Leslie Kendrick
Mary Anne Franks’s The Cult of the Constitution opens on August 11-12, 2017, inward Charlottesville, Virginia, where I alive amongst my family. Franks’s projection is to discover the harms caused yesteryear our society’s dual commitments to the First too Second Amendments, too petty illustrates those harms too hence good equally the 2 days when hundreds of white supremacists from at to the lowest degree 39 states converged on Charlottesville, where diverse of them surrounded too threw lit torches at pupil counterprotesters, fired a gun into a crowd, beat a love local uncomplicated schoolhouse aide inward a parking garage, injured dozens of people, too murdered Heather Heyer.
Guns too oral communication are non the top dog floor of August 11-12, 2017. That floor begins too ends amongst white supremacy, too focus on other elements must non detract from that. Nevertheless, guns too costless oral communication played of import roles. Guns were everywhere on August 12, too their human relationship to First Amendment activity was everywhere inward commentary afterward the fact. The white supremacist violence recalled that of the Ku Klux Klan of a century ago, straightaway overlaid amongst 21st century paramilitary weaponry. Groups carrying onrush rifles too wearing militia gear were virtually indistinguishable from the National Guard. In the immediate aftermath, Gov. Terry McAuliffe said the white supremacists “had ameliorate equipment than our State Police had.”
Meanwhile, costless oral communication jurisprudence that has been fairly stable for a one-half century cannot yesteryear itself explicate why hundreds of Americans inward 2017 would march nether Confederate too Nazi symbols chanting white supremacist slogans. Yet our costless oral communication practices facilitated this. Most materially, inward the days earlier the event, the City of Charlottesville attempted to shift the rally out of the crowded downtown expanse to a larger park, but the motility was blocked yesteryear a federal gauge afterward the rally organizer brought adapt amongst representation from the Virginia ACLU. (After the volume violence of August 12, that representation conclusion became a affair of national reckoning too ultimately policy alter yesteryear the ACLU: yesteryear August 18, the executive manager had announced that the ACLU would no longer stand upward for speakers seeking to demonstrate amongst loaded weapons.) Our costless oral communication police pull is non the solely drive of what happened inward Charlottesville, but it is one.
Speaking of the purpose of guns too oral communication inward August 11-12, Franks concludes, “Charlottesville is who nosotros are.” She goes on to observe, however, that it is “not all nosotros are.” To illustrate this, she turns to what is, to me, some other Charlottesville story. She turns to Khizr Khan, the Muslim-American lawyer too Gold Star father—and Charlottesville resident—who spoke at the 2016 Democratic convention. Mr. Khan too his married adult woman Ghazala lost their son, Captain Humayun Khan, a 27-year one-time University of Virginia graduate who dreamed of becoming a military machine lawyer, when he was killed yesteryear an IED during Operation Iraqi Freedom. At the convention, addressing the human who would eventually larn out president, Mr. Khan said, “Let me enquire you: Have yous fifty-fifty read the U.S.A. Constitution? I volition gladly lend yous my copy. In this document, expect for the words ‘liberty’ too ‘equal protection of law.’” For Franks, Khan’s opinion too his words stand upward for our societal commitment to equality.
Franks argues that our commitments to guns too costless oral communication are inward grave tension amongst our commitment to equality. Through 3 chapters that brand upward the middle of the book, Franks argues that that robust implementation of the First too Second Amendment causes harm—and non evenly distributed harm, but harm that falls disproportionately on the marginalized. In the context of guns, harms autumn on women too nonwhite men who are victims of gun violence piece non beingness treated equally beneficiaries of Second Amendment protections. (Franks at 89). In the context of speech, “the primary targets of silencing speech—harassment, threats, genocidal rhetoric, loathe speech, revenge porn—are women, nonwhite men, too sexual minorities.” (Franks at 116). Franks focuses peculiarly on advocacy groups such equally the NRA too the ACLU too argues that such groups advocate for First too Second Amendment rights inward to a greater extent than robust price than either correct truly warrants. The upshot is an implementation of freedom that undermines equality.
Franks advocates an “honest constitutional accounting” too a constitutional civilization that focuses on “those who accept suffered the most severe constitutional deprivations” (203). How does this look? “It looks similar the rejection of selective fidelity to constitutional rights. It looks similar denying attending to those who claim to accolade the correct to behaviour arms but expect the other means when dark men are shot dead for exercising them. It looks similar demanding that those who defend the correct of costless oral communication respond to the silencing of women” (203-4).
Franks provides vital attending to the disparate touching on of our First too Second Amendment commitments on marginalized groups. As I’ve said inward some other context, costless oral communication is non free, too nosotros produce non split upward the banking firm fit evenly. The costs of our commitments should non live minimized or sanitized, too Franks does necessary run inward exposing them.
I am curious for to a greater extent than details on Franks’s constitutional accounting. There are various ongoing conversations almost the human relationship betwixt the First Amendment too equality, too to a greater extent than from Franks would enrich this picture. Franks brings to her endeavor a powerful combination of clear-eyed realism too unflagging advocacy for something better. These skills, I would argue, contributed to the drafting of the start model criminal statute on revenge porn too its adoption yesteryear multiple states. Given her extensive sense amongst legal reform, what especial changes would she advocate too prioritize? And how much should live driven yesteryear pragmatics too concerns almost governmental abuse? Concerns almost the probable tendencies of democratic majorities are a large purpose of why nosotros accept the oral communication jurisprudence nosotros do, including, for instance, Justice Thurgood Marshall arguing that authorities neutrality toward ideas is an outgrowth of the Equal Protection Clause. These questions produce non acknowledge of slowly answers, but whatsoever reply of Franks would live incisive too thought provoking.
I am too curious almost Franks’s sentiment of Fred Schauer’s argument inward Uncoupling Free Speech that nosotros are incorrect to conclude that “because a cost must live paid for costless speech, it must live the victims of harmful oral communication who are to pay it” (Schauer, Uncoupling Free Speech, 92 Columbia L. Rev. 1321, 1322 (1992).) Schauer urged to a greater extent than consideration of the uneven distribution of the harms of costless speech, too he proposed a thought experiment. What if, instead of telling defamation victims they are out of luck, nosotros compensated them from a victims’ fund, collected from the public? The media would non behaviour a cost that mightiness chill protected speech, too the victims would have compensation for their injury. Schauer raised the possibility of the same approach for other speech-related harms, including those caused yesteryear loathe oral communication too pornography. I am interested inward what Franks would say.
My questions hither accept generally been almost what steps Franks recommends inward response to the problems she sees. The fact remains, however, that merely yesteryear discussing the costs of our constitutional commitments, she is furthering vital conversation.
Because know it or not, similar Mr. Khan too me, nosotros are all living inward Charlottesville.
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