Fearless Speech: Breaking Free from the First Amendment

Professor Mary Anne Franks recently was a witness for the Democrats in a congressional hearing about the so-called censorship industrial complex." She criticized the claim of victimhood and noted the true censorship problem was Trump. 

Multiple Republican senators trolled her, including, without context, lashing out at an article about " Supreme Court as Death Panel," which is a criticism of their opinions striking down abortion rights and, in her view, too expansively defending gun rights. This results in lethal policies.

Franks wrote a book, for which I provided a book summary, entitled The Cult of the Constitution, critiquing the misguided worship (in her view) of the first two amendments. This does not mean free speech and self-defense are not worthwhile. It means a certain view is open to criticism.  

The first half foreshadowed her second book, which she covered years ago in an article on favoring "fearless speech" as a First Amendment model:

This Article proposes that First Amendment theory and practice should be reoriented around the ancient Greek concept of parrhesia, or fearless speech. As the philosopher Michel Foucault describes it, the speaker of parrhesia "chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy." Parrhesia is, in essence, the act of speaking truth to power.

Legal Theory Blog recommends her second book. A summary:

In Fearless Speech, Dr. Mary Anne Franks emphasizes the distinction between what speech a democratic society should protect and what speech a democratic society should promote. While the First Amendment in theory is politically neutral, in practice it has been legally deployed most visibly and effectively to promote powerful antidemocratic interests: misogyny, racism, religious zealotry, and corporate self-interest, in other words, reckless speech. Instead, Franks argues, we need to focus on fearless speech—speakers who have risked their safety, their reputations, and in some cases their lives, to call out injustice and hold the powerful accountable. 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.

She speaks about the book here. Okay. I read both books. I found both interesting and helpful. 

I disagreed with various aspects of both books. I also found the last chapter of this one, talking about possible avenues of reform, a slog. The earlier chapters were more down-to-earth. One provided snapshots of fearless speakers. 

She notes that Ancient Greeks had two types of free speech. One part allowed each citizen to have an equal role in society and government. The other is the "fearless speech" concept of bravely, with some risk, speaking truth to power. I think both matter. And, sometimes "reckless speech" is good.

Recklessness is doing something risky without considering the possible harm. It is not the same thing as purposely causing harm. Is a Nazi marching in a Jewish heavy neighborhood (the Nazis never did march in Skokie) reckless or just plain irresponsible? But that is somewhat a carp.

Franks in her first book talked about the dangers of free speech as well as the mythos of the "free market of ideas." For instance, Twitter/X promotes harassment in a variety of ways. The result is silencing people. Is that not a form of censorship?

A prime example of Christine Blasey Ford after she accused Brett Kavanaugh. Ford, in her book, spells out how her family had to go into hiding for months. This fact is woefully underreported. And, this is someone who is white and privileged in multiple ways.  

We cannot glorify the free speech value of the Internet and so forth without dealing with the problems. And, going with that metaphor, we regulate the market. An unregulated market leads to many harms. See also here and here for two related books. 

Franks also notes that historically that free speech has repeatedly only benefited some people. This is a valid argument, though it reflects the inequality of society. Free speech has repeatedly benefited more people. Her book only tells one side of the story. She provides a side that many other accounts also do not address.  

The book is also about promoting fearless speech as a concept. Free speech law generally protects us from the government. It includes the choice not to listen. The choice to join private groups that keep some people and views out. Twitter was not wrong to have more limits than Musk's X.

I do not agree with all of her line drawing. She criticizes a 1980s lower court opinion that struck down a law against discriminatory porn that harms women. 

I think the opinion was correct. How can we allow a law that turns on viewpoint? What is the stopping point? For instance, consider a law that blocks speech that says gay people are immoral and disgusting. Such speech most definitely harms people. Should we ban that as well?  

Fearless speech, brave, honest, and bluntly honest expression, has much value. It deserves a hearty defense. And, no, anti-women speech is not truly that. It quite often reflects the voice of those in power. Hello, Trump.  

It is not the only type of speech out there. There is a good criticism of the libertarian model, including the use of dark money and (though I think it is less necessary now) no fairness doctrine. The "fearless speech" model only covers part of that critique. 

And, it is wrong that the heroes we honor do not include many fearless speakers. The first set of free speech debates we often hear about were workers, sex radicals, and pacifists. We learn about opposition to the "gag rule" on anti-slavery speech.  

An argument can be made that too often the accounts emphasize the "people we hate." Still, I do think that is overblown even on that level. We talk about children who wore armbands. Those who didn't want to pledge allegiance or say Christian prayers. Fearless speakers are referenced.  

So, I have my problems with the book. Still, including the chapter about some fearless speakers, there is a lot to appreciate. I do wish the last chapter had been written in a crisper way. 

My traditional view on free speech was broadly libertarian. Over the years, I became somewhat more open to the reality that absolutism does not work in the real world. The lines to draw can be complicated. 

Also, different points of view can be reasonable even if they are wrong on certain levels. After all, democracies worldwide do not follow multiple of our constitutional principles in various ways. And, they are still pretty good. Bottom line, check it out.