Free Speech

Eugene Volokh | 10.30.2024 8:01 AM

I'm delighted to pass along this book review by Prof. Jacob Mchangama (Vanderbilt), who is the author of Free Speech: A History from Socrates to Social Media and other works on free speech.

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Mary Anne Franks claims that her new book, Fearless Speech: Breaking Free from The First Amendment, "offers a different and bolder perspective on free speech that takes power, harm, and history seriously." In this post (adapted from a thread on X) I provide a brief critique of Franks' thesis and methodology.

Franks argues that "First Amendment norms have consistently exalted and elevated reckless speech that benefits the powerful at the expense of the vulnerable. This exploration peels back the rhetoric of free speech to expose how it has perpetuated and maintained a neo-Confederate ideology of white male supremacy."

Franks rightly points out that proponents of slavery and white supremacy systematically censored proponents of equality. But she conveniently omits that many of those whose voices were quashed were deeply committed to a universalist and principled conception of free speech. Take Frederick Douglass, who is entirely left out of the book. Douglass insisted that "the right of speech is a very precious one, especially to the oppressed" and that "[n]o right was deemed by the fathers of the Government more sacred than the right of speech." To Douglass, free speech was "the dread of tyrants" and critical to the abolitionist movement.

Douglass also famously argued, "A man's right to speak does not depend upon where he was born or upon his color. The simple quality of manhood is the solid basis of the right—and there let it rest forever."

In the South, which criminalized abolitionist speech, Douglass would have been tortured and executed for his "incitement." In the North, where anti-slavery speech was better protected, he became a sensation who moved hearts and minds. In reflecting on Douglass' 1841 speech in Nantucket, William Lloyd Garrison wrote, "I shall never forget his first speech at the convention — the extraordinary emotion it excited in my own mind—the powerful impression it created upon a crowded auditory, completely taken by surprise—the applause which followed from the beginning to the end of his felicitous remarks. I think I never hated slavery so intensely as at that moment."

In her book, Franks jumps from Whitney v. California (1927) to lynchings and KKK terror to the Brandenburg decision in 1969. She argues that SCOTUS upheld the conviction of Anita Whitney under the "bad tendency" test but moved to a "reckless speech" standard in order to overturn the conviction of a KKK leader who threatened "revengeance" against Blacks and Jews in Brandenburg v. Ohio (1969).

But along the way, she forgets to mention landmark cases often brought by civil rights activists expanding their right to speak and breathing new life into the First Amendment to the benefit of all Americans. In Herndon v. Lowry (1937), the U.S. Supreme Court overturned the Georgia Supreme Court's upheld conviction of an African American who possessed Communist publications In NAACP v Alabama (1958), the court ruled Alabama violated freedom of speech and assembly by attempting to access membership lists of the NAACP. In Garner v. Louisiana (1961), the court ruled that Louisiana could not convict peaceful sit-in protestors under state's "disturbing the peace" laws. Edwards v. South Carolina (1963) found that the Constitution forbids state officials from forcing a crowd to disperse when legally marching for civil rights at the state house. And New York Times v Sullivan (1964) overturned the Alabama Supreme Court's defamation decision against supporters of Martin Luther King, who placed an ad in the New York Times, limiting the ability of public officials to sue for defamation.

Franks also omits that Justice Thurgood Marshall—a civil rights icon and the first black Supreme Court Justice—voted to overturn Brandenburg's conviction and establish the Brandenburg test that protects hate speech. Was Marshall also duped by neo-confederate ideology?

Moreover, two of the ACLU lawyers working on the Brandenburg case were Allen Brown, who is Jewish, and Eleanor Holmes Norton, an African American woman who went on to become a D.C. delegate to Congress (as a Democrat, not a member of the KKK). In an interview with C-SPAN, Holmes Norton argued why standing up for the neutrality of speech was important during the civil rights era and why "sometimes I gotta defend people who would not defend me."

Franks briefly cites civil rights leader John Lewis on democracy but omits his famous quote about how the First Amendment........

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