Abstract
Professor Mary Anne Franks’ book Fearless Speech: Breaking Free from the First Amendment purports to offer a bold reimagining of free speech doctrine that “takes power, harm, and history seriously.” However, as this review essay demonstrates, Fearless Speech neither breaks free from familiar critiques of the First Amendment nor engages seriously with the historical and doctrinal record. The review illustrates how Professor Franks’ claim that “First Amendment norms have perpetuated and maintained a neo-Confederate ideology of white male supremacy” is entirely unsupported and is based on a series of strawman arguments that mischaracterize both the historical record and free speech advocacy. Far from taking history seriously, Fearless Speech simply ignores events and legal developments that gave life to modern free speech jurisprudence and that contradict Franks’ thesis. Fearless Speech does not just overlook cases brought by civil rights, women’s rights, and gay rights advocates, it mainly recycles arguments long discredited since the days of Anthony Comstock and the “bad tendency” test. Although Fearless Speech promises a bold new approach to free speech jurisprudence, Franks’ framing of “fearless” versus “reckless” speech provides no coherent theory of what the First Amendment should and should not protect. Professor Franks does make some suggestions for “fixing” the First Amendment, but like the rest of her analysis, Franks’ proposed solutions are neither fully explained nor their implications explored. The absence of a coherent theory of the First Amendment makes it difficult for Franks to develop policy prescriptions that would serve her professed goal of promoting “fearless speech” or even to field proposals that make any sense. As a consequence, the policy prescriptions in Fearless Speech range from incoherent to disastrous. Far from offering a “fearless” vision of free expression, Franks’ proposals—rooted in viewpoint discrimination and revived bad tendency reasoning—would erode the very principles that have enabled fearless speech to thrive.
Recommended Citation
Robert Corn-Revere,
Fearless Speech Ignores History to Make a Point,
91 Brook. L. Rev.
123
(2025).
Available at:
https://brooklynworks.brooklaw.edu/blr/vol91/iss1/3