic, for today at least. It will come up again, though. You can count on it: