Fearless Speech

49 Pages Posted: 1 May 2019

See all articles by Mary Anne Franks

Mary Anne Franks

University of Miami School of Law

Date Written: December 15, 2018


The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech. From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private as well as state action, free speech becomes even more of a monopoly and monoculture dominated by the interests of white men. The impoverished and elitist conception of free speech that governs current American legal theory and practice undermines all three values the First Amendment is meant to protect: autonomy, truth, and democracy. This Article proposes that First Amendment theory and practice should be reoriented around ancient Greek concept of parrhesia, or fearless speech. As the philosopher Michel Foucault describes it, the speaker of parrhesia “chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy.” Parrhesia is, in essence, the act of speaking truth to power. The more fearless the speech, the more protection and encouragement it should receive, both from state and private actors; the more reckless the speech, the less protection and encouragement it should receive. The ideal of fearless speech, rather than free speech, is a superior guide for a society with democratic aspirations.

Keywords: first amendment, free speech, parrhesia, Foucault, Skokie, Charlottesville, hate speech, internet, christine blasey ford, kavanaugh, white rose, holocaust, anti-Semitism, misogyny, rape

Suggested Citation

Franks, Mary Anne, Fearless Speech (December 15, 2018). First Amendment Law Review, Vol. 17, No. 294, 2019, University of Miami Legal Studies Research Paper Forthcoming, Available at SSRN: https://ssrn.com/abstract=3363020

Mary Anne Franks (Contact Author)

University of Miami School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States

HOME PAGE: http://www.law.miami.edu/faculty/mary-anne-franks

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