October 10, 2025
At the Volume 94 Symposium, The George Washington Law Review hosted a lively debate featuring The George Washington University Law School’s own Dr. Mary Anne Franks, Eugene L. and Barbara A. Bernard Professor in Intellectual Property, Technology, and Civil Rights Law, and Professor Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law. Professor Mark Storslee, Associate Professor and C. Boyden Gray Distinguished Scholar at the University of North Carolina School of Law, moderated the Book Talk & Debate, during which Professor Franks and Professor Turley discussed the nuances of their divergent ideologies on free speech.
The debate commenced with each panelist providing background on their books and free speech theories. Professor Franks explained that her newest book, Fearless Speech: Breaking Free from the First Amendment, focuses on those who put everything on the line for what they believe. She highlighted the ancient Greek concept of parrhesia, interpreted by Michel Foucault to mean “fearless speech,” not merely free speech. She elaborated that American free speech doctrine prioritizes “reckless speech,” which often puts others in danger. She emphasized the importance of the distinction between fearless and reckless speech, defining “fearless speech” as speech that is candidly speaking to someone or something more powerful than oneself and criticizing them. Put more simply, fearless speech criticizes power and brings danger on oneself, whereas reckless speech attacks, bringing danger upon others.
Professor Turley explained that his book, The Indispensable Right: Free Speech in an Age of Rage, argues that the Supreme Court has made free speech dispensable and failed, specifically, in times he calls “ages of rage.” He explained that in an “age of rage,” free speech is often the first casualty, but that this was not the intention of the Framers. Instead, the Framers envisioned free speech as a fundamental right. Professor Turley argued that later administrations lost this perspective and replaced the conception of free speech as a fundamental right with functionalism, which protects speech based on the function it serves the community. He elaborated that the First Amendment was never intended to be the entirety of free speech protection and that viewing free speech as a fundamental right should widen the scope of protection to encompass both private and corporate action.
Moderator Professor Storslee then turned specifically to Whitney v. California, noting that both Professor Franks and Professor Turley agree that the Supreme Court erred in not protecting Whitney’s speech. Professor Storslee noted that Professor Turley’s free speech approach would have likely protected Whitney and asked for Professor Franks’s insight.
Professor Franks first cautioned against assuming the applicability of the text of the Constitution to predict the outcome of a case. She asserted that most Supreme Court cases can be better predicted based on whether the message in question corresponds to the qualities the Framers were interested in—race, gender, and class—and how close the speaker and message are to white male supremacy. To illustrate this point, Professor Franks juxtaposed Whitney, which did not protect the antiracist speech of a women’s rights activist, with the case that overruled it, Brandenburg v. Ohio, which did protect the racist speech of a KKK member.
The conversation then turned back to Professor Turley’s argument that free speech as a fundamental right should be protected from private and corporate action. Professor Franks cautioned against this approach, noting that the kind of private action Professor Turley takes issue with is not censorship, but rather an expression of the private entity’s First Amendment right to choose what speech they associate with. Professor Turley acknowledged that the Constitution is constructed with a government-private action dichotomy, but emphasized that free speech principles go beyond the First Amendment. He offered as an example the issues he sees in higher education, describing the current reality as a “shocking state of affairs” where most faculties have eliminated conservative and Republican voices.
Professor Storslee then inquired about current problems with free speech culture and how we may address them. Professor Franks distinguished between free speech culture and free speech law and maintained that we need to keep them separate. She emphasized that any effort to fix the problems with free speech culture with government action would be violating the First Amendment. Professor Franks went on to warn that we must be careful about what we focus on. She highlighted current efforts to paint the true threat to free speech as arising from the public, like student protests, as opposed to government action, like book bans. Professor Franks concluded with a stark warning that focusing on the wrong things, like cancel culture and students, instead of government action is “how we sleepwalk into the moment we are in.”
Professor Turley disagreed, reemphasizing the threat that cancel culture can pose. To support the assertion, he referenced the recent move by X (formerly Twitter) and Meta to a community note system, as opposed to the former content moderation system, which he maintained censored conservative voices. Professor Turley argued that the move was a positive one, creating a better environment for free speech on social media.
Professor Franks challenged whether the move was truly positive. She noted that there has been an increase in racial slurs and child pornography after the transition to a community note system. She also challenged the notion that conservative voices are truly censored on social media, noting that studies have shown that conservative content is actually optimized on social media because it often serves as “outrage bait,” driving increased engagement.
Professor Storslee then steered the conversation towards what each of the participants would like to see done differently with respect to free speech. Professor Franks explained that she would like to see a shift in free speech orthodoxy to focus on brave and courageous speech. She illustrated her point by recounting the story of Sophie Scholl, a student who distributed anti-Nazi pamphlets during the height of Nazi control. Scholl was caught, convicted, and executed, yet never wavered in her conviction. Professor Franks explained that she would like to shift the focus of free speech debate to the fearless speech exemplified by those like Sophie Scholl––those brave and courageous enough to sacrifice their lives for what they believe is right.
Professor Turley stated that he would like to see the adoption of a more expansive view on free speech ideas. He noted that the Supreme Court came close in the case of 303 Creative v. Elenis, but there is still farther to go. He reiterated his strong belief that we must move away from a functionalist view of free speech, which allows for some speech to be deemed good and other speech bad, and reasserted that we should adopt a view of free speech that truly respects speech as a fundamental right.
This summary was authored by Sydney Reid, Member.