Throughline (NPR): "The Right to Free Speech"

Release date: February 10, 2026
Hosts: Rund Abdelfatah & Ramtin Arablouei
Featured guest: Professor Mary Anne Franks (George Washington University Law School)

Episode Overview

This episode of Throughline—part of the special series "America in Pursuit"—traces the complex, often contentious history of the First Amendment right to free speech. The hosts and guest Mary Anne Franks explore the origin of the First Amendment, its ambiguity, its evolution through landmark Supreme Court cases, and the persistent controversies over what counts as protected speech, harm, and hate speech. The episode threads American legal history with contemporary dilemmas, probing why the First Amendment remains both cherished and bewildering.

Key Discussion Points & Insights

The Origins and Ambiguity of the First Amendment

• [03:14–03:40] The First Amendment, ratified in 1791, was part of a bundle of rights designed to address anxieties over centralized power and to differentiate the new democracy from the British monarchy.
• The amendment promises freedom of religion, speech, press, assembly, and petition—but the definitions of these freedoms have always been disputed.
  • Quote, Mary Anne Franks [04:06]:

    "If we look at the actual text of the First Amendment, it protects a bunch of things, namely five things... 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."

• The phrase "the freedom of speech" leaves much room for interpretation; scholars and courts have long debated what "speech" actually means.
  • Quote, Mary Anne Franks [04:54]:

    "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... We don’t really know what they meant by this."

Free Speech vs. Harmful Speech: Early Contradictions

• [05:43–08:14] Within seven years of the Bill of Rights’ ratification, Congress enacted the Alien and Sedition Acts (1798), which criminalized criticism of the government—contradicting the First Amendment nearly from the start.
• The challenge of defining "harmful speech" is as old as the amendment itself and persists today.
  • Quote, Mary Anne Franks [07:42]:

    "The question of what harm is and how we should count it... is in some ways the story of the First Amendment."

  • The founders' concept of protected speech was also exclusionary—enslaved people and women were not included in those protections. The amendment’s reach reflected a society where many were "not being counted."

Legal Landmarks: Redefining Protected Speech

• [09:25–13:31] Landmark Supreme Court cases have refined what counts as protected speech, often in response to changing social contexts.
  • Whitney v. California (1927): Upheld conviction for speech inciting 'clear and imminent danger'.
  • Brandenburg v. Ohio (1969): Reversed a conviction of a KKK leader, introducing the "imminent lawless action" standard, narrowing the government’s ability to punish speech.
    • Quote, Mary Anne Franks [10:15]:

      "What they give you in the Brandenburg case is a different test... now we have a test of imminent lawless action. This is a really speech protective test... It has to happen immediately, and it has to be really likely that that lawlessness is going to happen."

  • Societal context and who sits on the Supreme Court matter a great deal to outcomes.
    • Quote, Mary Anne Franks [12:25]:

      "You've got this interwar period in 1927 where people are just nervous about Communists... By the time you get to the 1960s, you’re at another point of upheaval but it’s going in the opposite direction... The court says no to feminism and racial equality and says yes to the KKK."

Expansion and Contradictions in Modern Free Speech

• [13:31–16:05] After the 1960s, free speech protections expanded to include not just radicals and activists, but also powerful industries and corporations.

  • The First Amendment has often shielded not just dissent, but corporate speech (e.g., tobacco, pornography), led by what Franks calls "the necessary costs of free speech."
  • The protections have often empowered the already powerful, sometimes intimidating minorities and marginalized groups.
    • Quote, Mary Anne Franks [15:33]:

      "What is the effect of violent misogynist speech on women? ... 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... that is galvanizing."

• The ideological associations of the First Amendment have reversed over time:

  • It was first a progressive rallying point, then adopted by the right, especially to bolster corporate and exclusionary interests.
    • Quote, Mary Anne Franks [16:05]:

      "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... then along the way, the 80s and 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 it’s a really powerful tool for corporations..."

The Ongoing Debate: Hate Speech and Free Speech

• [18:04–21:00] "Hate speech" remains a term fraught with contention and little consensus.

  • Our sense of what is "hate" or "harm" is deeply influenced by our ideological positions.

    • Quote, Ramtin Arablouei [18:04]:

      "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... I think a lot of people would agree that that was like kind of close to inciting some kind of hate speech."

  • Franks argues "hate speech" is poorly defined and can mean different things in practice and law; many types of offensive speech are protected, but not all (for example, racial slurs in workplace harassment).

    • Quote, Mary Anne Franks [19:01]:

      "The term hate speech, I think is a particularly unhelpful term... If what we mean by hate speech is comments people find offensive, critical statements... that’s probably protected by the First Amendment... But if we’re talking about things like shouting racial slurs in the workplace... that isn’t actually protected."

    • Judgments about what is "too harmful" for protection are made all the time—defamation, fraud, fighting words, etc. The real issue is how and when lines are drawn, and who draws them.

Notable Quotes and Memorable Moments

• [04:06] Mary Anne Franks:

  "We tend to use the shorthand sometimes and say, well, the First Amendment protects free speech, but... it protects a bunch of things... and even when you just take apart any one of those... it’s incredibly complicated."

• [04:54] Mary Anne Franks:

  "We don’t really know what they meant by this."

• [10:15] Mary Anne Franks:

  "Now we have a test of imminent lawless action. And this is a really speech protective test..."

• [12:25] Mary Anne Franks:

  "The court says no to feminism and racial equality and says yes to the KKK. And that has to be partly due to... the impact of the speech..."

• [15:33] Mary Anne Franks:

  "...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."

• [16:05] Mary Anne Franks:

  "...for long periods of history, the modern First Amendment has been very much identified with leftist progressive causes... but then along the way, the 80s and 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..."

• [19:01] Mary Anne Franks:

  "The term hate speech, I think is a particularly unhelpful term, and that’s because we don’t have an agreed upon definition..."

Important Timestamps

• [03:14] — Reading of the First Amendment text
• [04:06] — The five protected freedoms and their complexity
• [05:43] — The Bill of Rights as a political compromise; Alien and Sedition Acts
• [09:25] — Whitney v. California and the "clear and imminent danger" standard
• [10:15] — Brandenburg v. Ohio and the "imminent lawless action" test
• [13:31] — The spread of First Amendment protections to corporations, civil rights activists, and controversial groups
• [16:05] — Shifts in political identification with the First Amendment
• [18:04] — Discussion of hate speech, subjectivity, and the legal boundaries

Closing Thoughts

The episode reveals that the right to free speech has always been more complicated than its legendary status would suggest. From ambiguous language at the founding to ever-evolving standards of harm and protection, the line between free expression and harmful speech remains fiercely debated. As Mary Anne Franks and the hosts underscore, First Amendment jurisprudence is not simply about legal principle; it’s about shifting politics, social power, and the ever-renewed question of "who is included" when we talk about "free speech."

For full historical context and further exploration, listeners are encouraged to check out Throughline’s extended episode “The Freedom of Speech.”