B (3:12)

December 15, 1791.

E (3:14)

First Amendment to the Constitution of the United States.

F (3:19)

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, which or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.

B (3:40)

While those words may sound simple enough, they've been at the center of political and cultural debates in the United States for centuries, especially that little clause about the freedom of speech. To understand the power and confusion behind those words, we sat down with George Washington University law professor and author of Fearless Breaking Free from the First Amendment, Mary Ann Franks.

C (4:06)

We tend to use the shorthand sometimes and say, well, the First Amendment protects free speech, but if we look at the actual text of the First Amendment, it protects a bunch of things, namely five things. So it is about the freedom of religion, it's about freedom of the press, it's about the freedom of assembly, it's about the freedom to petition your government, and it's about the freedom of speech. So it does all of these things. And even when you just take apart any one of those, just take the free speech part, it's incredibly complicated. But what the text actually says is, congress shall make no law abridging the freedom of speech. But if we just look at those words, that doesn't tell us much about what the modern First Amendment looks like.

E (4:47)

And like, maybe the most fundamental thing that it doesn't help us answer is what is speech?

C (4:54)

Exactly, and not just what is speech. But, you know, the Amendment could have been written to say, congress shall make no law that infringes upon speech. But they actually said the freedom of speech. The debate among many scholars is, well, when you say the freedom of speech, it seems to indicate something a bit more abstract, that the freedom of speech meant something very specific, perhaps to the founders when they were thinking about freedom of conscience and the ability to discuss certain types of criticisms of the government together. So it's a little bit of a black box. We don't really know what they meant by this.

B (5:28)

And that's still true today. We're still fighting over what exactly protected by freedom of speech means. And according to Marianne, that's sort of the underlying story of the First Amendment. It's always been complicated.

C (5:43)

The whole thing was controversial to start with, Right, because the Constitution was controversial to start with. And the Bill of Rights, which include the First Amendment, were this kind of compromise to get people who were really nervous about the Constitution and the centralized government to come on board because it was meant to offer some reassurances about how this doesn't. We're not just going to repeat British monarchy. And so you have this package of rights of 1791 that it gets ratified, and the First Amendment just happens to be the first because the first two that were originally proposed don't get ratified. And seven years later, 1798, Congress literally makes a law abridging the freedom of speech by passing what are known as the alien and Sedition acts that broadly prohibit the ability of Americans to criticize the government. There was always that debate about, well, what about really harmful speech? What about speech that jeopardizes national security? What about speech that tries to criticize this really new fledgling government that we're trying to hold onto and establish a democracy around?

E (6:45)

You use the phrase harmful speech to refer to like speech against the government or things like in that era, it seems were they were maybe hyper vigilant about particularly like speech against the government criticisms as they're trying to form, as you said, like this, like new fledgling nation and everything. But I'm just struck by the fact that just as confusing or complicated as the freedom of speeches to define harmful speech, even then and for sure continuing to today is a very hard thing to define. And I'm saying harmful speech, but I guess some people might also lump in like hate speech with that right. So how much do you see that sort of tension over what harmful speech is as being a kind of driving factor in the story of the First Amendment?

C (7:42)

The question of what harm is and how we should count it, I think is in some ways the story of the First Amendment. Because really, what you see from this abstract protection for the freedom of speech immediately becomes a question of practical application. That is, okay, so we want to broadly protect people's ability to say things, but we also recognize that saying things can lead to people getting hurt, and it can lead to jeopardizing national security. It can lead to all kinds of public disorder. So throughout the history of the First Amendment, you see these battles over, okay, is this so harmful that we have to make an exclusion or an exception for the protections? Is this kind of speech so much like conduct that it shouldn't even be considered speech at all? Is another kind of debate. And whose harms do we actually care about? And that, especially in the modern age of, well, who are we counting? Because one thing that is clear at the moment of the founding and the ratification of the Constitution and the Bill of Rights, is who's not being counted. The Constitution is quite clear about how we're not counting vast amounts of society that is enslaved. People don't have those rights. The Bill of Rights is not for them. And even though it's not explicit in the Constitution or in the Bill of Rights, that also goes for women of all races, because women weren't considered to have the same status as men. Interests were considered to be represented by their husbands or their fathers. And there was really no conception of, well, what would it mean for the freedom of speech to apply to everyone?

B (9:25)

That question of what it means when free speech applies to everyone and what exactly the differences between dangerous and not dangerous speech has been the source of court case after court case since the adoption of the First Amendment. One of those cases was the Supreme Court case Whitney v. California in 1927. This case, which centered around Anita Whitney, a founding member of the Communist Party, set the precedent that free speech is not protected if it poses clear and imminent danger. And in so doing, it opened up a new line of inquiry. What's considered dangerous speech. Years later, in the late 1960s, that question was put to the test with the supreme court case Brandenburg vs Ohio.

C (10:15)

Clarence Brandenburg is a KKK leader. He is a KKK leader who calls up a reporter and says, you should come cover this rally that I'm going to be speaking at, and you should bring a cameraman and you should film everything that happens at this rally. And at this rally, he's in full Klan regalia speaking to all of these other hooded individuals and says, if the white race continues to be oppressed by the president and Congress and the Supreme Court, we may have to take. And he calls it revengeance. During that rally, they then burn across and they're carrying weapons. They're using anti black, anti Semitic slurs. It's pretty clear that it's meant to be threatening and intimidating. And the broadcast of the speech is not just played on local news, but it makes national news, so everybody really has the chance to hear it. He's convicted for the speech under the Ohio statute, and it goes up to the Supreme Court, and you get the opposite result. That is, his conviction is overturned because the court says, oh, we were wrong in Whitney. So what they give you in the Brandenburg case is a different test. No more clear and present danger. Definitely no bad tendency. Now we have a test of imminent lawless action. And this is a really speech protective test, at least in one sense. It says you can't prohibit people's speech unless the speaker intended really to incite imminent lawless. Action that is pretty much has to happen immediately, and it has to be really likely that that lawlessness is going to happen. So it's a really, really narrow view of what you're allowed to prohibit under the first AM.

E (11:57)

How much do you chalk this up to what's going on in the country in each of these moments? One happening, I guess, soon around the World War I era. Right. And another happening at the tail end of the civil rights era. How much is it relating to what's going on in society more broadly at those times, in your opinion? And how much is it relating to also? Like, who's actually making up the court at each of those moments?

C (12:25)

I think both of those things are very important to the way these cases come out. So you've got this interwar period in 1927 where people are just nervous about Communists, they're nervous about the kind of social upheaval, they're nervous about change. And then by the time you get to the 1960s, you're at another point of upheaval, but it's going in the opposite direction, at least according to the speaker who's now at issue, who is trying to attack other people. And the court says that it has a principled reason for doing so. But one kind of blunt way of looking at what happened here is that, well, the Court says no to feminism and racial equality and says yes to the kkk. And that has to be partly due to what they're perceiving the value of the speech to be and perceiving the identification of the speakers and how much it matters and what the impact of the speech is. How much of it matters.

F (13:17)

The KKK rally is at the heart of the Brandenburg Test, which essentially protects speech unless it's likely to incite people to engage in imminent lawless action. And that's still the test we use today.

C (13:31)

When we think about what the Brandenburg Test has done for free speech or the understanding of free speech, that it's not just the cases that actually come up. Because if you look at the history of the cases that go before the Court that are trying to figure out what the First Amendment means and what its boundaries are, there are cases that come out in favor of radical speakers, radical speakers who are not trying to endanger other people, but are, in fact arguing for the opposite. So you do get good rulings that protect civil rights activists, and you do get rulings that are protecting, in some cases, people who are advocating for workers rights. You get some of that. But what you also get in the 70s, the 80s and 90s. So as we're moving towards the Internet age is increasingly what you get is more and more First Amendment protections being given to corporations, to really powerful industries. So the big cases that come out are also benefiting pornographers and the tobacco industry, and they're all making claims about free speech to say, look, our speech might be harmful, it might be offensive, it might be causing public disorder, but it's really important for that reason. And you have to accept those as the necessary costs of free speech. And so what is the effect of violent misogynist speech on women? What is the effect of violent racist rhetoric on the people, on Jews and black individuals who are usually the targets of those kinds of screeds? The kkk, the neo Nazis, those kinds of speech acts that are getting protected in such a prominent way by these court cases? What does it mean in terms of who feels comfortable to speak? Because once again, if the court is reinforcing this idea that when you're a neo Nazi who's making these anti Semitic slurs, not only should you not be punished, but you in fact are a free speech hero of a sort that doesn't just have legal power, that has social power, that is galvanizing, that is sort of saying to these groups, you are included and you should proceed with the speech as opposed to marginalize the speech.

E (15:33)

I could also see a world in which you read it as, yeah, that's protecting arguably potentially harmful speech, but it's also a protection for people on the left who maybe would have been silenced like Whitney in the past. And so that's where I feel this getting complicated. Because in a way, isn't it good, isn't that ruling good to open up the boundaries of what the government is allowed to kind of regulate?

C (16:05)

In terms of speech, it is extremely complicated. And this is why the politics around First Amendment doctrine are so incredibly confusing in a way, because for long periods of history, the modern First Amendment has been very much identified with leftist progressive causes, the civil libertarian movement, ACLU and others. They're broadly considered to be on the kind of progressive side and that they're pushing for more rights as opposed to trying to roll back. And for that period of time, the First Amendment was looked at with some disdain by Republicans and conservatives who thought, oh, you're protecting all kinds of bad speech. But then along the way, the 80s and the 90s, there's a kind of weird convergence. Suddenly the right decides that it does like the First Amendment after all, partly because it realizes that it's a really powerful tool for corporations to say, well, powerful money making enterprises can also use the First Amendment not only to defend their profits, but also to defend excluding people. And as we've seen, the far right become much more open in our own time about who they want to exclude now they're much more sympathetic to the view, the kind of Brandenburgian view that is not just a abstract principle of protecting harmful speech, but it's quite clear that they like the result. And the result is often going to be the intimidation of racial minorities, sexual minorities, and they're using that. And that makes a lot of progressives uncomfortable. But it also brings most of them to say, well, that is just sort of how we have to roll, that if you want to protect civil rights activists, you also have to protect the kkk. The question though is, well, why are those two things just two sides of the same coin? If part of what your speech is, is to fundamentally deny that certain people deserve rights, then you are not engaging in speech that is compatible with democracy. Forget about offensiveness or any of the rest. That's just incompatible with the values we profess to have.

F (18:04)

And ahead of this interview, I was looking up a CNN commentator on air said to a Republican commentator that white men like you are the greatest terrorist threat in this country. And what it made me think was, I don't think a lot of people would identify that as hate speech. But if, you know, they had said, like, substitute another race or another identity group in that and called them the biggest terrorist threat in this country, or if someone had called me and said, you know, Iranian men or Muslim men, like you're the biggest terrorist, I think a lot of people would agree that that was like kind of close to inciting some kind of hate speech. What it makes me think is in this divided country, politically divided country we live in, how we define hate speech often comes from whatever ideological point of view we're coming from. And so it's getting really difficult, I think, for many people. And I think I'm conveying the view of a lot of people in the public that are kind of like, what does this even mean? Why does the First Amendment even apply if this. We're just applying it subjectively in this way?

C (19:01)

It is exactly at the heart of this controversy. What does it mean if it's just about free speech for me and not for thee? Right, but I think there's a couple of questions to raise about that. Which one is the term hate speech, I think is a particularly unhelpful term, and that's because we don't have an agreed upon definition of what it is. There's a tendency for a certain segment of society to say hate speech is not protected by the First Amendment, and there's an equally vociferous part of society that says it is protected by the First Amendment. They can actually both be right and wrong because we don't we're not necessarily talking about the same things. If what we mean by hate speech is comments that people find offensive, critical statements, et cetera, yeah, that's probably protected by the First Amendment because the First Amendment goes that far. But if we're talking about things like shouting racial slurs in the workplace to your colleague, that isn't actually protected. So we have to be much more specific about what we mean. And I think the term hate speech can be is really too ill defined to be useful as a concept here. But to your point about that's the concern, right, that if the government is in charge of deciding what is offensive or hateful or harmful, isn't it just going to be whatever the person in power likes or doesn't like? And I think that is exactly the concern. The issue, I think, is we have presumed that that's not what's been going on this whole time where we have been claiming to defend the First Amendment. We have this vision sometimes or this view that the Supreme Court has protected most speech. But think about all the things that they say are not actually protected. Defamation, obscenity, fighting words, fraud, child pornography. There are all of these things where we've made some kind of judgment that that speech is too harmful. So it's not a question of if we're going to choose sometimes that such speech is more harmful. It's about when we choose and how principled are we when we choose it.

B (21:00)

That's it for this week's episode of America in Pursuit from NPR and Throughline. If you want to hear the entire Throughline episode about how the First Amendment has been debated and reimagined at different moments in American history, check out Throughline's full length episode called the Freedom of Speech. And make sure to join us next Tuesday when we start to look at the country's cracks and contradictions and how a new nation dreaming of life, liberty and happiness, also relied on slave labor to prop up its economic system.

G (21:34)

Perhaps the most revealing aspect of the way slave patrols functioned is that they were explicit in their design to empower the entire white population, not just with police power, but with the duty to police the comings and goings and movements.

B (21:53)

Of black people the story of how slave patrols reinforced the country's racial hierarchy and laid the foundation of modern policing. That's next week. Don't miss it. This episode was produced by Kiana Mogodam and edited by Christina Kim, with help from the Throughline production team. Music as always by Ramti Nadablooi and his band Drop Electric. Special thanks to Julie Cain, Irene Noguchi, Beth Donovan, Casey minor and Lindsay McKenna. We're your hosts, Rund Abdelfattah and Ramtin Arablouei.

F (22:30)

Thank you for listening.

D (22:43)

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