Watching that clip of Dr. Franks, I was reminded of Chapter 4 of "The Shadow University." Her argument is little if anything more than a warmed over version of Marcuse's "Repressive Tolerance," with more than a dash of Catharine MacKinnon's thought thrown in.
It remains as wrong now as it was in 1965 when Marcuse offered it up.
"Fearless Speech" is just a reboot of Marcuse's "Repressive Tolerance" for our age of therapeutic sensitivity.
Instead of Marcuse's "we must smother movements from the Right because of their fascistic tendencies on our way to socialist liberation" we get the 2024 version from the much more neurotic and much less literate academy: we must smother words that hurt feelings on our way to a world where no one has a feeling hurt (esp those from minoritized backgrounds).
History repeats itself, first as Marxist tragedy, second as American farce.
hey u seem to be maybe a troll or at least VERY worked up about this, as you've filled this page w many comments, and as I don't share your passion and have already written enough and explained myself, I will try to keep it brief and end it here.
And I will even confess to commenting on a book I've never read (an intellectual sin, I know) and have no intention of reading, as it seems pretty insipid and filled w arguments/ideas I can get for free elsewhere. But that being said (and here I'm cribbing from the Amazon description):
"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."
This is a preposterous distortion and can only be supported by focusing entirely on past historical oppression (which seems to be the sum total of modern liberal thought) while ignoring all the ways that oppression was ended. Any prof or person who thinks America would be less "oppressive" or "democratic" sans the First Amendment is someone with a stunted view of history. Free speech and thought are the cornerstones of a free society.
And as for: "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." This argument rests on the idea that there's ONE form of "democratic" thought and all others are suspect and need to be monitored if not smothered—which is a pale copy of Marcuse's "Repressive Tolerance" dressed up in the language of modern sensitivity.
There can be no "more democratic version of free speech" if it privileges one set of voices, narratives, ideas over any other.
None of this is occurring in a vacuum—many members of our liberal classes, from Hilary Clinton and other Dems to the NYT/NYer set to all sorts of Ivy Leaguers have embarked on a campaign to try to marginalize dissent and hobble the First Amendment. Camouflaging it in the language of sensitivity and "harms" doesn't change that and doesn't fool everyone.
Thank you for clarifying: you have no idea what she actually said or wrote that was in any way "wrong" or contrary to anything in or under the First Amendment. What exactly was a "preposterous distortion"? How is it a "distortion" for something to "be supported by focusing entirely on past historical" events? That's typically what we call evidence. Where did you get "sans the First Amendment"? How can a "more democratic version of free speech" possibly mean "there's ONE form of 'democratic' thought"? Where did you find anything that "privileges one set of voices, narratives, ideas over any other"?
I'm still trying to understand the source of the hostility to Professor Franks. I heard what she said and thought she was inviting people to think bigger and better than the mere First Amendment. I didn't see anything "wrong" that she said about anything. I did see some things that were wrong with the characterization of Professor Franks's statements.
The first was the first sentence in Greg's piece. It clearly did not quote Professor Franks. She simply did not (in the clip say any such thing). But it is understandable that the use of quotation marks here misled people to conclude otherwise:
When powerful people tell you that “freedom of speech exists only to protect the powerful,” you should probably be suspicious.
The second was a naked presumption:
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.
I did not hear Professor Franks advocate elimination of protection (e.g., under the First Amendment) for "reckless speech." I also did not presume that contrasting "fearless speech" with "reckless speech" advocated official restriction. I thought it advocated self-restraint. I thought that, being a professor speaking to young people, Professor Franks was encouraging people to be fearless but not foolish. The line between fearless and foolish speech opposing entrenched power obviously is not an easy line to draw. But I saw no reason presume that Professor Franks would advocate giving such power to public officials. One of her primary points was that officials with power abuse it to repress viewpoints that they consider offensive.
She wants to create advantages for the speech of those whom she believes are--and who may very well be--members of historically disadvantaged groups. What is wrong with her approach is that she treats speech as a zero-sum game. In her theory, people who have enjoyed privilege historically (i.e., the "powerful") have done so at the expense of the marginalized. That may be true. Rather than help to promote the speech of marginalized people under the principle of equality before the law, however, she believes the First Amendment isn't worth the paper it's written on. She argues that the powerful should not enjoy the speech protections that the marginalized should enjoy. That is, to give speech to her favored speech--the "brave speech" of the marginalized--she would impose censorship on the powerful. But once you start discriminating among viewpoints and speakers that way, problems invariably arise. The easiest example of such problems comes from Germany. Germany has made speech promoting Nazis illegal for decades, but that hasn't eliminated right-wing hate groups there. Speech codes and censorship tamp down symptoms of hate, but they don't eliminate the underlying disease. An ostrich that buries its head in the sand may feel safe, but it hasn't eliminated the threats around it by doing so.
There's nothing wrong per se with "brave speech." But the First Amendment as we understand it today already protects our right to speak truth to power, as examples in Will's video clip show. Thus, Dr. Franks selectively parses history and engages in anachronistic criticism to support her view. She may sell books based on the popularity of her views championing the underdog--who doesn't love an underdog?--but what she's advocating is dangerous: diminishing the speech rights of one based on their personal characteristics, beliefs, or viewpoint diminishes us all.
Have you read Professor Franks's book or did you get your impressions from the clip in the Greg's post? I'm curious what she actually said (or wrote) that makes you say "she treats speech as a zero-sum game" or "she believes the First Amendment isn't worth the paper it's written on" or that "the powerful should not enjoy the speech protections that the marginalized should enjoy" or that "she would impose censorship on the powerful." What did she say (or write) "advocating" in any way "diminishing the speech rights" of anyone "based on their personal characteristics, beliefs, or viewpoint"? I saw none of that in what I heard her say or what Greg wrote.
I have heard her speak publicly about her views and her appropriation of the Greek concept of parrhesia, which she describes as “brave speech.” I am in the process of reading her book. So far, it appears to be consistent with her public presentations.
I hadn't heard Professor Franks speak about these issues or about her book before her participation in the 2024 First Amendment Summit at the NCC. But nothing I heard her say in this clip was in any way negative. I really cannot understand the negative reaction. I liked the example she provided near the end of the clip. She didn't advocate anything inconsistent with the First Amendment. She advocated thinking considerably bigger and considerably better than the First Amendment. And we really do need to do more of that in multiple respects.
Thank you for defending freedom of speech. It is absolutely necessary for every single human, regardless of class or any other distinction. Reckless, feckless or fearless - ALL speech must be free. What Mary Ann Franks is actually advocating is censorship. NO speech must be censored. None, zippo, nada. We need this as a universal principle and actually fortify the First Amendment in these modern times. For it is true - that free speech is the bedrock of society. We don't have it mind you, much speech is censored and it should be a national disgrace to censor speech especially when media does it. It should be a scar across their reputation. But even amongst us plebs, we need to uphold free speech. We must live up to our expectations of others by practicing free speech principles, even when it's uncomfortable. Let me be clear - censoring means stopping someone from expressing themselves. If what they say is not liked, then use free speech to counter them or put them in their place. NEVER censor. Period. This makes it easy doesn't it! No qualifications to get us all jammed up.
I truly do not understand what I'm seeing here. Nothing I heard Professor Franks say sounded at all like advocating regulation of speech by officials. Moreover, she clearly did not say a lot of what Greg implied.
I heard Professor Franks's critique of "reckless speech" as advocating caution and common sense. Lots of people go to jail, get fined or get fired for things they think will be protected by the First Amendment. Maybe they even are protected (on parchment and paper) by the First Amendment, but people still go to jail, get fined and get fired for them.
Reckless speech also often is not effective speech. There's nothing at all wrong with encouraging people to think about how to make their speech more effective than merely expressive. America needs a lot more of that. I heard something similar (and well worth listening to) on So To Speak podcasts, e.g., episode 188 (How to make a winning free speech argument). I heard somebody on another podcast about the freedom of speech (I think maybe at the National Constitution Center) pointing out that a significant number of winning First Amendment cases were brought by Jehovah's Witnesses precisely because their speech and conduct were not reckless or threatening.
So To Speak episode No. 222 (about John Stuart Mill and "On Liberty") made a similar point by contrasting (lawful) criticism with (criminal) incitement to violence. That podcast (and Mill) emphasized more generally a good general rule: think about whether speech will cause harm (or help). People call that Mill's Harm Principle. Mill also highlighted "the tyranny of the majority" to emphasize that even if a person's speech is perfectly legal, it certainly can be punished by our friends and neighbors.
I think that people rushing to condemn Professor Franks missed her whole point. She was speaking about people who used their speech (thoughtfully, not recklessly) to make a difference in a way that was positive and material and without relying on the First Amendment like a crutch or shield. I think her point was that we should not let what we say or do for and with our freedom of expression be too heavily influenced by what we think the First Amendment says or does for our freedom of expression. Is that really such a radical idea?
I appreciate you asking. I confess I only read the article but didn't watch Ann Frank' speaking. The article was a little confusing in my view. however now that I have listened to it (my bad, sorry) I totally agree with Ann Frank's position. But it goes further to something we as a society don't notice - to our detriment. Anything written can only be 2-dimensional and cannot for the life of it cover anywhere near the scope of human complexity. Humans are multi-dimensional and so we reduce ourselves to contain ourselves within a 2-dimensional manacle by trying to adhere to what we call lawm which is all written material, written directives and restrictions. The First Amendment at least was something that was clear and not cryptic like so many other "laws". Perhaps we should expand the First Amendment since we are now in a very different world (with digital tech. It's a whole new world where we can freely exchange ideas and nobody can get hurt (online). It's very different to being in the presence of someone where there often is not the benefit of freedom of speech (because you can get a black eye for it, for example) Threatening speech is something we should discuss, because it still depends on someone's interpretation. But on the other hand, we really don't want to be subjected to it. Therefore the term "threatening" needs to be very clearly defined and also censoring someone for unacceptable speech should be done by consensus and not unilaterally. Thank you for your thoughtful comment, it got me to watch the video!
I guess maybe your point is that someone shouldn't say something unnecessarily crass and/or incendiary just bc the First Amendment allows it?
But then we just run right back to the same circle with who gets to be judge and what is what in the eye of the beholder. One person's "crass" is another person's hilarious and one person's "incendiary" etc is another person's brave truth-telling. This leads to another tautology: There is simply no way of policing speech without policing speech.
Also, let's be honest about American academia in 2024: their favored groups can say things that other people find hateful (the most common examples being anti-white and anti-Jewish expressions) and these are denied or contextualized; but then when someone critiques or disagrees w one of their favored groups (the most common examples being people who oppose the BLM or Trans narratives) they're censored, cancelled, vilified.
To take the standard you proffered: "think about whether speech will cause harm or help." Now I personally thought the reaction to George Floyd would cause more harm than help—I disagreed with Defund the Police, that black men were being hunted, that lowering standards in school etc was helpful, and to the theological aspects like foot washing and kneeling congressmen—but we both know that if I expressed that then (and maybe even now, depending upon the forum) I would have been fired and chased out of polite society.
America's upscale liberal classes, most esp in the media and academia, have been overcome by a desire to crush dissent in the Trump era and be crowned Official Spokespeople of the Truth. They may try to deny it, but there's a pattern here that's hard to ignore.
I agree with pretty much all that you wrote. But to your first question, I'm definitely not saying that. I'm not presuming to know what is unnecessary or excessive in any (much less every) instance. I've heard other people give their opinions about that in certain instances and I "know" they're wrong. Some people love to abuse such standards. Some people just subscribe to standards that are vastly more restrained than our Constitution (and the circumstances) support. As you said, that's difficult to judge. I'm saying that it's not bad to encourage people to think about whether something they want to say adds value or not (helps or harms).
"I'm saying that it's not bad to encourage people to think about whether something they want to say adds value or not (helps or harms)."
Oh I couldn't agree more, yet we do live in a free country of 325-plus millions, all of whom now only need opposable thumbs to broadcast their inane and often ugly "opinions" to the globe. (And who even abuse the simple standard you just proffered, by promiscuously equating dissent with "hate" and "harm".)
And I definitely don't discount how insanely hateful the discourse has become—I met a Jewish friend this week who told me he has to unplug because of all the people online telling him how much they hope his whole family is killed.
I really don't know what a good answer is here, I think the digital age and social media might be even more radical than the Gutenberg press, and that basically helped tear Europe apart for a century.
But I do not trust professors or journalists as they have made it clear they are partisan activists and only see hate and harm in their opponents. Some institution in this country is going to have to rebuild trust from the bottom up, but our academy is compromised and the Trump era has been the opposite of sane and measured.
There will either be a conciliatory leader or group in our future or there will be some ugly event that makes reconciliation preferable to death and disaster, let's hope it's not the latter.
When it comes to threatening the lives of someone, then I unequivocally think that is threatening speech and should be held accountable. This simplifies the situation. Accountable how though? I'd say have a poll to see if they should be banned for a period of time. Not forever as that doesn't allow someone to improve. Hurtful speech should be in the sense of physical harm, not harm to people's feelings because if it came to that, nobody would be able to say anything! And we can only be responsible for our own feelings. Free speech allows the freedom of the "victim" of speech to respond. We're all here to express ourselves.
I've been harassed etc online and it's always been solved by the BLOCK option. If someone can be blocked/muted, I think that's adequate protection. I don't see any other option but setting up some Ministry of Truth.
I agree about threatening, but it's worth keeping in mind that people abuse that label too. SCOTUS just overturned Colorado's conviction (and imprisonment) of a guy (Counterman) for speech that a prosecutor convinced a jury to say was "threatening." It was absurd! There isn't a label that can't be abused.
I've been harassed etc online and it's always been solved by the BLOCK option. If someone can be blocked/muted, I think that's adequate protection. I don't see any other option but setting up some Ministry of Truth.
People do love their self-serving (or even self-defeating) labels (like hate and harm). But keep in mind that the context for this conversation is whether Professor Franks said (or wrote) something that warranted what I saw as the outrage on this page. If someone else sees the harm in what she wrote, I wish they'd help me because I just don't see it.
What bothers me about Franks' words is her assetion that because the FA hasn't always protected perfectly against government abuse, that it "doesn't show up" for Americans. That's like saying that because some people abuse 911, that the 911 really doesn't do very much good.
Of course our society sometimes fails to live up to its ideals...that's just the way of humans. That doesn't mean the ideals failed but that humans did. I wonder what Franks thinks a better model would be.
But Greg said exactly the same thing: "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" pertain to "that time."
The First Amendment was ratified in 1791. A lot happened between 1791 and 1925 and "decades later" (as Greg put it) that was not protected by the First Amendment. A big reason for that long lapse is the way the First Amendment was written (to focus exclusively on "Congress"). That crucial qualification and other text of the First Amendment (read by judges to limit its scope) rendered the First Amendment virtually irrelevant in hugely important controversies for a very long time (even "decades later" than 1925).
Regarding SCOTUS, it's worth noting that SCOTUS justices cherry-pick the First Amendment cases they want to address. At least four justices have to agree to even take up a petition. And you can rest assured that they only do that when they have at least five justices willing to rule a certain way. So Professor Franks is irrefutably correct that the First Amendment simply did not protect many people in many important controversies. Nobody has said how anything she said was wrong.
If you sincerely want to know what a better 'model" would be, please read my comments below. If it weren't for the extremely strong desire of some people to oppress other people (e.g., based on skin color or sex), SCOTUS jurisprudence would have simply done as sometimes it has done and focused more on our power as sovereigns than our mere rights as individuals.
Having read what I wrote, would you mind sharing with me what you think the words "the sovereignty of the people" mean with respect to our freedom to think as we will and speak as we think?
I answered you above. I had not listened to her, I only commented after reading the article and thought that Ann Franks was trying to qualify free speech, (between fearless and reckless) which is a worry because free speech means all speech and qualifying it equates to giving power to the powerful, as it's always them who make the qualifications and definitions. Thanks for catching that.
So, those opposed to free speech have discovered FIRE. Once again, we are hearing the tired and weak argument that since the Constitution did not immediately resolve millennia of social ills, it and the First Amendment are “neither sufficient nor necessary.” Instead, we are to rely on the qualitative judgment of whom exactly?
If we want to know who actually wields power, and who wants to hold onto it, we need look no further than those who argue against speech protections.
This is the same dynamic employed by trans activist bullies who portray themselves as victims.
Increasingly we are living in Mr Dumpty's world as he says to Alice, "When I use a word it means just what I choose it to mean.... nothing more nor less".
I have tremendous respect for much of Chief Justice Marshall's writing and conduct. For example, in 1819, he emphasized that our Constitution protected us and our liberties as “the sovereign people.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-405 (1819) (Marshall, C.J.)). So we would be blind to history to think that the reason Marshall in Barron v. Baltimore in 1833 (and many other justices in other decisions) ignored our sovereignty and focused our attention on the limitations of the Bill of Rights (i.e., focusing our attention only on restraining the federal government (and not the states) regarding violations of our liberties) was not intended to help protect and secure slavery. John Marshall's history was much more complicated that we can glean from the opinions with which we are familiar or the reasons stated therein. See, e.g., https://lawreview.uchicago.edu/online-archive/master-john-marshall-and-problem-slavery and https://lawreview.uchicago.edu/online-archive/john-marshalls-proslavery-jurisprudence-racism-property-and-great-chief-justice
I think you really misunderstood Professor Franks's point (and badly mischaracterized it). She simply did not say a lot of what you implied. The first part of her position was very similar to parts of the first chapter of Jacob Mchangama's outstanding book "Free Speech: A Global History from Socrates to Social Media" and the first episode of his outstanding podcast "Clear and Present Danger." Other parts of Professor Franks' position were similar to points illustrated in Stephen Solomon's impressively insightful book "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech," which also was illustrated in multiple episodes of "Clear and Present Danger" (e.g., Nos. 21-24).
We really are blinding ourselves by focusing (and allowing judges to focus) exclusively on the First Amendment. It's like staring at a campfire at night. Even SCOTUS has not limited our protections to the words of the First Amendment. Why should we? It is well worth bearing in mind that SCOTUS justices (repeatedly throughout the past 100 years) have changed their minds about (what we think of as) our First Amendment rights and freedoms ONLY because other people convinced them they should. It is (and has been for hundreds of years) extremely detrimental to believe that SCOTUS is telling us the truth about the true meaning of our sovereignty.
Freedom of speech in the golden age of Athens was really important to many of the people who wrote our Declaration of Independence and our Constitution. That model of the freedom of speech--in a democracy by sovereign citizens engaged in self-government--is crucial to understanding what our true freedom to think and speak was meant to be. It was not meant to be restrained by ANY of the words that judges so often abuse to (wrongly) limit the scope of the First Amendment. To a great extent, our freedom of speech was meant to be and do what it was and did during the American Revolution (before we had a First Amendment or even a Constitution). Professor Franks, I believe, was saying something similar.
I think Professor Franks's point, in significant part, was that SCOTUS says a lot of the right words a lot of the time, but it does not protect the kind of speech you might expect. SCOTUS also did not and does not protect speech nearly as fully as you might expect from hearing about what SCOTUS did or does protect. SCOTUS has a remarkable history of protecting right-wing extremism (against disfavored people) and helping punish speech of people who speak against people in power. And what SCOTUS does protect is far less than half the story because SCOTUS denies a massive number of petitions requesting protection.
Beyond that, I understood Professor Franks's point to be that we should not look--as examples of how we should speak and conduct ourselves in our society--at the particular speech that SCOTUS has selected to protect (by granting cert petitions). At least in part, her point was that the mere fact that SCOTUS chose to protect certain speech is not a sign that it is worthy of emulation. FIRE's podcast (So To Speak) has made the same point from time to time.
With great respect for Will Creeley, his statements also seem to have been recorded earlier to respond to something other than Professor Franks's statement. She said we comfort ourselves with "myths about how [the First Amendment has] ALWAYS protected radical speech or how it's protected people who are fighting for democracy or equality." He refuted a vastly different argument: "some argue that the First Amendment ONLY protects powerful people."
Your own article emphasized Professor Franks's very point: until at least1925 (i.e., after the Civil War, Reconstruction, a lot of repression thereafter and even through the struggle for women's suffrage), the First Amendment was virtually worthless to people fighting for their liberties. The very text of the First Amendment was used to argue that it was irrelevant to all the abuses inflicted on people by people in power in states.
Do you want to know why SCOTUS can rob and defraud people of their rights like they did in Dobbs? People who believe that "without a strong First Amendment," civil rights "movements were easy to shut down" fail to understand what Madison, Hamilton, Daniel Webster and many other Federalists repeatedly emphasized from the outset. We didn't (and don't) need a bill of rights, we just needed (and need) to understand what "the sovereignty of the people" actually means with respect to our rights and powers.
Justice Ginsburg (in a dissenting opinion in Gamble v. United States, 587 U.S. 678, 728 (2019)) quoted Hamilton in The Federalist No. 22 to emphasize that the people are “sovereign” and the “original fountain of all legitimate authority.” To a great extent, the Bill of Rights states rights that flow from the fountain of our own sovereignty. Hamilton also emphasized this particular principle in The Federalist No. 84. Hamilton showed how the Preamble clearly declared the sovereignty of the people. He explained that the declaration of our sovereignty established that our Constitution need not enumerate rights. Citizens’ liberty and rights reflect and flow from of our personal and political sovereignty, which was secured in the original Constitution, not merely amendments thereto. Hamilton said and showed how the Preamble meant much of the same as the Ninth Amendment:
[Regarding rights] the people surrender nothing; and as they retain every thing they have no need of particular reservations [of rights]. “WE, THE PEOPLE [ ] to secure the blessings of liberty to ourselves [ ], do ORDAIN and ESTABLISH this Constitution [ ].” Here is a better recognition of popular rights, than volumes of [any] aphorisms [in any] bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
The original Constitution emphasized our political sovereignty (over each other and over our public servants) and amendments emphasized our personal sovereignty (each person over herself). Amendments I, XIV, XIX, XXIV and XXVI emphasized that political sovereignty and personal sovereignty belong to all citizens, regardless of creed, color, race, sex, wealth or age (after 17).
The First Amendment, for example, emphasized each person’s sovereignty over her own thoughts, beliefs and conscience (“religion”), communications (“speech,” “press” and “petition”) and associations (“religion,” “assembly”). The Second Amendment emphasized that each person’s sovereignty included even the right and power to take another person’s life in self-defense or for self-preservation. See, e.g., District of Columbia v. Heller, 554 U.S. 570 (2008). The Fourth Amendment emphasized the sovereignty of “the people” over “their persons, houses, papers, and effects.” The Third Amendment emphasized the sovereignty of “the Owner” over her “house.” The Thirteenth Amendment emphasized the sovereignty of each person over her person, time and energies by outlawing any form of “involuntary servitude.”
Open your eyes and see your own sovereignty. Don't be blinded by the words that people in power used to limit the scope of the First Amendment.
In fact, some of the best proof that the First Amendment was abused as an instrument of oppression comes straight out of SCOTUS. That was exactly the point of Barron v. Baltimore in 1833. It was written by another southerner chief justice who enslaved a lot of people. It is not even conceivable that Chief Justice Marshall did not know that, with that opinion, he was protecting people who enslaved other people and he was doing it by defrauding all Americans of our rights and liberties.
Don't take my word for that, take the words of SCOTUS, itself (now that SCOTUS doesn't need to deceive to support slavery). In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 346-347 (2010). And SCOTUS explained exactly what our sovereignty means with respect to what we have been misled to believe are mere "rights" against the mere federal government (Congress) under the mere "First Amendment." Our sovereignty necessarily encompasses all our powers necessary and proper to our self-government, which includes speech (which includes suffrage) regarding (and often against) all government.
“The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Citizens United at 339. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Id. “Discussion of public issues” is “integral to the operation of the system of government established by our Constitution.” Id. at 340. “For these reasons, political speech must prevail against” any purported legal authority “that would suppress it, whether by design or inadvertence.” Id. “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” Id.
The First Amendment is not and never should have been portrayed as the primary security of what we have been taught to think of as our First Amendment rights and freedoms. Our sovereignty is the pure source of our liberty. The First Amendment and its focus on "Congress" was designed to deceive (not by everyone, but by some). You could and should take the word of Chief Justice Marshall's contemporaries on SCOTUS.
Our “Constitution begins with the principle that sovereignty rests with the people.” Alden v. Maine, 527 U.S. 706, 759 (1999). It began by expressly emphasizing that “the people” did “ordain and establish the Constitution.” Id. (quoting U.S. Const., Preamble). The dissent in Alden, was far more powerful and explicit about the power of the sovereign people. They emphasized the opinions of three Framers, including Edmund Randolph (former Attorney General) and two justices (Chief Justice John Jay and Justice James Wilson) “in Chisholm v. Georgia” in 1793 “a bare two years” after “the Tenth Amendment,” was “added to the original Constitution.” Id. at 781 (Souter, Stevens, Ginsburg, Breyer, JJ., dissenting).
The dissenters in Alden emphasized that Wilson (at the Pennsylvania ratifying convention) emphasized that "the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare." That was "the major premise of what would later become Justice Wilson's position in Chisholm," i.e., that "the people, and not the States, are sovereign." Sovereigns obviously are free to speak and think for themselves.
Instead of just assuming that the 90 or 100 years of silence (after Barron) about the First Amendment was the way things were meant to be under our Constitution, we must recognize that SCOTUS deceived American sovereigns about and defrauded us of the "rights" we "retained" as sovereigns regardless of whether such rights were "enumerated" in our Constitution (as the Ninth Amendment emphasized, but as SCOTUS (to this day too often ignores)).
I have not had the pleasure of reading Professor Franks's book, but (I'm sorry to say) I think Professor Franks is more right than you. The evidence is in one of the most controversial and confusing words in the First Amendment--and the evidence is in the reason that it is the first word in the First Amendment: Congress.
James Madison fought bravely and determinedly to have our Bill of Rights restrain states, specifically regarding our freedom of speech and press and conscience. Coincidentally, Jefferson tried to have our Declaration of Independence eschew slavery. Both their efforts were thwarted by people in power in states that viciously oppressed people, denied them all liberty and insisted they were mere property.
The fact that Senators (each of whom back then was a direct representative of a state) made sure our Bill of Rights did not restrain states is a story well worth telling. It is a story inextricably intertwined with outrageous oppression--by people in power in particular states who were determined to (and did) abuse other people as mere property. They even specifically blocked speech and debate in Congress (and blocked our right to petition Congress) to oppose people in power oppressing other people by enslaving them.
So maybe we're being a little too hasty when we accept the history we've been handed by a SCOTUS that was a huge part of the machine for the oppression of people in America. If you're in doubt, read Dred Scott. A southern Chief Justice of SCOTUS specifically invoked the First Amendment to JUSTIFY "ruling" that black people (even free people) could not possibly be part of "the people." And a tyranny of the majority (on SCOTUS) joined him.
This is how Chief Justice Taney in Dred Scott used the First Amendment to JUSTIFY saying FREE "persons of the negro race" could not be "recognized as citizens." Such recognition had to be prevented (actually ruled unconstitutional by SCOTUS) because "it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this" liberty would have the effect of "inevitably producing discontent and insubordination among [enslaved people], and endangering the peace and safety of the State."
Watching that clip of Dr. Franks, I was reminded of Chapter 4 of "The Shadow University." Her argument is little if anything more than a warmed over version of Marcuse's "Repressive Tolerance," with more than a dash of Catharine MacKinnon's thought thrown in.
It remains as wrong now as it was in 1965 when Marcuse offered it up.
Thanks, you beat me to it.
"Fearless Speech" is just a reboot of Marcuse's "Repressive Tolerance" for our age of therapeutic sensitivity.
Instead of Marcuse's "we must smother movements from the Right because of their fascistic tendencies on our way to socialist liberation" we get the 2024 version from the much more neurotic and much less literate academy: we must smother words that hurt feelings on our way to a world where no one has a feeling hurt (esp those from minoritized backgrounds).
History repeats itself, first as Marxist tragedy, second as American farce.
If you agree with Matt, I have to ask again, what did Professor Franks say that "remains as wrong now as it was in 1965"? Where's the wrong?
hey u seem to be maybe a troll or at least VERY worked up about this, as you've filled this page w many comments, and as I don't share your passion and have already written enough and explained myself, I will try to keep it brief and end it here.
And I will even confess to commenting on a book I've never read (an intellectual sin, I know) and have no intention of reading, as it seems pretty insipid and filled w arguments/ideas I can get for free elsewhere. But that being said (and here I'm cribbing from the Amazon description):
"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."
This is a preposterous distortion and can only be supported by focusing entirely on past historical oppression (which seems to be the sum total of modern liberal thought) while ignoring all the ways that oppression was ended. Any prof or person who thinks America would be less "oppressive" or "democratic" sans the First Amendment is someone with a stunted view of history. Free speech and thought are the cornerstones of a free society.
And as for: "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." This argument rests on the idea that there's ONE form of "democratic" thought and all others are suspect and need to be monitored if not smothered—which is a pale copy of Marcuse's "Repressive Tolerance" dressed up in the language of modern sensitivity.
There can be no "more democratic version of free speech" if it privileges one set of voices, narratives, ideas over any other.
None of this is occurring in a vacuum—many members of our liberal classes, from Hilary Clinton and other Dems to the NYT/NYer set to all sorts of Ivy Leaguers have embarked on a campaign to try to marginalize dissent and hobble the First Amendment. Camouflaging it in the language of sensitivity and "harms" doesn't change that and doesn't fool everyone.
Cheers
Thank you for clarifying: you have no idea what she actually said or wrote that was in any way "wrong" or contrary to anything in or under the First Amendment. What exactly was a "preposterous distortion"? How is it a "distortion" for something to "be supported by focusing entirely on past historical" events? That's typically what we call evidence. Where did you get "sans the First Amendment"? How can a "more democratic version of free speech" possibly mean "there's ONE form of 'democratic' thought"? Where did you find anything that "privileges one set of voices, narratives, ideas over any other"?
You make an insightful observation that I passed over but now see as obviously true. Very good. Thank you.
I'm still trying to understand the source of the hostility to Professor Franks. I heard what she said and thought she was inviting people to think bigger and better than the mere First Amendment. I didn't see anything "wrong" that she said about anything. I did see some things that were wrong with the characterization of Professor Franks's statements.
The first was the first sentence in Greg's piece. It clearly did not quote Professor Franks. She simply did not (in the clip say any such thing). But it is understandable that the use of quotation marks here misled people to conclude otherwise:
When powerful people tell you that “freedom of speech exists only to protect the powerful,” you should probably be suspicious.
The second was a naked presumption:
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.
I did not hear Professor Franks advocate elimination of protection (e.g., under the First Amendment) for "reckless speech." I also did not presume that contrasting "fearless speech" with "reckless speech" advocated official restriction. I thought it advocated self-restraint. I thought that, being a professor speaking to young people, Professor Franks was encouraging people to be fearless but not foolish. The line between fearless and foolish speech opposing entrenched power obviously is not an easy line to draw. But I saw no reason presume that Professor Franks would advocate giving such power to public officials. One of her primary points was that officials with power abuse it to repress viewpoints that they consider offensive.
I'm sincerely trying to understand what all the fuss is about. What exactly did Professor Franks say that you thought was so wrong?
She wants to create advantages for the speech of those whom she believes are--and who may very well be--members of historically disadvantaged groups. What is wrong with her approach is that she treats speech as a zero-sum game. In her theory, people who have enjoyed privilege historically (i.e., the "powerful") have done so at the expense of the marginalized. That may be true. Rather than help to promote the speech of marginalized people under the principle of equality before the law, however, she believes the First Amendment isn't worth the paper it's written on. She argues that the powerful should not enjoy the speech protections that the marginalized should enjoy. That is, to give speech to her favored speech--the "brave speech" of the marginalized--she would impose censorship on the powerful. But once you start discriminating among viewpoints and speakers that way, problems invariably arise. The easiest example of such problems comes from Germany. Germany has made speech promoting Nazis illegal for decades, but that hasn't eliminated right-wing hate groups there. Speech codes and censorship tamp down symptoms of hate, but they don't eliminate the underlying disease. An ostrich that buries its head in the sand may feel safe, but it hasn't eliminated the threats around it by doing so.
There's nothing wrong per se with "brave speech." But the First Amendment as we understand it today already protects our right to speak truth to power, as examples in Will's video clip show. Thus, Dr. Franks selectively parses history and engages in anachronistic criticism to support her view. She may sell books based on the popularity of her views championing the underdog--who doesn't love an underdog?--but what she's advocating is dangerous: diminishing the speech rights of one based on their personal characteristics, beliefs, or viewpoint diminishes us all.
Have you read Professor Franks's book or did you get your impressions from the clip in the Greg's post? I'm curious what she actually said (or wrote) that makes you say "she treats speech as a zero-sum game" or "she believes the First Amendment isn't worth the paper it's written on" or that "the powerful should not enjoy the speech protections that the marginalized should enjoy" or that "she would impose censorship on the powerful." What did she say (or write) "advocating" in any way "diminishing the speech rights" of anyone "based on their personal characteristics, beliefs, or viewpoint"? I saw none of that in what I heard her say or what Greg wrote.
I have heard her speak publicly about her views and her appropriation of the Greek concept of parrhesia, which she describes as “brave speech.” I am in the process of reading her book. So far, it appears to be consistent with her public presentations.
I hadn't heard Professor Franks speak about these issues or about her book before her participation in the 2024 First Amendment Summit at the NCC. But nothing I heard her say in this clip was in any way negative. I really cannot understand the negative reaction. I liked the example she provided near the end of the clip. She didn't advocate anything inconsistent with the First Amendment. She advocated thinking considerably bigger and considerably better than the First Amendment. And we really do need to do more of that in multiple respects.
Thank you for defending freedom of speech. It is absolutely necessary for every single human, regardless of class or any other distinction. Reckless, feckless or fearless - ALL speech must be free. What Mary Ann Franks is actually advocating is censorship. NO speech must be censored. None, zippo, nada. We need this as a universal principle and actually fortify the First Amendment in these modern times. For it is true - that free speech is the bedrock of society. We don't have it mind you, much speech is censored and it should be a national disgrace to censor speech especially when media does it. It should be a scar across their reputation. But even amongst us plebs, we need to uphold free speech. We must live up to our expectations of others by practicing free speech principles, even when it's uncomfortable. Let me be clear - censoring means stopping someone from expressing themselves. If what they say is not liked, then use free speech to counter them or put them in their place. NEVER censor. Period. This makes it easy doesn't it! No qualifications to get us all jammed up.
I truly do not understand what I'm seeing here. Nothing I heard Professor Franks say sounded at all like advocating regulation of speech by officials. Moreover, she clearly did not say a lot of what Greg implied.
I heard Professor Franks's critique of "reckless speech" as advocating caution and common sense. Lots of people go to jail, get fined or get fired for things they think will be protected by the First Amendment. Maybe they even are protected (on parchment and paper) by the First Amendment, but people still go to jail, get fined and get fired for them.
Reckless speech also often is not effective speech. There's nothing at all wrong with encouraging people to think about how to make their speech more effective than merely expressive. America needs a lot more of that. I heard something similar (and well worth listening to) on So To Speak podcasts, e.g., episode 188 (How to make a winning free speech argument). I heard somebody on another podcast about the freedom of speech (I think maybe at the National Constitution Center) pointing out that a significant number of winning First Amendment cases were brought by Jehovah's Witnesses precisely because their speech and conduct were not reckless or threatening.
So To Speak episode No. 222 (about John Stuart Mill and "On Liberty") made a similar point by contrasting (lawful) criticism with (criminal) incitement to violence. That podcast (and Mill) emphasized more generally a good general rule: think about whether speech will cause harm (or help). People call that Mill's Harm Principle. Mill also highlighted "the tyranny of the majority" to emphasize that even if a person's speech is perfectly legal, it certainly can be punished by our friends and neighbors.
I think that people rushing to condemn Professor Franks missed her whole point. She was speaking about people who used their speech (thoughtfully, not recklessly) to make a difference in a way that was positive and material and without relying on the First Amendment like a crutch or shield. I think her point was that we should not let what we say or do for and with our freedom of expression be too heavily influenced by what we think the First Amendment says or does for our freedom of expression. Is that really such a radical idea?
I appreciate you asking. I confess I only read the article but didn't watch Ann Frank' speaking. The article was a little confusing in my view. however now that I have listened to it (my bad, sorry) I totally agree with Ann Frank's position. But it goes further to something we as a society don't notice - to our detriment. Anything written can only be 2-dimensional and cannot for the life of it cover anywhere near the scope of human complexity. Humans are multi-dimensional and so we reduce ourselves to contain ourselves within a 2-dimensional manacle by trying to adhere to what we call lawm which is all written material, written directives and restrictions. The First Amendment at least was something that was clear and not cryptic like so many other "laws". Perhaps we should expand the First Amendment since we are now in a very different world (with digital tech. It's a whole new world where we can freely exchange ideas and nobody can get hurt (online). It's very different to being in the presence of someone where there often is not the benefit of freedom of speech (because you can get a black eye for it, for example) Threatening speech is something we should discuss, because it still depends on someone's interpretation. But on the other hand, we really don't want to be subjected to it. Therefore the term "threatening" needs to be very clearly defined and also censoring someone for unacceptable speech should be done by consensus and not unilaterally. Thank you for your thoughtful comment, it got me to watch the video!
I guess maybe your point is that someone shouldn't say something unnecessarily crass and/or incendiary just bc the First Amendment allows it?
But then we just run right back to the same circle with who gets to be judge and what is what in the eye of the beholder. One person's "crass" is another person's hilarious and one person's "incendiary" etc is another person's brave truth-telling. This leads to another tautology: There is simply no way of policing speech without policing speech.
Also, let's be honest about American academia in 2024: their favored groups can say things that other people find hateful (the most common examples being anti-white and anti-Jewish expressions) and these are denied or contextualized; but then when someone critiques or disagrees w one of their favored groups (the most common examples being people who oppose the BLM or Trans narratives) they're censored, cancelled, vilified.
To take the standard you proffered: "think about whether speech will cause harm or help." Now I personally thought the reaction to George Floyd would cause more harm than help—I disagreed with Defund the Police, that black men were being hunted, that lowering standards in school etc was helpful, and to the theological aspects like foot washing and kneeling congressmen—but we both know that if I expressed that then (and maybe even now, depending upon the forum) I would have been fired and chased out of polite society.
America's upscale liberal classes, most esp in the media and academia, have been overcome by a desire to crush dissent in the Trump era and be crowned Official Spokespeople of the Truth. They may try to deny it, but there's a pattern here that's hard to ignore.
I agree with pretty much all that you wrote. But to your first question, I'm definitely not saying that. I'm not presuming to know what is unnecessary or excessive in any (much less every) instance. I've heard other people give their opinions about that in certain instances and I "know" they're wrong. Some people love to abuse such standards. Some people just subscribe to standards that are vastly more restrained than our Constitution (and the circumstances) support. As you said, that's difficult to judge. I'm saying that it's not bad to encourage people to think about whether something they want to say adds value or not (helps or harms).
"I'm saying that it's not bad to encourage people to think about whether something they want to say adds value or not (helps or harms)."
Oh I couldn't agree more, yet we do live in a free country of 325-plus millions, all of whom now only need opposable thumbs to broadcast their inane and often ugly "opinions" to the globe. (And who even abuse the simple standard you just proffered, by promiscuously equating dissent with "hate" and "harm".)
And I definitely don't discount how insanely hateful the discourse has become—I met a Jewish friend this week who told me he has to unplug because of all the people online telling him how much they hope his whole family is killed.
I really don't know what a good answer is here, I think the digital age and social media might be even more radical than the Gutenberg press, and that basically helped tear Europe apart for a century.
But I do not trust professors or journalists as they have made it clear they are partisan activists and only see hate and harm in their opponents. Some institution in this country is going to have to rebuild trust from the bottom up, but our academy is compromised and the Trump era has been the opposite of sane and measured.
There will either be a conciliatory leader or group in our future or there will be some ugly event that makes reconciliation preferable to death and disaster, let's hope it's not the latter.
When it comes to threatening the lives of someone, then I unequivocally think that is threatening speech and should be held accountable. This simplifies the situation. Accountable how though? I'd say have a poll to see if they should be banned for a period of time. Not forever as that doesn't allow someone to improve. Hurtful speech should be in the sense of physical harm, not harm to people's feelings because if it came to that, nobody would be able to say anything! And we can only be responsible for our own feelings. Free speech allows the freedom of the "victim" of speech to respond. We're all here to express ourselves.
I've been harassed etc online and it's always been solved by the BLOCK option. If someone can be blocked/muted, I think that's adequate protection. I don't see any other option but setting up some Ministry of Truth.
I agree about threatening, but it's worth keeping in mind that people abuse that label too. SCOTUS just overturned Colorado's conviction (and imprisonment) of a guy (Counterman) for speech that a prosecutor convinced a jury to say was "threatening." It was absurd! There isn't a label that can't be abused.
I've been harassed etc online and it's always been solved by the BLOCK option. If someone can be blocked/muted, I think that's adequate protection. I don't see any other option but setting up some Ministry of Truth.
People do love their self-serving (or even self-defeating) labels (like hate and harm). But keep in mind that the context for this conversation is whether Professor Franks said (or wrote) something that warranted what I saw as the outrage on this page. If someone else sees the harm in what she wrote, I wish they'd help me because I just don't see it.
I agree with you and I spoke prematurely.
Could you help me understand what Professor Franks said that made you think she was advocating censorship? I really don't see it.
What bothers me about Franks' words is her assetion that because the FA hasn't always protected perfectly against government abuse, that it "doesn't show up" for Americans. That's like saying that because some people abuse 911, that the 911 really doesn't do very much good.
Of course our society sometimes fails to live up to its ideals...that's just the way of humans. That doesn't mean the ideals failed but that humans did. I wonder what Franks thinks a better model would be.
But Greg said exactly the same thing: "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" pertain to "that time."
The First Amendment was ratified in 1791. A lot happened between 1791 and 1925 and "decades later" (as Greg put it) that was not protected by the First Amendment. A big reason for that long lapse is the way the First Amendment was written (to focus exclusively on "Congress"). That crucial qualification and other text of the First Amendment (read by judges to limit its scope) rendered the First Amendment virtually irrelevant in hugely important controversies for a very long time (even "decades later" than 1925).
Regarding SCOTUS, it's worth noting that SCOTUS justices cherry-pick the First Amendment cases they want to address. At least four justices have to agree to even take up a petition. And you can rest assured that they only do that when they have at least five justices willing to rule a certain way. So Professor Franks is irrefutably correct that the First Amendment simply did not protect many people in many important controversies. Nobody has said how anything she said was wrong.
If you sincerely want to know what a better 'model" would be, please read my comments below. If it weren't for the extremely strong desire of some people to oppress other people (e.g., based on skin color or sex), SCOTUS jurisprudence would have simply done as sometimes it has done and focused more on our power as sovereigns than our mere rights as individuals.
I read your comments below, and I am still not clear what would replace the First Amendment.
Having read what I wrote, would you mind sharing with me what you think the words "the sovereignty of the people" mean with respect to our freedom to think as we will and speak as we think?
Those are your words, and you are best positioned to say what they mean. I'm not going to mind-read you.
I answered you above. I had not listened to her, I only commented after reading the article and thought that Ann Franks was trying to qualify free speech, (between fearless and reckless) which is a worry because free speech means all speech and qualifying it equates to giving power to the powerful, as it's always them who make the qualifications and definitions. Thanks for catching that.
So, those opposed to free speech have discovered FIRE. Once again, we are hearing the tired and weak argument that since the Constitution did not immediately resolve millennia of social ills, it and the First Amendment are “neither sufficient nor necessary.” Instead, we are to rely on the qualitative judgment of whom exactly?
If we want to know who actually wields power, and who wants to hold onto it, we need look no further than those who argue against speech protections.
What did Professor Franks say to make you think that she was arguing against speech protections?
This is the same dynamic employed by trans activist bullies who portray themselves as victims.
Increasingly we are living in Mr Dumpty's world as he says to Alice, "When I use a word it means just what I choose it to mean.... nothing more nor less".
Mary Anne Franks and the power of motivated reasoning.
I have tremendous respect for much of Chief Justice Marshall's writing and conduct. For example, in 1819, he emphasized that our Constitution protected us and our liberties as “the sovereign people.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 404-405 (1819) (Marshall, C.J.)). So we would be blind to history to think that the reason Marshall in Barron v. Baltimore in 1833 (and many other justices in other decisions) ignored our sovereignty and focused our attention on the limitations of the Bill of Rights (i.e., focusing our attention only on restraining the federal government (and not the states) regarding violations of our liberties) was not intended to help protect and secure slavery. John Marshall's history was much more complicated that we can glean from the opinions with which we are familiar or the reasons stated therein. See, e.g., https://lawreview.uchicago.edu/online-archive/master-john-marshall-and-problem-slavery and https://lawreview.uchicago.edu/online-archive/john-marshalls-proslavery-jurisprudence-racism-property-and-great-chief-justice
I think you really misunderstood Professor Franks's point (and badly mischaracterized it). She simply did not say a lot of what you implied. The first part of her position was very similar to parts of the first chapter of Jacob Mchangama's outstanding book "Free Speech: A Global History from Socrates to Social Media" and the first episode of his outstanding podcast "Clear and Present Danger." Other parts of Professor Franks' position were similar to points illustrated in Stephen Solomon's impressively insightful book "Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech," which also was illustrated in multiple episodes of "Clear and Present Danger" (e.g., Nos. 21-24).
We really are blinding ourselves by focusing (and allowing judges to focus) exclusively on the First Amendment. It's like staring at a campfire at night. Even SCOTUS has not limited our protections to the words of the First Amendment. Why should we? It is well worth bearing in mind that SCOTUS justices (repeatedly throughout the past 100 years) have changed their minds about (what we think of as) our First Amendment rights and freedoms ONLY because other people convinced them they should. It is (and has been for hundreds of years) extremely detrimental to believe that SCOTUS is telling us the truth about the true meaning of our sovereignty.
Freedom of speech in the golden age of Athens was really important to many of the people who wrote our Declaration of Independence and our Constitution. That model of the freedom of speech--in a democracy by sovereign citizens engaged in self-government--is crucial to understanding what our true freedom to think and speak was meant to be. It was not meant to be restrained by ANY of the words that judges so often abuse to (wrongly) limit the scope of the First Amendment. To a great extent, our freedom of speech was meant to be and do what it was and did during the American Revolution (before we had a First Amendment or even a Constitution). Professor Franks, I believe, was saying something similar.
I think Professor Franks's point, in significant part, was that SCOTUS says a lot of the right words a lot of the time, but it does not protect the kind of speech you might expect. SCOTUS also did not and does not protect speech nearly as fully as you might expect from hearing about what SCOTUS did or does protect. SCOTUS has a remarkable history of protecting right-wing extremism (against disfavored people) and helping punish speech of people who speak against people in power. And what SCOTUS does protect is far less than half the story because SCOTUS denies a massive number of petitions requesting protection.
Beyond that, I understood Professor Franks's point to be that we should not look--as examples of how we should speak and conduct ourselves in our society--at the particular speech that SCOTUS has selected to protect (by granting cert petitions). At least in part, her point was that the mere fact that SCOTUS chose to protect certain speech is not a sign that it is worthy of emulation. FIRE's podcast (So To Speak) has made the same point from time to time.
With great respect for Will Creeley, his statements also seem to have been recorded earlier to respond to something other than Professor Franks's statement. She said we comfort ourselves with "myths about how [the First Amendment has] ALWAYS protected radical speech or how it's protected people who are fighting for democracy or equality." He refuted a vastly different argument: "some argue that the First Amendment ONLY protects powerful people."
Your own article emphasized Professor Franks's very point: until at least1925 (i.e., after the Civil War, Reconstruction, a lot of repression thereafter and even through the struggle for women's suffrage), the First Amendment was virtually worthless to people fighting for their liberties. The very text of the First Amendment was used to argue that it was irrelevant to all the abuses inflicted on people by people in power in states.
Do you want to know why SCOTUS can rob and defraud people of their rights like they did in Dobbs? People who believe that "without a strong First Amendment," civil rights "movements were easy to shut down" fail to understand what Madison, Hamilton, Daniel Webster and many other Federalists repeatedly emphasized from the outset. We didn't (and don't) need a bill of rights, we just needed (and need) to understand what "the sovereignty of the people" actually means with respect to our rights and powers.
Justice Ginsburg (in a dissenting opinion in Gamble v. United States, 587 U.S. 678, 728 (2019)) quoted Hamilton in The Federalist No. 22 to emphasize that the people are “sovereign” and the “original fountain of all legitimate authority.” To a great extent, the Bill of Rights states rights that flow from the fountain of our own sovereignty. Hamilton also emphasized this particular principle in The Federalist No. 84. Hamilton showed how the Preamble clearly declared the sovereignty of the people. He explained that the declaration of our sovereignty established that our Constitution need not enumerate rights. Citizens’ liberty and rights reflect and flow from of our personal and political sovereignty, which was secured in the original Constitution, not merely amendments thereto. Hamilton said and showed how the Preamble meant much of the same as the Ninth Amendment:
[Regarding rights] the people surrender nothing; and as they retain every thing they have no need of particular reservations [of rights]. “WE, THE PEOPLE [ ] to secure the blessings of liberty to ourselves [ ], do ORDAIN and ESTABLISH this Constitution [ ].” Here is a better recognition of popular rights, than volumes of [any] aphorisms [in any] bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
The original Constitution emphasized our political sovereignty (over each other and over our public servants) and amendments emphasized our personal sovereignty (each person over herself). Amendments I, XIV, XIX, XXIV and XXVI emphasized that political sovereignty and personal sovereignty belong to all citizens, regardless of creed, color, race, sex, wealth or age (after 17).
The First Amendment, for example, emphasized each person’s sovereignty over her own thoughts, beliefs and conscience (“religion”), communications (“speech,” “press” and “petition”) and associations (“religion,” “assembly”). The Second Amendment emphasized that each person’s sovereignty included even the right and power to take another person’s life in self-defense or for self-preservation. See, e.g., District of Columbia v. Heller, 554 U.S. 570 (2008). The Fourth Amendment emphasized the sovereignty of “the people” over “their persons, houses, papers, and effects.” The Third Amendment emphasized the sovereignty of “the Owner” over her “house.” The Thirteenth Amendment emphasized the sovereignty of each person over her person, time and energies by outlawing any form of “involuntary servitude.”
Open your eyes and see your own sovereignty. Don't be blinded by the words that people in power used to limit the scope of the First Amendment.
In fact, some of the best proof that the First Amendment was abused as an instrument of oppression comes straight out of SCOTUS. That was exactly the point of Barron v. Baltimore in 1833. It was written by another southerner chief justice who enslaved a lot of people. It is not even conceivable that Chief Justice Marshall did not know that, with that opinion, he was protecting people who enslaved other people and he was doing it by defrauding all Americans of our rights and liberties.
Don't take my word for that, take the words of SCOTUS, itself (now that SCOTUS doesn't need to deceive to support slavery). In our “republic” clearly “the people are sovereign” and “the ability” (the power) “of the citizenry to make informed choices” about public servants and public issues “is essential.” Citizens United v. FEC, 558 U.S. 310, 346-347 (2010). And SCOTUS explained exactly what our sovereignty means with respect to what we have been misled to believe are mere "rights" against the mere federal government (Congress) under the mere "First Amendment." Our sovereignty necessarily encompasses all our powers necessary and proper to our self-government, which includes speech (which includes suffrage) regarding (and often against) all government.
“The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.” Citizens United at 339. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Id. “Discussion of public issues” is “integral to the operation of the system of government established by our Constitution.” Id. at 340. “For these reasons, political speech must prevail against” any purported legal authority “that would suppress it, whether by design or inadvertence.” Id. “Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints. Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others. As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” Id.
The First Amendment is not and never should have been portrayed as the primary security of what we have been taught to think of as our First Amendment rights and freedoms. Our sovereignty is the pure source of our liberty. The First Amendment and its focus on "Congress" was designed to deceive (not by everyone, but by some). You could and should take the word of Chief Justice Marshall's contemporaries on SCOTUS.
Our “Constitution begins with the principle that sovereignty rests with the people.” Alden v. Maine, 527 U.S. 706, 759 (1999). It began by expressly emphasizing that “the people” did “ordain and establish the Constitution.” Id. (quoting U.S. Const., Preamble). The dissent in Alden, was far more powerful and explicit about the power of the sovereign people. They emphasized the opinions of three Framers, including Edmund Randolph (former Attorney General) and two justices (Chief Justice John Jay and Justice James Wilson) “in Chisholm v. Georgia” in 1793 “a bare two years” after “the Tenth Amendment,” was “added to the original Constitution.” Id. at 781 (Souter, Stevens, Ginsburg, Breyer, JJ., dissenting).
The dissenters in Alden emphasized that Wilson (at the Pennsylvania ratifying convention) emphasized that "the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare." That was "the major premise of what would later become Justice Wilson's position in Chisholm," i.e., that "the people, and not the States, are sovereign." Sovereigns obviously are free to speak and think for themselves.
Instead of just assuming that the 90 or 100 years of silence (after Barron) about the First Amendment was the way things were meant to be under our Constitution, we must recognize that SCOTUS deceived American sovereigns about and defrauded us of the "rights" we "retained" as sovereigns regardless of whether such rights were "enumerated" in our Constitution (as the Ninth Amendment emphasized, but as SCOTUS (to this day too often ignores)).
I have not had the pleasure of reading Professor Franks's book, but (I'm sorry to say) I think Professor Franks is more right than you. The evidence is in one of the most controversial and confusing words in the First Amendment--and the evidence is in the reason that it is the first word in the First Amendment: Congress.
James Madison fought bravely and determinedly to have our Bill of Rights restrain states, specifically regarding our freedom of speech and press and conscience. Coincidentally, Jefferson tried to have our Declaration of Independence eschew slavery. Both their efforts were thwarted by people in power in states that viciously oppressed people, denied them all liberty and insisted they were mere property.
The fact that Senators (each of whom back then was a direct representative of a state) made sure our Bill of Rights did not restrain states is a story well worth telling. It is a story inextricably intertwined with outrageous oppression--by people in power in particular states who were determined to (and did) abuse other people as mere property. They even specifically blocked speech and debate in Congress (and blocked our right to petition Congress) to oppose people in power oppressing other people by enslaving them.
So maybe we're being a little too hasty when we accept the history we've been handed by a SCOTUS that was a huge part of the machine for the oppression of people in America. If you're in doubt, read Dred Scott. A southern Chief Justice of SCOTUS specifically invoked the First Amendment to JUSTIFY "ruling" that black people (even free people) could not possibly be part of "the people." And a tyranny of the majority (on SCOTUS) joined him.
This is how Chief Justice Taney in Dred Scott used the First Amendment to JUSTIFY saying FREE "persons of the negro race" could not be "recognized as citizens." Such recognition had to be prevented (actually ruled unconstitutional by SCOTUS) because "it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this" liberty would have the effect of "inevitably producing discontent and insubordination among [enslaved people], and endangering the peace and safety of the State."