FAN 200 (First Amendment News) Mary Anne Franks, “The Free Speech Fraternity”
Mary Anne Franks is a professor at the University of Miami School of Law. She is the President and Legislative and Tech Policy Director of the Cyber Civil Rights Initiative, a nonprofit organization dedicated to combating online abuse and discrimination. Professor Franks authored the first model criminal statute on a practice often referred to as “revenge porn,” the unauthorized disclosure of private, sexually explicit images.
If there is one case widely considered to illustrate the American commitment to free speech, it is that of the neo-Nazis in Skokie. In 1978, a federal appellate court ruled that the First Amendment required the town of Skokie, where one in six residents was either a Holocaust survivor or related to one, to allow members of the National Socialist Party of America (NSPA) to march through its streets. Most people familiar with the story know that the neo-Nazi marchers planned to wear Nazi-style uniforms and display swastikas during their demonstration. A lesser-known detail is that they also planned to carry placards bearing various slogans, including “Free Speech for the White Man.”
The sign was a crude provocation, but it was also an apt description of the state of free speech in the United States, and not only in 1976. Since the First Amendment was enacted in 1791 and continuing into the present day, the theory and practice of free speech has been dominated by white men.
The First Amendment, like the rest of the Constitution and the Bill of Rights, was written and enacted by a group of white men who deliberately excluded all women and people of color from participation in the political process. The body tasked with its ultimate interpretation, the Supreme Court, was composed entirely of men until 1981 (exclusively of white men until 1967). To put that in perspective, of the 113 Supreme Court Justices that have served in its 228-year history, all but six have been white men. Of the 500 or so cases that the Supreme Court has heard involving the First Amendment and free speech, all but about 60 were brought by men and all but 38 were litigated by men.
From the Catholic Church to Hollywood, from Silicon Valley to the White House, it has become painfully clear that male-dominated institutions and industries are rife with bias, abuse, exploitation, and corruption. White men’s outsized influence over the creation, interpretation, and application of First Amendment doctrine and practice calls for its own reckoning: an accounting of the harms it has inflicted and a reorientation of free speech priorities.
The free speech questions of our time should focus on how traditional interpretations of the First Amendment have served to silence vulnerable populations and undermine democracy. Among those questions should be how more than two centuries of professed commitment to freedom of speech have co-existed with the systematic censorship of half of the American population — women. At the time the First Amendment was written, the doctrine of “coverture” provided that married women had no independent legal existence apart from their husbands, including no independent right of free speech. Women were formally prevented from exercising the most basic form of political expression – the vote – for more than a century. Long after the 19thAmendment was passed in 1920, women continued to be barred from the political, employment and educational opportunities available to men, resulting in the exclusion of their voices from public spaces, workplaces and schools.
A society committed to free speech should dedicate itself to closing the free speech gender gap.It would acknowledge how multiple forces, including domestic violence, sexual assault, stalking, sexual harassment, rape threats, and “revenge porn,” silence women in multiple places, including workplaces, schools, public streets, online and offline spaces. It would prioritize ongoing threats to speech by and for women, including nondisclosure agreements that prevent women from speaking about sexual assault and harassment, defamation lawsuits used to intimidate rape victims, and gag rules prohibiting women from receiving information about abortion. A true free speech society would take seriously how the threat of male violence has a chilling effect on women’s speech, deterring their full participation in political, economic, and cultural life.
Instead, free speech theory and practice continues to be dominated by white men’s interests. Far from being condemned, denying women’s free speech is often praised, in Orwellian fashion, as the exercise of free speech. White men who attack women, minorities, and other vulnerable groups are made into free speech martyrs.
These men include Alex Jones, the head of a powerful media empire who has harassed the parents of dead children, claimed that Hillary Clinton ran a child sex trafficking ring out of a pizzeria, and stands accused of domestic violence and sexual harassment, as well as Milo Yiannopoulos, Richard Spencer, and Andrew Anglin – a rightwing rogues’ gallery of white men whose free speech primarily consists of attacks on women, racial minorities, and the LGBT community. They also include the white male supremacists who, unlike the neo-Nazis who ultimately called off their march in Skokie (likely out of fear of physical retaliation by the Jewish community), carried out their plans to demonstrate in Charlottesville, Virginia in 2017, leading to the death of a peaceful female protester named Heather Heyer.
These men have many powerful allies, including the ACLU, which calls itself the “largest and oldest civil liberties organization” in the U.S. It was the ACLU that won the NSPA’s right to march in Skokie in 1978, and it was the ACLU that ensured that the “Unite the Right” organizers were allowed to hold their demonstration in a location Charlottesville officials feared would be a public safety hazard. The ACLU also represented Milo Yiannopoulos in a 2015 lawsuit attempting to force the Washington Metropolitan Area Transit Authority to post advertisements for Yiannopoulos’s self-published book.
In a 1989 essay titled The Real ACLU, two ACLU leaders, Mary Ellen Gale and Nadine Strossen, offered this explanation for the organization’s solicitude for angry white men: “Ensuring the free speech rights of anyone, including a racist or misogynist, secures the same rights for everyone else, including an intended victim.” According to the ACLU, to defend white men’s speech is to defend the speech of women and nonwhite men, even or especially when that speech attacks and silences women and nonwhite men. Call it “trickle-down free speech,” or perhaps “all speech matters,” or “we’re all Alex Jones now.”
The ACLU’s view is often expressed as “freedom of speech for the thought we hate.” The principle is derived from Justice Oliver Wendell Holmes’s dissenting opinion in the 1929 case United States v Schwimmer: “if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.’
But what exactly is “the thought we hate”? The civil libertarian view seems to assume that this means sexist, racist, and other speech expressing contempt and hatred for certain groups. But a closer look at the case that birthed the principle of “freedom for the thought we hate” complicates the picture.
Schwimmer is, as Ronald Collins notes, the first Supreme Court free speech case argued by a woman. It is also one of the few free speech cases that was brought by a woman, Rosika Schwimmer. Technically, the case is not about the First Amendment at all, but about statutory interpretation. Schwimmer was a Hungarian-born pacifist whose citizenship application was denied due to her stated refusal to take up arms to defend the country. The majority felt that this refusal indicated that Schwimmer was “not well bound or held by the ties of affection to any nation or government” and thus “liable to be incapable of the attachment for and devotion to the principles of our Constitution that are required of aliens seeking naturalization.” In dissent, Justice Holmes wrote that while Schwimmer’s position “might excite popular prejudice,” it should not be punished on that basis. “The thought we hate” that Holmes sought to defend was a woman’s refusal to comply with the demands of power against her conscience.
Such speech has very little in common with speech supporting white male supremacy. The former challenges power; the latter seeks to entrench it. “Free speech for white men” is not some daring aspiration– it is a description of the status quo. Donald Trump’s sexist and racist speech helped him win the presidency in 2016. A 2017 poll found that more than a third of Americans feel that “America must protect and preserve its White European heritage,” while nearly 40% believe that white people “are currently under attack in this country.” One in ten Americans believes that the country has “gone too far” to achieve gender equality and 40 percent believe that women should be forced to carry pregnancies to term against their will. Racist and sexist views are openly and routinely articulated by political officials, widely broadcast by both traditional and social media outlets, and reflected in outbreaks of physical violence against women and minorities.
In the free speech fraternity, we are indeed all Alex Jones. In a true free speech community, we could all be Rosika Schwimmer.