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Mary Anne Franks targets ‘antidemocratic, racist, misogynistic, and corporate self-interest speech’ in forthcoming book – First Amendment News 412

“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.” — Mary Anne Franks
by
First Amendment News with Ronald Collins signature

Mary Anne Franks is not shy about exercising her First Amendment right about “what’s wrong with the First Amendment.” 

Eight years after the late Steven Shiffrin published a book by that very title, Franks picks up that gauntlet in a bold forthcoming book titled “Fearless Speech: Breaking Free from the First Amendment.” 

Mary Anne Franks
Mary Anne Franks 

First, let me set the conceptual stage by sharing a few words from her publisher, Bold Type Books:

Since its inception, more than twenty years ago, Bold Type Books has aimed to challenge power through narrative. That mission is at the heart of every book we put into the world: works of urgent and ambitious journalism, deeply researched creative nonfiction, revelatory cultural analysis and social history, and memoir that inhabits the intersection of the personal and the political.

As Bold Type barrels into the future, we remain committed to deconstructing systemic injustice, moving readers to question the status quo, and to a constant exploration and expansion of how literature might accomplish these goals. Extraordinary uses of language challenge power. Narratives that are nonlinear, non-redemptive, and otherwise distinct in form challenge power.

[ . . . ]

The product of a dynamic partnership between the journalism nonprofit Type Media Center and Hachette Book Group, Bold Type has published bestselling books by a diverse range of essayists, activists, journalists, groundbreaking academics, and other thought leaders, with a particular focus on emerging and historically excluded writers.

Now on to a few words about the professor and her bold new book:

Professor Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at George Washington Law School. She is also the President and Legislative & Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. In 2013, Professor Franks drafted the first model criminal statute on nonconsensual pornography (sometimes referred to as “revenge porn”), which has served as the template for multiple state laws and for pending federal legislation on the issue. Franks advises several major technology platforms on privacy, free expression, and safety issues. She has been an Affiliate Fellow of the Yale Law School Information Society Project since 2019.

Franks is the author of “The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech” (Stanford Press, 2019). She was awarded a Knight Foundation grant to support research for her second and forthcoming book, “Fearless Speech.” Her scholarship has also appeared in the Harvard Law Review, the California Law Review, and UCLA Law Review, among others.

Uninhibited, robust and challenging: make of her provocative mindset what you will, but Professor Franks is a force to be reckoned with — just the sort of Socratic sting that keeps the free speech conversation wide open.

The Book

Fearless Speech- Breaking Free from the First Amendmen.jpg

From the Bold Type Books website:

A powerful debunking of First Amendment orthodoxy that critiques "reckless speech," which endangers vulnerable groups, and elevates "fearless speech," which seeks to advance equality and democracy.

Freedom of speech has never been more important — or more controversial. From debates about what's permissible on social media, to the politics of campus speakers and corporate advertisements, the First Amendment is incessantly in the news and constantly being held up as the fundamental principle of American democracy. Yet, in reality, it has contributed more to eroding our democracy than supporting it.

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.

Told through an accessible narrative and ending with a call for change that urges us to reevaluate the legal precedents and uses of the First Amendment, Fearless Speech is a revelatory new argument that urges us to reimagine what our society could look like.

As sure as gravity sucks, many of our readers will take exception to professor Franks’ views as highlighted here. Welcome to our world! Then again, what would that world be without irritating dissent?

Since “Fearless Speech” is not yet out, any critical comment (or even praise?) must, in fairness, be reserved until its release.

For now, a tormenting tease must suffice. Stay tuned.

Related

Docket Watch: Oral arguments this term

  1. O’Connor-Ratcliff v. Garnier (argued Oct. 31)

Issue: Whether a public official engages in state action subject to the First Amendment by blocking an individual from the official’s personal social media account, when the official uses the account to feature their job and communicate about job-related matters with the public, but does not do so pursuant to any governmental authority or duty.

  1. Vidal v. Elster (argued Nov. 1)

Issue: Whether the refusal to register a trademark under 15 U.S.C. § 1052(c) violates the free speech clause of the First Amendment when the mark contains criticism of a government official or public figure.

  1. Moody v. NetChoice, LLC / NetChoice, LLC v. Paxton / NetChoice, LLC v. Moody (argued: Feb. 26, 2024)

Issue: Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements.

Related

  1. National Rifle Association of America v. Vullo (to be argued: March 18, 2024)

Issue: Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.

  1. Murthy v Missouri (to be argued: March 18, 2024)

Issues: (1) Whether respondents have Article III standing; (2) whether the government’s challenged conduct transformed private social media companies’ content-moderation decisions into state action and violated respondents’ First Amendment rights; and (3) whether the terms and breadth of the preliminary injunction are proper.

Forthcoming handbook on combating book bans

Fighting Censorship: A Handbook for Pushing Back on Book Bans equips readers with arguments against the common reasons that are given to ban books in schools and public libraries. In September 2021, the school board in York, Pennsylvania, voted to remove many books from school libraries in its community. The Panther Anti-Racist Union (PARU) at Central York High School, comprised of four students and two advisors, successfully fought the ban by organizing protests and media interviews to raise awareness. 

In this book, the group takes on book banning and gives readers actionable advice for how to fight back against book bans, speak out against censorship in their communities, and win the right to intellectual freedom.

Related

New scholarly article on digital book banning

Catherine Ferri
Catherine E. Ferri

Book banning predates the United States and has survived and thrived in a splintered twenty-first century political climate. As the fight for the minds of the public continues, state and local governments have ramped up their efforts to ban books in public and school libraries. Public libraries, as limited public forums, must ensure their restrictions on access to information are reasonable and viewpoint neutral. School libraries receive some reprieve under a slightly more deferential Pico test. However, e-book services present a unique set of challenges. Also known as digital libraries, e-book services provide digital access to thousands of books, magazines, and other titles. Frequently, libraries will contract with e-book services, allowing library patrons access to titles beyond what libraries have in physical copy. 

However, a number of conservative states are attempting to restrict e-book services via legislation or blanket suspensions. This Note aims to make sense of e-book services and book banning against the backdrop of the First Amendment. 

Part I argues e-book services should be considered extensions of public libraries and public school libraries. It draws analogies from other, more established areas of law to propose e-book services are a part of the library under a nexus theory or another theory of government reliance. 

Part II argues banning or suspending a full e-book service is comparable to banning or suspending access to a whole section of the library to target one book—a violation of the First  Amendment because it is politically motivated viewpoint discrimination. E-book services severely complicate First Amendment doctrine regarding book banning. This Note attempts to clarify the intersection between this new technology and longstanding Supreme Court precedent dictating state officials’ right to ban books and patrons’ right to read them.

New scholarly article on AI: ‘not protected speech’

Peter Salib
Peter Salib

AI safety laws are coming. Researchers, advocates, and the White House agree. Rapidly-advancing generative AI technology has immense potential, but it also raises new and serious dangers — deadly bioterrorism, crippling cyberattacks, panoptic discrimination, and more. Regulations designed to effectively mitigate these risks must, by technical necessity, include limits on what AIs are allowed to “say.” But according to an emerging scholarly consensus, this will raise grave First Amendment concerns, because generative AI outputs are protected speech.  

This Article argues otherwise. AI outputs are not protected speech. The reason is simple. When a generative AI system — like ChatGPT — outputs some text, image, or sound, no one thereby expresses themselves. Or at least no one with First Amendment rights does. AIs themselves lack constitutional rights, so their outputs cannot be their own protected speech. Nor are AI outputs a communication from the AI’s creator or user. Unlike other software — video games, for example — generative AIs are not designed to convey any particular message. Just the opposite. Systems like ChatGPT are designed to be able to “say” essentially anything, producing innumerable ideas and opinions that neither creators nor users have conceived or endorsed. Thus, when a human asks an AI a question, the AI’s answer is no more the asker’s speech than a human’s answer would be. Nor do AI outputs communicate their creators’ thoughts, any more than a child’s speech is her parents’ expression. In such circumstances, First Amendment law is clear. Absent a communication from a protected speaker, there is no protected speech.

This, however, does not mean that AI outputs get no First Amendment protection at all. The First Amendment is capacious. It protects — albeit to a lesser extent — many things besides speech, like speech-facilitating activities and tools. For example: listening and loudspeakers, respectively. This Article explains why, as a matter of First Amendment law, free speech theory, and computer-scientific fact, AI outputs are best understood as fitting into one or more of these less-protected First Amendment categories. These insights will be indispensable to the regulatory project of making AI safe for humanity.

New scholarly article on police and racial justice demonstrations

During the summer of 2020, there were also thousands of racial justice protests as well as public demonstrations about other social issues, such as protests related to COVID-19 pandemic measures, labor movements, LGBTQ rights, political candidates, support for white nationalism, and more. This presented a unique opportunity to study how police responses to protests may have varied depending on the issue being protested.

This research uses an original dataset collected by a team of researchers from Colorado College led by Charlotte Schwebel and Daniel K. N. Johnson. The research team sought out all public protests in the 27 selected cities from May 1 through October 31 of 2020, using news sources, social media sources, the Armed Conflict Location and Event Data Project,88 and the Crowd Counting Consortium. The 27 cities were selected to represent geographic, demographic, and political diversity.

Our analysis found striking disparities in police responses to protests in the summer of 2020. At racial justice demonstrations, police were more likely to be present, more likely to have an escalated presence (i.e., riot police, state police, or national guard), and more likely to escalate their response to include arrests, projectiles, and chemical weapons, compared to similar demonstrations unrelated to racial justice. We begin this brief by describing the significance of the right to protest and how inequitable police responses to protest can undermine U.S. Constitutional rights under the First Fourth, and Fourteenth Amendments. We then present the findings from our analysis of protests in the summer of 2020, discuss the implications of these findings, and argue that police, ultimately, should not be tasked with managing protests.

Geof Stone on campus protests and Israel-Hamas war and beyond

Harry talks with noted First Amendment scholar Geoffrey Stone about a series of issues that the protests over the Israel-Hamas war present. Can States and colleges ban the ripping down of hostage signs, and are those actions illegal under current law? Does the First Amendment protect the taping of protests and protesters? Under what circumstances, if any, may government ban the wearing of masks by protesters?

Is enthusiastic support of the October 7 attacks entitled to constitutional protection?  Does the answer to any of these questions vary depending on whether the regulator is a state, a public university, or a private university? It’s an illuminating discussion about a topic of great contemporary importance.

WATCH: Free Speech Principles and the Current Wave of Protests over the Israel-Hamas War

 

Related

FIRE: Worst ‘free speech villains’ on and off campus

10 Worst

Each year, FIRE names and shames the worst-of-the-worst silencers, bowdlerizers, and steamrollers of free speech.

This year, we’ve included five free speech villains whose chilling misdeeds happened off of college campuses. The list below includes people guilty of many forms of censorship including raiding a small-town newspaper, punishing a middle schooler for wearing eye black at a football game, canceling students and professors for their views on the Israel-Hamas war, and retroactively censoring famous authors without their consent. The 13th annual Lifetime Censorship Award went to Harvard University, a university as censorial as it is famous.

Read on for full descriptions, in no particular order, of these censors’ attempts to turn America into the land of the silenced and home of the afraid.

FIRE’s 2023 list of worst censors includes (see link above for descriptions)

  1. California Community Colleges
  2. Florida state officials
  3. Hypocritical university admins
  4. The Marion County Police Dept.
  5. The Mayo Clinic College of Medical Science
  6. Muirlands Middle School
  7. New York state officials
  8. San Francisco State University
  9. The Texas A&M University system
  10. Penguin/Puffin Books

‘So to Speak’ podcast: Playwright to stand trial in Germany

CJ Hopkins is an American playwright, novelist, and political satirist. He moved to Germany in 2004. He publishes a self-titled blog on Substack and is the editor of Consent Factory Publishing.

CJ’s most recent book, “The Rise of the New Normal Reich,” draws a parallel between Nazi Germany and the response to the COVID-19 pandemic. In August 2022, it was banned on Amazon in Germany, Austria, and the Netherlands. In the months that followed, CJ was charged by German authorities with violating a section of the German penal code that prohibits “disseminating information, the intention of which is to further the aims of a former National-Socialist organization [the Nazis].” He was recently acquitted, but the prosecutor chose to appeal the decision.

In the coming months, CJ will stand trial — again — for a crime he claims he didn't commit and for which he has already been acquitted.

WATCH: CJ Hopkins compared modern Germany to Nazi Germany. Now he’s standing trial.

Related

**We are launching on Substack this week! Nothing will change for our listeners. It's just another way to support the podcast and FIRE. Premium subscribers will receive a FIRE membership and access to our new monthly "Members Only" Zoom chats, where we will discuss free speech news and happenings at FIRE. Members will also be able to ask Nico and other FIRE staffers questions.**

FIRE on sensitivity readers altering Roald Dahl’s books

First Amendment Watch Q&A with Joshua Matz re: E.J. Carroll’s victory

Joshua Matz
Attorney Joshua Matz

Former Elle Magazine advice columnist E. Jean Carroll has been awarded a total of $88.3 million in damages by two unanimous federal juries in her nearly six-year defamation legal battle against former President Donald Trump.

Carroll accused Trump of sexually assaulting her in late 1995 or early 1996 in a Bergdorf Goodman department store dressing room in her memoir “What Do We Need Men For?: A Modest Proposal.” An excerpt of her memoir was published in New York Magazine’s The Cut in June 2019.

Following the excerpt’s release, Trump denied knowing Carroll and claimed she wasn’t his “type,” prompting Carroll to file a defamation suit in 2019. She filed a second suit in 2022 for defamation and battery under the Adult Survivors Act, which went into effect in November 2022 and provided a one-year window for sexual assault survivors who were 18 years or older at the time of their assault to file civil proceedings against their alleged abusers despite the statute of limitations.

Carroll was awarded $83.3 million in damages in January for the first suit, adding to the $5 million Trump was ordered to pay her in May 2023 for the second suit.

In an interview with First Amendment Watch, Carroll’s attorney, Joshua Matz, who worked on her legal team throughout both proceedings, discussed the competing legal strategies behind the case, the effect of Trump’s presence on the proceedings, and the hope that Carroll’s fight to hold Trump accountable shows other sexual assault survivors that they, too, might seek justice.

Stephen Rohde on Julian Assange

Stephen Rohde
Stephen Rohde

Few Americans are aware that for over a decade the United States government has been engaged in one of the greatest threats to freedom of the press in American history.

On Feb. 20 and 21, the United Kingdom High Court will hold hearings that will decide the fate of investigative journalism as we know it.

Julian Assange launched WikiLeaks in 2006 to publish leaked information exposing corporate and government wrongdoing. In 2010, WikiLeaks published information highly incriminating to the U.S. government, including the shocking “Collateral Murder” video.  It showed a U.S. air crew in Apache helicopters in July 2007 slaughtering a dozen civilians in Iraq. The dead included two Iraqis working for Reuters news agency, contradicting U.S. claims that all the dead were insurgents.

In November  2010, The New York Times, the Guardian, Le Monde, El Pais and Der Spiegel published a series of revelations in cooperation with Wikileaks that made headlines around the globe. “Cable gate,” a set of 251,000 confidential cables from the U.S. State Department, disclosed corruption, diplomatic scandals and spy affairs on an international scale. According to the Times, the documents told “the unvarnished story of how the government makes its biggest decisions, the decisions that cost the country most heavily in lives and money.”

In August 2012, Assange was granted asylum in the Ecuadorian embassy in London based on his fears of political persecution. His fears were justified. In May 2019, the Trump Department of Justice unsealed an indictment against him.  Eventually he was charged with 16 counts under the Espionage Act of 1917 and one count of computer hacking. All told, if convicted, he is facing a sentence of 175 years in prison.

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This article is part of First Amendment News, an editorially independent publication edited by Ronald K. L. Collins and hosted by FIRE as part of our mission to educate the public about First Amendment issues. The opinions expressed are those of the article’s author(s) and may not reflect the opinions of FIRE or Mr. Collins.

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