FEARLESS SPEECH: BREAKING FREE FROM THE FIRST AMENDMENT

Written by Mary Anne Franks, Reviewed by Marc Alexander

Professor Mary Anne Franks’s Fearless Speech is a sustained argument, with footnotes, resting on Franks’s contrast of "reckless speech" with "fearless speech." Franks writes: "What has been most protected in the United States above all is not fearless speech in the service of equality but rather reckless speech in the service of racial and gender hierarchy." Franks, however, wishes to promote "speech that seeks to communicate truth no matter what it might cost the speaker." The model for fearless speech is that gadfly Socrates, charged with failing to respect the gods and corrupting the youth of Athens. Another figure who inspires Franks is Sophie Sholl of White Rose fame, guillotined at the age of 21 in Nazi Germany for distributing leaflets critical of the fascist regime.

Franks argues that the First Amendment has not been as important as we may believe for protecting fearless speech. "[I]t was not the First Amendment," writes Franks, "that abolished slavery, or exposed the horrors of lynching, or fought for women’s equal rights. Fearless speakers accomplished those things. Most of the time they did it without the shield of the First Amendment…."

While Franks’s critical view of the damage caused by the First Amendment protecting reckless speech may seem startling, it is not entirely new. Back in 2014, Professor Steve Shiffrin of Cornell, recognizing that he was not a part of the "American mainstream," delivered his Melville Nimmer lecture at UCLA titled The Dark Side of the First Amendment. Shiffrin condemned "the sin of First Amendment idolatry." According to Shiffrin, the First Amendment was "at odds with human dignity." He was troubled by rulings protecting speech depicting animal cruelty, demonstrations inflicting emotional distress at funerals, publication of the names of rape victims, marketing of violent video games to children, tobacco advertising, and permitting corporations to dominate American political campaigns at local, state, and federal levels.