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

Bill of RightsWe 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.

 

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

  1. Jonathan Turley, without a Constitutional Amendment, it would be an illegitimate, even illegal, practice to infringe upon the right of free speech or any other rights protected under the First Amendment.

  2. The most likely instigator of the Jan 6 episode seems to be Ray Epps, who was among the first 20 to be listed by the FBI but later removed. Information has been withheld by those that want to punish Trump supporters. Therefore, one can only conclude that the violence at the capital was perpetrated by a group other than Trump supporters and likely assisted by people in the government.

    Copy of the site https://www.fbi.gov/wanted/capitol-violence before Ray Epps’s picture was removed following. Lots of information detailing many of the events. Have to scroll down a bit.

    https://www.revolver.news/2021/10/meet-ray-epps-the-fed-protected-provocateur-who-appears-to-have-led-the-very-first-1-6-attack-on-the-u-s-capitol/

    “Reward Offered As FBI, DC Police Seek Public’s Help To Identify Pro-Trump Rioters Who Rushed U.S. Capitol” CBS Baltimore. I wonder if they paid out the award to whoever identified Epps, or did his handler get the proceeds?

  3. OT: The midterms are ten months away, but the Republicans will likely control the House Judiciary Committee. I am waiting for that to happen and the investigations that will likely follow. Below are some thoughts of Kevin McCarthy. I want to add others, but high on my list is investigating everything withheld by Adam Schiff and his inappropriate actions. Then I would investigate all members with significant relationships with our enemies, especially China.

    “The leak of a vast cache of IRS documents about billionaires to ProPublica;
    National Security Agency’s possible monitoring or unmasking of journalists like Fox News host Tucker Carlson;
    The record surge of illegal aliens crossing the southern U.S. border;
    The bungled withdrawal of U.S. troops from Afghanistan, including the stranding of Americans and Afghan supporters;
    The controversial JEDI cloud-computing contract at the Pentagon that pits Microsoft against Jeff Bezos’ Amazon Cloud Services.”

  4. Russia wants NATO to obey unwritten agreements, while Russia violates written agreements, such as the Budapest Memorandum. What a joke. God should send an asteroid towards Moscow.

  5. Please do feed the Trolls….ignore them please.

    Start with Silberman, Fish Wings, Natacha, and every Anonymous post

    If they wish to post….at least demand their post add to the discussion and not detract from it.

    Perhaps in time they shall wither on the vine and go away or decide to be polite company and offer something worthwhile finally.

  6. E.M.,

    It’s too bad you could not set your speech to stirring music! You said:

    “I only pray that the center holds and we the people can regain our nation from the grip of those who constantly plot its demise. You can have your opinion but I can also have mine.”

    I’m a Never Trumper. Does that mean I’m not among “we the people” in your opinion?

    1. Jeff,
      I think a bit of soft music would nicely set the tone. Angle by Sarah McLachlan?

      I am aware that you are a Never Trumper. You have made that abundantly clear. I have also gathered also from your comments that you are not a hard left socialist or Marxist either. So, to answer your question in my opinion, of course you are among “we the people.”

  7. Kenb5602 says:

    “I don’t wnt to censor Jeff’s views. I just want the cpability to “walk away” from his views and mute them so I don’t have to scroll thru them to get to on-topic content.”

    I agree with you Ken! That’s all I have ever argued here! As private citizens we have the power to discriminate against speech which we find intolerable. To ignore it, to shame the speaker, to ostracize him from civil society, and to sue him if he commits defamation.

    Turley does not disagree with shaming an odious speaker, but any additional social or employment consequences (apart from liability to defamation) is an abridgment of the speaker’s First Amendment right. I disagree. All forms of social outcasting are an exercise of the listeners’ free speech.

    What Turley wants is a *safe zone* for hateful speech. The First Amendment only guarantees no *governmental* interference (with a few exceptions); it says nothing about citizens taking matters in their own hands.

    I would NOT protest if Turley banned me from his blog. I have no right to be here. However, he invites ALL CIVIL contributions.
    So be it. I’m grateful.

    I criticize Turley only because he does NOT practice what he preaches. He will not criticize Fox News for banning *civil* Trumpist lawyers and silencing *civil* Lou Dobbs. I understand that Fox is defending two billion dollar defamation lawsuits, but I don’t recall Turley ever claiming that a company should be able to censor someone on that basis. Turley is a free speech originalist. If we take Turley at his word, these Trumpist lawyers should be presented on Fox, and Turley could be called upon to dispute their election lies. Would not Turley’s good speech be sufficient to inoculate the lawyer’s bad speech?

    I ask you?

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