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Today, host Michael Fox speaks with Mary Anne Franks. She is a professor of intellectual property, technology, and civil rights law at George Washington University and the president of the Cyber Civil Rights Initiative. She is also the author of the book Fearless Speech: Breaking Free from the First Amendment*,*which was published in 2024 by Bold Type Books.
She has an incredible analysis about free speech historically and today — the challenges we face protecting it and how we need to try to understand free speech beyond the First Amendment. Michael and Mary Anne spoke last year, in 2025.
This is the second bonus episode of The Battle for Free Speech. The Battle for Free Speech Podcast is a production of The Real News Network hosted by Michael Fox and Marc Steiner.
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- You can check out the full Battle for Free Speech podcast series here.
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Transcript
The following is a rushed transcript and may contain errors. It will be updated.
Michael Fox:
Hi folks. I’m your co-host, Michael Fox, and this is the Battle for Free Speech. This is the second bonus episode in this series, and I’m really excited about this one. Today, I’m bringing you my full conversation with Marianne Franks. You will likely remember her from this series as I reached out to her in numerous episodes. She’s a professor in intellectual property technology and civil rights law at George Washington University and the president of the Cyber Civil Rights Initiative. She’s also the author of the incredible book, Fearless Speech: Breaking Free From the First Amendment, which I referenced often in this podcast. That book was published in 2024 by Bold Type Books. So today I’m bringing you my conversation with her in its entirety. We spoke last year, 2025. I hope you like it. In the intro to your book, Fearless Speech, you write, “Unfettered speech does indeed exist, but only for some Americans.” Can you tell me what you mean by this?
Mary Anne Franks:
Yeah. We have this, for lack of a better word, a myth that we tell ourselves as Americans that we have just this absolute right to free speech. It makes us really unique among all other countries. And I think that part of the reason why that myth persists is because I think it’s true for some people, and it’s particularly true, as I say in the book, that if you are a person who is saying things that go to the sort of worst of American society, that is the things that we should be most ashamed of as a society, our sexism, our racism, our elitism, if you are saying something that kind of converges with some of those ideologies, you get massive amounts of protection. There’s protection for really horrific personal forms of abuse, for stalking, for racist, infective. So those individuals, I think, who are invested in those forms of speech really can say with some accuracy that they get to say whatever they want with no consequences.
Michael Fox:
Where does this happen and why do these people get to say whatever they want? Whereas those people who are trying to stand up or standing for democratic speech or standing up for those people who have always been marginalized, why are their voices silenced? I mean, it seems crazy and it’s incredible that this is, like you mentioned, this myth that goes back, but it’s still here.
Mary Anne Franks:
Yeah, it is a form of some pretty high level constitutional gaslighting, because what we tell ourselves when we say things like, “Well, we have so much freedom of speech here,” we’re using a kind of cliche that has been passed down for generations. And part of what I try to do in the book is to actually track the history of speech and not in this limited sense. I mean, you think about how, I guess tautological is the word about how most First Amendment books or articles are written is they go back and they look at the First Amendment cannon, cases that were successful, including cases not just for the pornographers in the KKK, although that’s a lot of it, but also in some cases for civil rights protestors, for people who were vulnerable and were trying to say something actually revolutionary. So if you do that and you talk about, well, there’s a success here and there’s a success here, you can sort of extrapolate from that, oh, well that means that we have always had this really protective attitude towards free speech.
One of the things I like to point out though is that if you have to go back and look at all the times where people were hauled into court, where they were either being sued or imprisoned or otherwise punished for their speech and had to try to fight for their right to be able to do those things, that isn’t really a sign of a society that protects free speech. That’s a society that keeps arresting people and suing people for free speech that may or may not be vindicated. And for every case where the ACLU decided that it was going to throw its resources behind a particular individual, there are thousands, maybe millions of incidents where people who just went to prison, who just were silenced, who were just harassed into not speaking. And so if you push aside the cases for a moment and just look at history, you look at the very first instances of radical speech in America, and some of that happens within seven years of the ratification of the First Amendment, you’ve got people criticizing the government and the war effort, the war with France, and you’ve got immediately the Congress is doing exactly what it says it’s not going to do in the First Amendment and it passes the Alien and Sedition Acts and then we’re off to the races.
From the very beginning, we say as a country, we are protecting free speech in the same way that we say we the people. We don’t actually mean it. And if you actually really uncover what we do as a country, you can see that. So you get to the question of slavery, the abolitionists who were some of the most radical revolutionary speakers the United States certainly has ever experienced, and you had abolitionist literature being literally censored and suppressed, people going to jail for producing it, people being arrested if they were making statements, if they were preaching about the evils of slavery, if they were publishing newspaper articles that tried to document the horrors of slavery. So the whole history, if you think about the incredible work of Ida B. Wells, the pioneering journalist who gave so much attention to the lynchings that were happening in the South, her entire publishing office was burned to the ground.
Elijah Lovedre was shot by an angry mob because he wouldn’t stop writing about how slavery was wrong. So you go through that history, you go through the women’s rights movement where women were picketing outside the White House and advocating for the right for women to vote, being arrested, beaten, thrown into jail. You fast-forward to what happens to Black Lives Matter protestors, what happens to people who are trying to bring attention to the Palestinian genocide, what happens to women who are making claims about Me Too. And you see it again, that these are people who are getting arrested and thrown in jail or sued or otherwise humiliated and attacked in a way that sets their entire life on fire. While at the same time, if you are on the opposite of those issues, if you are articulating, and this is complex about the American psyche, because we’ll say things like, “Well, if you are speaking the speech we hate, we will protect you or we can’t just protect the speech we like.” The problem with that kind of cliche is that what does it mean to say the speech we like?
The people who’ve always been in power in the United States have been the people who like racist speech. They like sexist speech. They like a speech that discriminates between the wealthy and the poor. And so when we say that we’re actually really mixing up what is actually happening,
It’s much more accurate to say that the forces that hold this country together at the origins, which I by no means want to suggest is the limit of our possibility or aspiration, but it was white slaveholding men who did not believe that everybody should get the same rights. So if you are saying something consonant with that, whether you are the KKK member or whether you are the pornographer, you are most likely going to get your speech protected and everybody who actually challenges that, if you trace it throughout history overwhelmingly with a few exceptions, and I do want to say there are exceptions, it’s long history, the difference is that the people who are trying to speak against racism, against misogyny, against elitism, those are the people who get punished and it’s the people who speak in the same chorus as those forces that do get protected.
Michael Fox:
Wow. Can you talk a little bit about your concept of reckless speech versus fearless speech? I think that this intertwines with everything you’re talking about, and then also what does that mean today in this moment that we’re living in?
Mary Anne Franks:
Yeah, so when I was revisiting the Canon, when I was thinking about how to write this book and what it is that I wanted to say, one thing I wanted to do was to talk about how if for a moment we set aside the law and we just sort of look at the speech itself, we forget about whether the answer is, is this constitutionally protected or not? Because that becomes a virtue in its own right and that is very distracting and you just start to look at what people actually say. And it’s really that I found the concept of fearless speech before the concept of reckless speech really crystallized for me.
And I found that concept primarily because I was looking at on the recommendation of a friend of mine who had heard me speak about the kind of disparities that I saw between the kind of speech that gets protected and the kind of speech that gets suppressed. And he said to me, he said, “Have you read much of Michel Foucault’s lectures in the 1980s where he talks about a Greek concept that I think is really similar to what you’re saying?” I hadn’t at that point. And so that was the concept of Parazia, which is Michel Foucault translates as fearless speech. And he talks about how in Greek society, ancient Greek society, that’s actually the form of speech that is the most important for the preservation of democracy. It isn’t to say it’s the only way we can approach speech or the only kind of speech that matters, but it’s the one that really is the dividing line between democracy and other forms of government.
Now with all the caveats about how the Greek democracy was also not particularly democratic, but the concept was really fascinating, which is it’s not just that you get to say whatever you want. The Greeks did have a word for that too, this kind of idea that you could just say things without consequences, but the Greeks didn’t seem to think that that was the particularly valuable form of speech. They thought the most valuable form of speech was the kind of speech where you had to speak in your own voice. That was the first qualification, which is you can’t pretend to be a devil’s advocate or take on a role or just do it for rhetorical purposes, you had to commit to it. And they said you also had to be speaking to or about something that was more powerful than yourself as the speaker, someone in power, some force in power, and you could not be praising it because praising it is possible.
Of course you can do that, but that isn’t fearless. To be fearless about the way you speak about power is to criticize it. And it’s fearless because that creates risk to you because once you criticize people in power, you are in danger that the people in power are going to hurt you.
So that was the concept that I though, okay, that speaks to me as a concept of incredibly valuable speech, a way to distinguish between forms of speech because we tend to be very, just throw it all in the same category. And I thought about the famous cases in the United States, that is the KKK, that is Larry Flint, that is any number of forms of neo-Nazi speech. And then I think about why it is that we can easily say that whatever else is true about those forms of speech, they’re not fearless. These are not people who are taking a burden of speech upon themselves and actually taking a risk that they will be hurt by the people in power because they’re reinforcing power. Now by contrast, that is to say the harm goes in a different direction. If we think of fearless speech as someone who voluntarily assumes the harm against themselves because they know that what they say may mean that they get hurt, you contrast to a speaker like for instance, Clarence Brandenburg, the subject of this really famous 1969 Supreme Court case where he is full clan regalia, doing a march around a burning cross, got the Bible in hand talking about how Black people and Jews need to be removed from the country.
Now that is not the kind of speech. I mean literally someone in a mask who is proclaiming these things and stirring up dehumanization and rhetoric against people who are objectively speaking more vulnerable in society. And in the wake of those kinds of rallies, people did get lynched, they did get attacked. And the entire question in Brandenburg was how closely related do his words have to be to the attacks for it to be illegal? And they answered that his words weren’t close enough. But forgetting the doctrine for a moment, that’s reckless. You are putting this out into the world fully knowing that the people that it’s going to hurt or the people that it puts in danger is not you, it’s someone else. And there I though that is a really important distinction that I would like to emphasize.
Michael Fox:
That’s so incredible. The thing I’ve been having trouble grappling with for a while is the fact that when we think about free speech, there’s the Constitution, there’s a First Amendment, there’s what’s permitted, what’s allowed, and then there’s how people embrace free speech in their movements, like the abolitionists and how people use it. It’s almost like there’s these two worlds. There’s the free speech of the First Amendment of the Constitution of law, and then there’s how people take this on in order to kind of push forward important ideas, which of course is linked to the fearless speech that you talk about. Can you just dig a little bit more into this question of the abolitionist movement, how they use this, how important this was for them? I feel like that’s like this first movement where within the United States, fearless speech, people are really embracing this concept of free speech for the first time and how important that history is still today.
Mary Anne Franks:
I really like the way that you put this, how you put it, that it’s the use of the concept. It’s not the abstraction of the concept. It’s how did you enact free speech? And in many cases, I think the abolitionists, I think for some periods of time you saw the abolitionist movement self-consciously talking about freedom of speech, but for the most part you don’t see it because if we back up and we think about the evolution of the First Amendment for more than a hundred years, and we had a First Amendment that literally says, “Congress shall make no law.” So the assumption that everyone made based on that reading, and that’s a fair reading, is that it only applies to the federal government
Michael Fox:
And
Mary Anne Franks:
It only applies in this really narrow sense that Congress literally can’t pass laws that say, “You can’t say that or you can’t say this.” So that when you had states saying, “We don’t like this kind of activism or these kinds of expression that suggests that slavery is wrong or bad,” that was not really seen as a First Amendment issue because it wasn’t even conceptually or doctrinally possible. Now, I will say that when you look at people like Elijah Lovejoy, he very firmly read the First Amendment as a protection of his free speech. One of the most poignant things about his story as he is continuing to move states, move cities because every time he establishes his newspaper and writes about the horrors of slavery and advocates for abolition, he’s attacked and he has to move again. So on the day that he dies, the mob has found him once again and they are at his doorstep and they are saying, “You have to stop writing about slavery.” And I can’t remember the exact quotation, but he says that he has the freedom to speak in this way and he will use that freedom as he sees fit.
And he says that right before the mob shoots him to death.
So there’s a sense in which there were some members who really though of this as could really see the vision of the First Amendment that I think eventually became how people wanted or at least idealistically though we meant free speech. Free speech for the most radical democratic forms of speech. But by and large, I think that really wasn’t how people perceived it in part because there was such a backlash. When you look at Pennsylvania Hall, so this is something I write about in the book, the early effort, this wonderful humanistic effort that happens in 1838, I hope I’m getting the date right, where you had all of these luminaries coming together who were staunch anti-slavery advocates, and they were also advocates for women’s rights. And those are two of the most controversial positions you can take at the time. But you had all of these people wanting to come together, use their own money to build this incredible building that was supposed to become a communal hall for speaking freely.
And they referred to the freedom of speech in that way and that it was going to be for the first time that America would really speak freely. Black people and white people would mingle together, women and men would mingle together. There would be lectures, there’d be discussions, there’d be a bookstore. And it was such an incredible moment in American history that I think most people never read about because what happened when the people of Pennsylvania, and not just in Pennsylvania, there was all of these white-owned presses that were speaking about the abomination of Pennsylvania Hall in their Southern newspapers and advocating for people to go and fight for their rights against what was happening in Pennsylvania and all these flyers that were put up around Philadelphia by people who were saying that there are abominations going on at this particular hall and you should do something to stop it.
And so for the first week or so when they were having their incredible lectures and there were all of this incredible progressive mingling of society that these, again, kind of living up to the aspirations that the Constitution, the Declaration of Independence, the Bill of Rights actually articulated and people were furious about it. The white mobs were furious about it. White businessmen were furious about it. And what happens as I recount is that they get so agitated that they burn the entire building down and they break in, they’re breaking in with stones. They start pelting the building with stones as some of the speakers are speaking. So you’ve got, and I put this in the book too, Angelina Grimke giving her speech while there’s a mob trying to break in and trying to keep her physically from speaking. And she just incorporates it into her speech and talks about how we, she says, “We who are speaking the truth have nothing to fear.
They’re the ones who should fear and tremble.” But when they leave, the mob breaks in and sets and opens all the gas jets. And before you know it, this incredible monument to true free speech, expression, equality has been burned to the ground. So I think to some extent that was a very powerful kind of dampening of this moment that free speech and democracy were intertwined. I think it really did a lot to erase that from memory or put such a scar on that memory that that really wasn’t the way it was articulated for some time. And even when you saw the later abolitionist movements taking up the cause, I don’t think they so much talked about it in terms of free speeches. They just said, “This is about humanity. This is about evil. This is about a compact with the devil as they called the Constitution for its concessions to slavery.” So I think in some ways it was so much.
The project that they were working on was so much about democracy and the fighting against evil that they wouldn’t have articulated specifically as a free speech project because in some ways that would diminish what they were doing. It was about humanity. It was about stopping the scourge of something that was unforgivable and was America’s original sin.
Michael Fox:
Wow. What year was that Philadelphia Hall, do you remember?
Mary Anne Franks:
May 17th, 1838 was the day that the mob destroyed Pennsylvania Hall.
Michael Fox:
Amazing. Incredible. Can you talk a little bit about Ida B. Wells and her newspaper Free Speech? I think it’s fascinating that she chose that name for the newspaper and why was she so important? Why was her writing so important and what happened?
Mary Anne Franks:
It’s the post-Civil War society. She had a really interesting, fascinating career as a school teacher. And then when she started writing, she wrote about all kinds of. The way that I think she. I can’t remember exactly how she phrased it, but she was mostly speaking to Black individuals about what she considered to be sort of interracial problems and for a while was actually quite a sort of a moralistic scold, I think is even how she described herself in her own writings, that she was mostly focusing on trying to tell Black people how they should live their lives better. But then she got really consumed by the horrors of lynching because she experienced what had happened to people that she knew and in neighborhoods that she lived in. And suddenly that became what she really felt that she needed to communicate to the public. And as you might imagine, this was not received well.
And it was particularly an editorial that she wrote about the horrors of lynching where she wasn’t just talking about how lynching was a bad thing. She was saying, “Here’s what I think is actually going on with the problem of lynching.”
And this was something I think had not really been expressed before, certainly not by a Black female journalist, but she says, “The story that we keep hearing about these lynchings is that the men were told the Black men who are usually the subject of these lynchings that they’ve done something horrible to white women, that they’re raping white women.” She says, “Here’s what my research has shown,” because she went and she would follow on these incidents and she would gather information about them and ask questions. She said, “What I think is happening and what seems to be happening in these places is that there’s a problem of competition.” And she says, “And it’s not just economic competition, but that’s a big part of it. It just so turns out that many of the victims of lynching are people who are black men who were running businesses that were in competition with white businesses.” But then she suggests there’s a much more intimate form of competition when she says, “It’s not about, in many cases, sexual violence against these white women.
It was consensual relationships.” And that I think is really what drove the mob around her at this time from being very angry with what she was saying to being enraged in a way that was incredibly destructive. It was because she said, “I believe that black men are not raping white women. I believe that there are consensual relationships happening between black men and white women, and that is why lynching is actually happening. It’s a sexual vengeance project. It is why so often we see that these men are tortured in these ways that are very sexual and very physical.” And it really did seem to just animate the worst possible forces where she was in Memphis to drive them to that same kind of mob rage that we saw with Pennsylvania Hall. So she happened to be
Away when the mob kind of gathered itself together. And like Pennsylvania Hall, it was partly because there were editorials published in newspapers advocating or sort of agitating crowds to get together and do something. They didn’t know at the time that it was a woman who had authored this. They had assumed it was the previous editor of her newspaper. They assumed it was a man. They found him, they pistol whipped him until he told them who was actually the author and at that point talked about how she needed to be lynched as well. And so there’s all of this talk of what they’re going to do to silence her, and then they break into her offices and they destroy the presses of the Memphis free speech while she’s not there. So again, you see that same sense of all-consuming rage about the publication of this idea, and you can certainly see it in the way that the white newspapers talked about her editorial.
They would reprint her editorial and talk about how unbelievable it was that somebody would make such horrific accusations. And it’s so reminiscent in ways of the Pennsylvania Hall reporting. After Pennsylvania Hall was burned, there were a lot of editorials in Southern newspapers where they might say something about how, well, it’s a shame that this incredible building was burned to the ground, but not only were these radical ideas being stated in this hall, but also white women and Black men were seen leaving together and sitting together. And you could see that this was really something that was animating so much of a part of what was animating this kind of mob hatred, this real censorship was that sense of you cannot speak to that. You cannot speak to this idea that the black races and the white races might be mingling voluntarily together.
Michael Fox:
I’m fascinated by this idea that you mentioned in your book as well that racial justice advocates and social movements succeed despite rather than because of First Amendment protections. That’s what we’ve been talking about obviously for the last 20 minutes, but also that concept just breaks everything within this myth that we understand where it’s actually, they might be embracing the idea of free speech, but still they’re succeeding despite the protections that are actually waged against them. Can you just speak a little bit to this?
Mary Anne Franks:
Yeah. I think it’s in two ways, right? It’s that it’s in spite of the First Amendment in part because you think about what would’ve happened. If we imagine an alternative America where from the beginning we took the concept of free speech in the way that Elijah Lovejoy took it, which is to say we have to recognize if freedom of speech means anything, it is the freedom to criticize what we are doing, what the powerful people are doing in our society. And the most important thing for us to articulate at that time is slavery and close on its heels is the subjugation of women. Imagine if that had really been allowed to sort of take. If Pennsylvania Hall had never burned down and it really did become a temple of humanity where people began to see the things that they were deeply wedded to, ideas that they had always grown up thinking were correct, if they really had been challenged by other ways of thinking, if that had been allowed to flourish.
I mean, think about how radical and revolutionary that would’ve been. And then imagine that if that had shifted our discourse considerably, could it have meant that we weren’t going to have to have a bloody conflict to settle these scores? Could it have meant that we really did learn the lesson already too late, but still better than nothing to say that is what freedom of speech means and we have to embrace that. That’s truly the speech we hate, that is to say the speech that the powerful members of our society hate. We must give it as much protection as we can. I think about the mayor of Philadelphia being the people at Pennsylvania Hall pleading with him to give them protection because they knew that the mob was coming for them and the mayor was basically saying, “Well, what can you do? You’re saying radical things.” And he really basically declined to protect them and later blame them for their own destruction.
So imagine that we have this evolution where we move past certain types of racial injustice because we are truly radical and realize that we can get past our own original sin. So that would’ve been a very different context in which civil rights wouldn’t have had to take the path that it did. But also we would’ve learned that that is what it means to be radical and revolutionary in the sense of the First Amendment.
Michael Fox:
Instead,
Mary Anne Franks:
You get the Clarence Brandenburg version of what it means to be radical and revolutionary. We skip the part where it actually becomes the norm that slavery and all forms of racism and sexism are evil and wrong. Instead, it goes from becoming the way that society is constructed to, “Oh, he’s saying something very edgy that’s probably making you uncomfortable, but for that reason we should protect it.” And it’s like there’s nothing in between. And so at that point, quite literally, the KKK gets a second life and a third life, and it’s partly because it’s revitalized through these perversions of the concept of free speech to say, “Well, we must be allowed to say these things now that slavery has been abolished. We fix things in terms of racial injustice, and now it’s all gone too far. And so we are going to be the old guard who is going to be talking about how things used to be.” And then immediately that’s what gets so much protection, gets so much rhetorical resources and protection.
So you do that and then you allow for things like what I talk about in the book about Birth of a Nation and how it goes from being this very controversial play that sparks riots everywhere it’s performed, becomes a movie which sparks riots and lynchings everywhere it is seen. And you get one of the first sort of showdowns between the NAACP and the ACLU where the NAACP is saying, “This is going to get people killed.” And the ACLU saying, “You really need to understand that if you’re trying to advocate for censorship, it’s going to hurt you too at some point.” It’s one of those moments in the book where I’m trying to articulate the expression on my face when I read this, this idea of the NAACP being lectured by the ACLU, by the white director of the ACLU saying, “It’s going to come around and hurt Black people.
The law isn’t going to work for you if you advocate for restrictions now.” The obvious point being that the law has never really worked for Black people. Of course, it’s going to be used against them. It has been this entire time. That whole premise of the, “Well, don’t censor the radical white supremacist speech because it’s going to mean that you’ll get censored too,” completely erases the fact that radical abolitionist speech, as we were just talking about, has always been censored, has always been suppressed. So it’s this kind of retelling of history that is so perverse because it’s also this kind of lecturing that says, “If you just had a sophisticated enough view of speech and just enough confidence in the American people, you would understand that we just need to allow this kind of material to flourish so that you will be saved as much as the white supremacist will be saved.”
Michael Fox:
Yeah. I’m so grateful to talk with you today. This is so important because this is the question that I keep coming back to as well. What you just mentioned is the discourse, right? It is like it needs to be free for everybody, and that’s why we have to defend KKK and neo-Nazis and whatever else, but yet people that are standing up with fearless speech, they don’t get defended. This is the next step to that. Do we need regulation? Should there be regulation around hate speech? Should there be regulations limiting the reckless speech of people or the speech that is rooted in hate or racism, whatever else?
Mary Anne Franks:
Well, one of the things that I think we need is to stop thinking of hate Speech as a category. I say this for the American context because it is meaningful in the European context because they have a definition of it. It has legal force in other places. Here, I really feel like it always distorts the conversation because we don’t actually all agree, I’m sure, about what it actually means to say what hate speech is. And when we say either of these two very familiar assertions, which is either the First Amendment protects hate speech, it just does, that’s what makes us so special. Or the First Amendment doesn’t protect hate speech, which we heard the Trump administration of all administrations trying to say, they’re both wrong, partly because we don’t really have a category like this.
Michael Fox:
When
Mary Anne Franks:
You think about how you can’t actually use racial slurs in the workplace, for instance, you cannot threaten people, whether it’s based on their race or something else. If you’re making a true threat towards someone, that’s not allowed either. Many people would consider non-consensual pornography to be a kind of form of antagonistic speech that’s also, as far as we know, until the Supreme Court says differently, also not protected by the First Amendment. So I think we shouldn’t enter this discourse of is it hate or not hate because it’s always been such a strange concept. Part of what I think, what I sometimes refer to cynically as the free speech industries speak about this is they like those terms like hate because they’re so ambiguous that you can do whatever you want with them. That’s how you get the cliche of we have to protect the speech we hate without ever asking what does that mean to someone like Hugo Black who himself was a KKK member in his youth?He’s sitting on the Supreme Court.
What is the speech he hates? I don’t know. So I think we ask much more usefully and always have asked, but we haven’t been clear about what we’ve been asking, the best version of the First Amendment and the balance of what we’re trying to do by protecting speech, because it can’t just mean you protect all speech all the time. We never have as a country and it would not be an ideal way to run a country. I don’t think you could run a country by saying all speech is protected. When you think about all the ways that we do already restrict speech, we don’t allow perjury. We don’t allow the counterfeiting of money. We don’t allow you to say, at least knock on wood right now, that a bottle of aspirin is actually heroin or the other way around.
We don’t allow people to engage in child pornography. We don’t allow people to defame others completely even if they know that things are untrue. So the best version of what we have under the First Amendment is we separate harm from offense. The best version of the First Amendment we could have is one that says we can restrict, we always have restricted things that we consider to be harmful and we can regulate those in certain kinds of ways. Now the only debate should be over what falls into that category. What we ought to get rid of are things like hate and offense and whatever those things mean because they are so incredibly subjective and so easy to weaponize. You look at how the Republican Party has for many years tried to say that they are the free speech party and they’re just out there trying to advocate for the radical speech and the speech we hate.
And then as soon as it’s speech that they don’t like, they come out swinging saying, “Well, you can’t possibly speak ill of Charlie Kirk.” So you know how easy it’s going to be to weaponize concepts like hate and offense and people shouldn’t be allowed to say distasteful things. I think we really need to be clear though, the fact that something is offensive or distasteful or hateful also is not a sign of its merit. We don’t need to fall for that either. It’s just that it’s irrelevant. And it was really well put in a few of our previous Supreme Court cases like Cohen versus California, which is the fuck the draft case. The court says the fact that it’s offensive is not enough reason to regulate it. And that’s exactly right. But there may be points at which, for instance, as the court says about child pornography, there are certain forms of speech that are so harmful.
And just to be clear, because I know people always think when they hear that exception, they think, “Well, that’s because it always really involves a crime.” Not true. Kids who take pictures of themselves, that gets distributed by adults, that is considered child pornography even though the original act
Is not criminal. So we have just decided that certain things are harmful enough and now let’s just actually be inclusive about that and count other people than say white men in the category of people who can be harmed and things that maybe white men in particular might really like but really hurt other people maybe deserve to be regulated because they might be things that are as serious as defamation, as serious as perjury, as serious as a HIPAA violation, and actually consider what it means to articulate harm in that sense and regulate accordingly.
Michael Fox:
Yeah. Can you talk about the marketplace of ideas? For you, what does this mean and is our praise for this idea flawed?
Mary Anne Franks:
For a long time I used to criticize the metaphor because I though, “Well, what a horrible metaphor that is. Tha shouldn’t be the way that we look at speech.” And now I’ve come to the point of saying it’s not that it’s a horrible metaphor, it’s that it’s entirely accurate. And because this is something I’ve noticed about the strange convergence between civil libertarians and economic libertarians, which is this idea that the market somehow is good. The presumption that markets are good and that markets work and that the best way to have a functioning market is to never regulate it. And none of that is true, but all the things that I think people who are savvy about free market ideals would say, which is that there’s no such thing as an unregulated market, full stop. There’s always regulation. You can’t have a market unless you regulate.
The question is always, how do you regulate? Who do you regulate and what are you regulating for? Once you understand that, you realize that deregulation is almost always an ideological pre-commitment to an asymmetry. The haves have and the have nots don’t. And so yeah, we’ll just freely let them have interactions with each other and hope for the best. And that’s really what we are doing with our free speech discourse. We are saying whatever the status quo is, just don’t touch it. I mean, we’ve got enough laws, we can’t possibly come up with anything now that would be wise and so just leave it alone. And that’s ridiculous. And I think most people who would hear that about the market, the actual economic market would understand that’s a crazy thing to say, that you’re going to get the best possible outcome by just letting the status quo flourish.
And so I would just suggest that we be as critical about the marketplace of ideas as we ought to be critical about economic inequality and distorted markets and monopolies and all the things that we should recognize are bad things when they happen economically and are really bad when they come to ideology as well.
Michael Fox:
Amazing. Maryanne, just a few more questions and thank you so much. What is your definition of free speech and would you say that Trump is trying to kind of redefine what we understand as free speech today?
Mary Anne Franks:
Yes. I definitely think that there’s a redefinition going on and it’s not just Trump. I mean, it’s been in the works for some time. His administration is putting it into effect in a way that we’ve never seen before. We’ve never seen on the scale. I think it is really close as many people have highlighted, is close to the McCarthy era version of what free speech, of not what free speech is, but what the McCarthy era of what we are allowed to suppress in the name of ideological conformity. And this is where I think it’s really important because I’ve noticed this about reactions to my book where people seem to think what I’m saying is, well, we shouldn’t protect any speech except fearless speech. And then the criticism is, well, who gets to decide what fearless speech is? You just want speech you like. Okay. So I want to separate that fearless speech is what I consider to be valuable and interesting and we should celebrate, but that’s actually different from the legal question of what should be protected by the First Amendment.
It’s a cultural question versus an illegal one. But the legal one I think is one about staying true to the best versions of our doctrinal tradition. And we do have some really good lights on this, and particularly the case of West Virginia Board of Education versus Barnett is I think it is the case that we should be looking to see what the First Amendment really should have always meant and should continue to mean if it is going to do its one job. And I firmly believe this, and if I’m on the other side of people when I say this, so be it, but the First Amendment’s one job is to keep us from becoming a totalitarian society. That’s its primary job. Everything else is secondary. And if your free speech doctrine, if your free speech law isn’t keeping us from sliding into fascism, but is instead accelerating our path to fascism, then it’s not working.
So what do we have in 1943? We have Justice Robert Jackson who in two years later is going to become such a key figure in the Nuremberg trials, someone who is paying attention to what is happening in Nazi Germany, who is paying attention over and over again to the idea that democratic ideals, including freedom of speech, can be appropriated for fascist ends. He is aware of it in a way that I think is probably singular among Supreme Court justices. And we get this case that is seemingly innocuous, right? It’s a case about kids in a public elementary school who have refused because of their religion, their Jehovah’s Witnesses, have refused to take the pledge of allegiance in this compelled way to give the pledge, to recite the pledge of allegiance, and they’re expelled. And the question is whether a public school as an arm of the government is allowed to force that kind of compulsion.
And not only does Justice Jackson point out something that I think gets lost in a lot of our First Amendment, sort of the culturally popular, popular culture version of the First Amendment, which is the freedom to speak is as much about the freedom not to speak as anything else.
Michael Fox:
So
Mary Anne Franks:
He says, yes, compelled speech, the government telling you the ideas you have to have is just as damaging as telling you what ideas you’re not allowed to have. So why do I love this case and why do I think that is the version of free speech we need to have? And I guess I would be a little bit of a little pedantic about this to say I don’t know that it’s a. My version of free speech is large and cultural and needs sort of content. My version of the First Amendment is you cannot impose government orthodoxy. That’s what Justice Jackson says in this case, whether by punishing people for saying things that are critical of the government or by forcing people to say things that we consider to be the right way, either one of those violates the First Amendment. And it’s such a clear articulation of what is so important about the First Amendment, which is that the purpose of the First Amendment is to restrain the government, restrain the government, not to restrain social media unless of course the person who owns social media is also a government official, which is true of True Social because Donald Trump owns True Social, which was true when Elon Musk was in the government.
So putting that aside because that should never have happened, it is not about lecturing universities about what they can and can’t say. It is not about lecturing social media companies or Jimmy Kimmel or anybody else. It is about the government not being allowed to tell you what to say and not being allowed to punish you for what you say simply because it doesn’t like it. That I think is the best articulation of what the First Amendment’s job really is, and that is how the Trump administration has flipped it entirely on its head because what is the Trump administration saying over and over again? It’s saying to private actors, “We, the government, are allowed to tell you what to say.” Jimmy Kimmel said something we don’t like, “We the government are going to try to get him fired or threaten someone so that he does get fired.” The government is now saying, “We think that there’s one way for you to respond to Charlie Kirk’s death.
And if you don’t say that, then we can punish you for that.” That is exactly the opposite of what free speech means in a meaningful First Amendment sense. It has to be about restraining the government so that the rest of us who are not in the government are allowed to speak as freely to each other as we want, not to have that criticize as cancel culture or wokeness or whatever one wants to call it. DEI, look at that. Diversity, equality, inclusion, those are forms of speech. Those are forms of exchange. Those are forms of having debates, having a question about whether more values as opposed to fewer values is a good idea. Those things are speech and those attempts to restrict it by the government are forms of censorship and that’s what we have to see beyond the distortions of what the Trump administration is telling us.
Michael Fox:
So important. For you, what’s your level of concern around the state of free speech today under Trump? Have we ever seen a situation like this in modern America?
Mary Anne Franks:
I don’t think we have. I mean, in the early days of the second Trump administration, along with a lot of other people, were making comparisons to the McCarthy era. And I think most of us who are paying attention are saying this is so far beyond what happened during McCarthy, partly because McCarthy didn’t have the same cult of personality around him and he wasn’t the president. There were limitations on how much power and how much damage he could do. And there are no limitations on Trump because of our Supreme Court basically telling him that there are no limitations on what he’s allowed to do. And whether we in litigation, because I don’t want to sound fatalist in the sense that it is true that people are standing up and fighting and some courts are acting on their principles regardless of the personal threats to them, which it is a horrific thing to have to acknowledge in our society that judges are under threat because they’re doing their jobs and that litigation is going to save some of this.
But then in the meantime, we have an administration that does not believe that it is constrained by the law. I don’t think we’ve ever seen that in the United States, at least in modern history. And so it’s not just the free speech question, but again, the free speech question is hugely important, but this is a government that is in fact declared an all out assault on all speech that does not conform to what Trump says it should conform to. And so we’re being attacked on every side. It’s universities, it’s social media, it’s mass media, it’s newspapers, and it’s not just through, we’re going to throw you all in jail or we’re going to descend armed soldiers towards you, although that’s a huge part of it. It’s also because of the marketplace, the literal marketplace where Jeff Bezos owns the Washington Post and Amazon and a gazillion other things.
And Elon Musk has all this power to use X as a propaganda channel for his own views, for Donald Trump to be able to get personal enrichment from True Social as his propaganda channel. It is the conglomeration, all the consolidation we’re seeing around mainstream media as well. The fact that we’ve got one handful of corporations that are controlling all the ways that we get information, exchange information. This is a real problem and the Trump administration didn’t create it, but they are making such good use of the fact that our entire information ecosystem is essentially dominated by six men. So that is something that we should all be terrified by because it is the government acting with its powers to hurt people, to deport people, to kidnap people, to torture people, whic