Monday, October 14, 2019

A Tale of Two Cities: Mary Anne Franks’s The Cult of the Constitution

Guest Blogger

For the Symposium on Mary Anne Franks, The Cult of the Constitution (Stanford University Press, 2019).

Leslie Kendrick

Mary Anne Franks’s The Cult of the Constitution opens on August 11-12, 2017, in Charlottesville, Virginia, where I live with my family. Franks’s project is to expose the harms caused by our society’s dual commitments to the First and Second Amendments, and little illustrates those harms so well as the two days when hundreds of white supremacists from at least 39 states converged on Charlottesville, where various of them surrounded and threw lit torches at student counterprotesters, fired a gun into a crowd, beat a beloved local elementary school aide in a parking garage, injured dozens of people, and murdered Heather Heyer.

Guns and speech are not the main story of August 11-12, 2017. That story begins and ends with white supremacy, and focus on other elements must not detract from that. Nevertheless, guns and free speech played important roles. Guns were everywhere on August 12, and their relationship to First Amendment activity was everywhere in commentary after the fact. The white supremacist violence recalled that of the Ku Klux Klan of a century ago, now overlaid with 21st century paramilitary weaponry. Groups carrying assault rifles and wearing militia gear were virtually indistinguishable from the National Guard. In the immediate aftermath, Gov. Terry McAuliffe said the white supremacists “had better equipment than our State Police had.”

Meanwhile, free speech jurisprudence that has been fairly stable for a half century cannot by itself explain why hundreds of Americans in 2017 would march under Confederate and Nazi symbols chanting white supremacist slogans. Yet our free speech practices facilitated this. Most materially, in the days before the event, the City of Charlottesville attempted to shift the rally out of the crowded downtown area to a larger park, but the move was blocked by a federal judge after the rally organizer brought suit with representation from the Virginia ACLU. (After the mass violence of August 12, that representation decision became a matter of national reckoning and ultimately policy change by the ACLU: by August 18, the executive director had announced that the ACLU would no longer represent speakers seeking to demonstrate with loaded weapons.) Our free speech law is not the only cause of what happened in Charlottesville, but it is one.

Speaking of the role of guns and speech in August 11-12, Franks concludes, “Charlottesville is who we are.” She goes on to observe, however, that it is “not all we are.” To illustrate this, she turns to what is, to me, another Charlottesville story. She turns to Khizr Khan, the Muslim-American lawyer and Gold Star father—and Charlottesville resident—who spoke at the 2016 Democratic convention. Mr. Khan and his wife Ghazala lost their son, Captain Humayun Khan, a 27-year old University of Virginia graduate who dreamed of becoming a military lawyer, when he was killed by an IED during Operation Iraqi Freedom. At the convention, addressing the man who would eventually become president, Mr. Khan said, “Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy. In this document, look for the words ‘liberty’ and ‘equal protection of law.’” For Franks, Khan’s stance and his words represent our societal commitment to equality.

Franks argues that our commitments to guns and free speech are in grave tension with our commitment to equality. Through three chapters that make up the heart of the book, Franks argues that that robust implementation of the First and Second Amendment causes harm—and not evenly distributed harm, but harm that falls disproportionately on the marginalized. In the context of guns, harms fall on women and nonwhite men who are victims of gun violence while not being treated as beneficiaries of Second Amendment protections. (Franks at 89). In the context of speech, “the primary targets of silencing speech—harassment, threats, genocidal rhetoric, hate speech, revenge porn—are women, nonwhite men, and sexual minorities.” (Franks at 116). Franks focuses particularly on advocacy groups such as the NRA and the ACLU and argues that such groups advocate for First and Second Amendment rights in more robust terms than either right actually warrants. The result is an implementation of liberty that undermines equality.

Franks advocates an “honest constitutional accounting” and a constitutional culture that focuses on “those who have suffered the most severe constitutional deprivations” (203). How does this look? “It looks like the rejection of selective fidelity to constitutional rights. It looks like denying attention to those who claim to honor the right to bear arms but look the other way when black men are shot dead for exercising them. It looks like demanding that those who defend the right of free speech respond to the silencing of women” (203-4).

Franks provides vital attention to the disparate impact of our First and Second Amendment commitments on marginalized groups. As I’ve said in another context, free speech is not free, and we do not split the check evenly. The costs of our commitments should not be minimized or sanitized, and Franks does necessary work in exposing them.

I am curious for more details on Franks’s constitutional accounting. There are various ongoing conversations about the relationship between the First Amendment and equality, and more from Franks would enrich this picture. Franks brings to her endeavor a powerful combination of clear-eyed realism and unflagging advocacy for something better. These skills, I would argue, contributed to the drafting of the first model criminal statute on revenge porn and its adoption by multiple states. Given her extensive experience with legal reform, what particular changes would she advocate and prioritize? And how much should be driven by pragmatics and concerns about governmental abuse? Concerns about the likely tendencies of democratic majorities are a large part of why we have the speech jurisprudence we do, including, for instance, Justice Thurgood Marshall arguing that government neutrality toward ideas is an outgrowth of the Equal Protection Clause. These questions do not admit of easy answers, but any answer of Franks would be incisive and thought provoking.

I am also curious about Franks’s view of Fred Schauer’s argument in Uncoupling Free Speech that we are wrong to conclude that “because a price must be paid for free speech, it must be the victims of harmful speech who are to pay it” (Schauer, Uncoupling Free Speech, 92 Columbia L. Rev. 1321, 1322 (1992).) Schauer urged more consideration of the uneven distribution of the harms of free speech, and he proposed a thought experiment. What if, instead of telling defamation victims they are out of luck, we compensated them from a victims’ fund, collected from the public? The media would not bear a cost that might chill protected speech, and the victims would receive compensation for their injury. Schauer raised the possibility of the same approach for other speech-related harms, including those caused by hate speech and pornography. I am interested in what Franks would say.

My questions here have mostly been about what steps Franks recommends in response to the problems she sees. The fact remains, however, that simply by discussing the costs of our constitutional commitments, she is furthering vital conversation.

Because know it or not, like Mr. Khan and me, we are all living in Charlottesville.

Leslie Kedrick is Vice-Dean and David H. Ibbeken '71 Research Professor of Law at the University of Virginia. You can reach her by e-mail at kendrick at

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