"Fearless Speech" and First Amendment Spark Engaging Discussion at Trager Colloquium

A new book by Dr. Mary Anne Franks titled Fearless Speech: Breaking Free from the First Amendment, inspired a lively discussion among scholars who delved into the First Amendment, its role in protecting free speech, and how far that protection extends at the Trager Colloquium Thursday night. 

The colloquium was presented as part of the David G. Trager Public Policy Lecture Series, which honors the late Hon. David G. Trager, Senior Judge, U.S. District Court for the Eastern District of New York, who served as the dean of Brooklyn Law School from 1983 to 1993.  

 “We're so delighted that we can reinaugurate the Trager series for the first time since Covid, and are so grateful for the continued support of the many supporters and benefactors of the Trager Fund who make this possible,” Dean David Meyer said, specifically thanking Roberta Weisbrod, Trager’s wife, who attended the program. “What also makes this event very special is its especially compelling and timely topic, which is free speech and the role of the First Amendment in protecting speech. That, of course, has always been a vexing, complex topic, but never more so than today.”  

The evening featured a powerhouse group of First Amendment scholars. Franks is the Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law at George Washington University Law School, and the president and legislative and tech policy director of the Cyber Civil Rights Initiative. Joining Franks as a featured speaker was First Amendment advocate and scholar Robert Corn-Revere, chief counsel of the Foundation for Individual Rights and Expression (FIRE). Additional discussants included Ron Collins, former Harold S. Shefelman Scholar, University of Washington Law School, and current editor in chief of the blog First Amendment News; and Sarah C. Haan, Class of 1958 Uncas and Anne McThenia Professor of Law, Washington and Lee University School of Law, who will be joining Brooklyn Law School in July. The program was moderated by the school’s own constitutional law scholars, Stanley A. August Professor of Law William Araiza and Professor Joel Gora, who worked as an attorney with the American Civil Liberties Union for almost a decade.   

In the book, Franks makes the argument that the First Amendment has limitations and that there are examples throughout history that show it has done little to protect dissenting speech made by marginalized members of American society. She distinguishes these examples of unprotected “fearless speech,” from the harms caused by “reckless speech,” which has been protected.   

One of the examples Franks cites of fearless speech is Ida B. Wells, an anti-lynching activist and journalist who wrote an article about a man who was lynched, highlighting the racism behind it. “What she was saying, quite openly, was that the ‘proof’ that was presented that this Black person was being a predator towards white women, actually showed there was a consensual relationship between the races, and that was the thing that white men really could not stand,” Franks said. After the piece was published, Wells’ printing press was burned down by a white mob. “No First Amendment rights. Nothing is happening in that moment that allowed her to use the law to help her,” Franks said. She also asserted that suffragists, civil rights protesters, and indigenous Americans, among others, were throughout history not protected by the First Amendment. 

As an example of reckless speech that causes harm, Franks cited the 1977 case National Socialist Party of America v. Village of Skokie which involved a neo-Nazi group whose permit to march through the village of Skokie, Illinois, home to Holocaust survivors, was upheld by the U.S. Supreme Court based on free speech. “And these neo-Nazis don't just want to come and say, ‘Hey, we have some ideas.’ They don't. They want to march in the middle of this town, and they want to wear SS-like uniforms, and they want to have swastikas, and they want to terrorize that specific population,” Franks said. “If we're saying that we are going to have a government that will not prohibit this kind of speech, that doesn't mean we have to promote it. And what is it other than promotion to basically have the city shut down and dedicate its police forces for the day to protect this group and their speech?”  

While she does not advocate simply banning speech “that we don’t like,” Franks says she is an advocate for asking principled questions about whether speech can cause harm, and making “fair and principled decisions about what needs to be regulated.”  

In response to the book, Corn-Revere said he agreed with Franks on some points, including that there are examples of fearless speech that were not protected, but he had several criticisms, including Frank’s assertion that the First Amendment was, from the start and continues to be, a “tool of white supremacy.”   

After the (Justice Louis) Brandeis concurrence in the 1927 U.S. Supreme Court case Whitney v. California, courts began to apply the First Amendment, and “then it was the disenfranchised groups that were the first to be protected,” Corn-Revere said. There were multiple Supreme Court cases that provide evidence of that, including Stromberg v. California, which upheld the free speech rights of a Young Communist League member who had been prosecuted in California for flying a red flag in favor of communism, and Near v. Minnesota, in which the court ruled that prior restraints on publication violated the First Amendment. 

Corn-Revere said he also took issue with certain concepts in the book he called fallacies, such as “to protect speech is to endorse it” and “bad people defend bad speech,” which implies guilt by association.  

“The third problem I have with the book is that it makes the claim that there's no such thing as a cancel culture,” Corn-Revere said. “Now this is dismissed in the book as cultural handwringing or, quote, a shell game designed to distract from the Republicans neo-Confederate agenda by hyper-focusing on the supposedly intolerant acts of private individuals while overlooking the systemic governmental restrictions on the speech of everyone else.” 

Cancel culture does exist and has been politicized, he contended. “It comes from both the left and the right, and it is wrong as a violation of a culture of free expression,” Corn-Revere said.   

In response to the book, Haan said she sees parallels with what Franks writes about and issues that relate to business law, which she will teach at Brooklyn Law.  

“You’re trying to refocus us on power, something that has not been centered in First Amendment law in the past, so that the core contribution of this book is the idea that we can and should distinguish between reckless speech and fearless speech,” Haan said. “So reckless speech is speech that supports existing power hierarchies. It serves power, whereas fearless speech challenges power. And we might think of it as the actual practice of democracy, when you’re challenging power.” 

Collins, who fielded questions from the audience and shared questions the two key speakers asked each other, said he was happy that Franks had written the book, even if he had disagreements with it.  

“The First Amendment, at the end of the day, is better off when we have, if you will, a variety of voices,” he said. 

Photos of the event are here.