Mary Anne Franks, “The Cult of the Constitution” (Stanford UP, 2019)

New Books in Law

We Americans are defined by our Constitution and we cherish especially the First and Second Amendments. But like all texts, the Constitution can be read to empower and protect our individual rights, but it can also be used selectively, self-servingly, and in bad faith. And the Constitution guarantees two things: our own personal liberties, unfettered by threats from the government, and equal treatment before the law. So is online harassment, assault weapons in every hand, and hate speech the price we all pay for the freedoms we enjoy? Or is is the price that certain people pay and others don't?

Professor Mary Anne Franks, author of The Cult of the Constitution (Stanford University Press, 2019) is an expert on the First and Second Amendments and the author of several legislative bills that now govern the nonconsensual pictures of intimacy distributed online (also called "revenge porn"). She asks whether our country's faith and belief in the Constitution amounts to something like a cult, where unquestioning belief is expected of the many while a small elite decides which rights matter to whom, and who has to pay the price for other people's liberty. Professor Franks maintains that our commitment to the rule of law is now more important than even before, and that such a commitment requires a critical and intelligent reading of the Constitution, rather than blind faith.

We also discussed why so many white men claim that they are victims of censorship and free speech suppression when internet platforms decline to host them, and why this argument of who is more oppressed ends up evading the tougher questions of how the Amendments work in the real world. Are disputes over the Amendments really solved with more guns, more speech, more internet? Or are there better ways of countering real-world violence, harassment, inequality, and threats?

Uli Baer is a professor at New York University. He is also the host of the excellent podcast "Think About It"

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