“Aggressively Individualistic”: Miami Law Professor Proposes a “Redo” of the First and Second Amendments

We have been discussing the growing attack on free speech in this country, including a widespread movement in academia to curtail free speech rights. Indeed, this movement largely began on college campuses and spread to social media, politics, and journalism. It is now an article of faith for the left to demand censorship or the regulation of speech in the name of social justice. University of Miami’s Mary Anne Franks has a simple solution, and The Boston Globe wants people to consider it: just gut the First and Second Amendments. That’s right, the problem with the Bill of Rights, according to Franks, is that it is too “aggressively individualistic” so the solution is to “redo” the work of the Framers to be more woke compliant.  All of those pesky constitutional rulings in favor of free speech rights will then fall away and society can move on with social justice unimpeded by constitutional niceties.

Franks is the Michael R. Klein Distinguished Scholar Chair at Miami and the author of The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (Stanford Press, 2019).

The Boston Globe column echoes her long-standing contempt for the first two rights in the Bill of Rights. Her “redo” is enough to put George Mason into a catatonic shock.

The First and Second Amendments tend to be interpreted in aggressively individualistic ways that ignore the reality of conflict among competing rights. This in turn allows the most powerful members of society to reap the benefits of these constitutional rights at the expense of vulnerable groups. Both amendments would be improved by explicitly situating individual rights within the framework of “domestic tranquility” and the “general welfare” set out in the Constitution’s preamble.

Franks would entirely gut the free speech protections under the First Amendment that have long defined this country. She would instead amplify the right of the government to hold people accountable for speech deemed harmful:

“Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses.”

Other freedoms fare little better. Indeed, the amendment is rewritten to guarantee equity over individual rights:

Every person has the right to freedom of expression, association, peaceful assembly, and petition of the government for redress of grievances, consistent with the rights of others to the same and subject to responsibility for abuses. All conflicts of such rights shall be resolved in accordance with the principle of equality and dignity of all persons.

As for the Second Amendment, she would just replace the right to bear arms with a right to abortion and personal autonomy:

All people have the right to bodily autonomy consistent with the right of other people to the same, including the right to defend themselves against unlawful force and the right of self-determination in reproductive matters. The government shall take reasonable measures to protect the health and safety of the public as a whole.

As chilling as the Boston Globe column may be, it does serve a useful purpose. It acknowledges the anti-free speech agenda of many in academia and journalism today. As liberal academics took effective control of faculties and schools, the support for free speech and academic freedom waned. A new orthodoxy took hold that is continuing to build on our campuses. I discuss that trend in my forthcoming law review article, Harm and Hegemony: The Decline of Free Speech in the United States, Harvard Journal of Law and Public Policy (forthcoming).

The writings of Franks and others are enormously popular because they legitimate such orthodoxy and the anti-free speech movement. Most intellectuals have grown weary and impatient with free speech.

What is most striking about the Franks’ proposal is that it is hardly new. Indeed, such a qualified right was made part of the Declaration of the Rights of Man and the Citizen. Article  11 (drafted in part by the Marquis de Lafayette) stated:

The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

The First Amendment was written, as correctly noted by Professor Franks, as a more robust individualistic protection. It was elegant and powerful in its simplicity: “Congress shall make no law . . .  abridging the freedom of speech.”

Indeed, that clarity famously inspired Justice Hugo Black to declare “I take no law abridging to mean no law abridging.”

It is “aggressively individualistic,” as were many of the Framers.  That is precisely why Professor Franks and many in academia want the right extracted from the Constitution. Once this protection is removed by constitutional amendment or judicial interpretation, the real work can begin on recreating a society in a better, government-approved, and government-enforced image.  The “aggressively individualistic” model of the Bill of Rights can be replaced with an “aggressively collective” model of a Bill of Responsibilities and Penalties.

I have long admitted to being a dinosaur on free speech. I support the free speech rights of those who espouse views that I find deeply hurtful and offensive. I still believe that the solution to bad speech is better speech, not censorship or sanctions. The growing wave of speech intolerance on our campuses and in society has left many of us in a shrinking minority. To make maters worse, many professors are too intimidated to speak out. To do so is to risk everything that intellectuals hold dear from publication offers to speaking opportunities to their very academic positions. The result is a generation that is being taught in an echo chamber where free speech is treated as a scourge or tool of oppression.

That is the ultimate irony in all of this. Liberals often lament the McCarthy period for its crackdown on speech and blacklisting of leftist academics and writers.  They have now succeeded in achieving what the right failed to achieve in the 1950s. Faculty and editors are actively supporting modern versions of book-burning with blacklists and bans for those with opposing political views. Columbia Journalism School Dean Steve Coll has denounced the “weaponization” of free speech, which appears to be the use of free speech by those on the right. Through a combination of corporate censorship, government pressure, and media controls, they have succeeded in silencing many who would challenge them.

It was only a matter of time before someone like Professor Franks cut to the chase and called for the First Amendment to be discarded as the final measure of devotion to the cause.