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17 First Amend. L. Rev. 294 (2018-2019)
Fearless Speech

handle is hein.journals/falr17 and id is 309 raw text is: 


                     Mary Anne Franks*


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.

* Professor of Law, University of Miami School of Law. President, Cyber Civil
Rights Initiative. I would like to thank Gordon Hull in particular for pointing me to
Michel Foucault's writings onparrhesia.

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