FEARLESS SPEECH

An indictment of the First Amendment for protecting toxic speech while stifling speech that “challenges hierarchies of gender, race, religion, and class.”

A law professor at George Washington University and the author of The Cult of the Constitution, Franks claims that the First Amendment contributes to injustice by enabling powerful and privileged individuals and organizations to use speech to harm the most vulnerable. Cushioned by the law, white supremacists marched in Charlottesville in 2017, and Twitter (now X) hosts and circulates bigoted and threatening posts. Such reckless speech strengthens racism and misogyny, she argues, while discussions of diversity, equality, inclusion, race, and gender are restricted in many public schools. Worsening matters is the false portrayal of the private, commodified world of social media as the new public sphere. Franks dreams of a world in which fearless speech that speaks truth to power is encouraged and defended. She thus shifts the debate from free versus censored speech to reckless versus fearless speech. Her heroes are people like Sophie Scholl, an outspoken student activist executed by the Nazis, and Christine Blasey Ford, who, at Brett Kavanaugh’s 2018 Supreme Court nomination hearings, testified about his alleged teenage sexual assault on her. Although Franks discusses legal issues, she is more concerned that speech be evaluated in the context of “objective, historical, material conditions of subordination.” The issue is whether speech enhances or degrades justice and democracy, and her argument leads away from judicial reform to broad educational initiatives. Franks’ zealous tone and uncompromising approach, which may put off some readers, are nonetheless appropriate, given her view that the First Amendment has long been used to validate speech that causes harm and glorifies violence beyond what a just and decent society should tolerate. Franks leaves it for others to make the counterargument.

A compelling case that any just assessment of free speech means thinking outside the frame of the First Amendment.