Speaking of Women: Feminism and Free Speech
Mary Anne Franks

This essay is in the series Feminist Frictions: Key Concepts and Controversies, which is part of the Feminist Public Intellectuals Project. It is accompanied by a digital archive.

© 2022 by The University of Chicago. All rights reserved.

“Representation of the world, like the world itself, is the work of men; they describe it from their own point of view, which they confuse with the absolute truth,” wrote Simone de Beauvoir in The Second Sex.[1] Journalist Caroline Criado Perez cites Beauvoir in her 2019 book Invisible Women: Data Bias in a World Designed for Men, which catalogues how the male subject has been treated as the default subject in everything from crash test dummies to medical treatment.[2] Men’s interests are presumed to stand in for “everyone’s” interests; if women’s interests are thought of at all, it is only belatedly and as a kind of special consideration. This presumption, writes Criado Perez, is “the product of a way of thinking that has been around for millennia and is therefore a kind of not thinking. A double not thinking, even: men go without saying, and women don’t get said at all.”[3]

“Women don’t get said at all.” Thirty years before Criado Perez’s book, legal scholar Lucinda Finley described “how legal language—ranging from the limited definition of discrimination to the broad definition of speech—and legal reasoning—which insists that proposed legal changes be measured against existing definitions that may not have taken women into consideration at all, and which privileges abstract analogic reasoning over experiential understandings—construct our conceptions of harm and acceptable behavior.”^[4] Where the law’s universalization of the male subject has been very obvious, it has often been the target of feminist critique and reform: the doctrines of coverture and separate spheres;  disenfranchisement, denial of employment and educational opportunities, and other legal disabilities imposed upon women; the patriarchal foundations of the law of domestic violence and sexual assault. But where androcentric bias is more subtle and more seductive, as it is in the law of free speech, it has received far less scrutiny.

The theory and practice of free speech is suffused with pretensions to universality that obscure the gendered nature of power and the particularities of women’s lived experience.Click To Tweet

It is no less important to ask of First Amendment law what Finley asks about law generally: “If the law has been defined largely by men, and if its definitions, which are presumed to be objective and neutral, shape societal judgments as to whether a problem exists or whether a harm has occurred, then can the law comprehend and adequately redress women’s experiences of harm?”[5] The answer, of course, is that it cannot.  The theory and practice of free speech is suffused with pretensions to universality that obscure the gendered nature of power and the particularities of women’s lived experience. The protections and exceptions of the First Amendment that are presented as neutral and abstract are almost inevitably determined by men’s interests.   When First Amendment law fundamentally ignores or misunderstands women’s speech, “free speech for all” can only ever mean “free speech for men.”

Talk Like a Man

Any woman who has ever struggled to be understood by voice-recognition software may be unsurprised to learn that speech-recognition software is far more likely—in some cases 70 percent more likely—to recognize men’s voices than women’s voices. Perhaps more surprising is the reason for the disparity: the databases of voice recordings on which speech-recognition technology is trained (the “corpora”) “are dominated by recordings of male voices.”[6] As Criado Perez details in her book, male bias in voice recognition technology is all the more notable for the fact that, all else being equal, women’s voices should generally be easier to recognize than men’s: “studies have found that women have ‘significantly higher speech intelligibility,’ while … men have ‘higher rates of disfluency, produce words with slightly shorter durations, and use more alternate (‘sloppy’) pronunciations.’”[7] That is, there is no “natural” reason that voice recognition software should have a harder time understanding women than men. It is, rather, a predictable result of treating men—and male speech—as the default subject.

The negative consequences of gender bias in voice-recognition products and services are not limited to inferior performance, frustration, and wasted time for female users. Voice-recognition software is now used in everything from physician notes to driving assistance, meaning that the bias in favor of men’s speech has the potential to cause injury and death.[8] Misunderstanding a female physician’s words can result in an array of errors in patient care, from prescription mistakes to misdiagnosis. The inability of voice command systems in cars to recognize or understand women’s voices for navigation or other tasks means that women either cannot rely on these services or will find themselves in potentially dangerous situations if they do. These kinds of poor outcomes burden women disproportionately, but they are suboptimal for everyone: unreliable physician notes pose risks to all patients, and distracted driving is a threat to everyone on the road.

What should be done about such a serious problem? One might think the first step would be to acknowledge and address the gender data gap that is biasing the system: eliminate the overrepresentation of male voices and focus on women’s voices until the system can hear and understand them properly. A very different approach was offered by a representative of a major provider of automobile navigation services, who suggested that “many issues with women’s voices could be fixed if female drivers were willing to sit through lengthy training … [to] be taught to speak louder, and direct their voices towards the microphone.”[9]

There are feminist lessons here that apply beyond the world of voice recognition. First, androcentric bias will never result in neutral or equal outcomes. Systems designed by and for men will fail women in significant ways, and will also negatively impact the general welfare. Second, women should be wary of any version of equality that requires them to “see themselves” in men or model themselves after men. Information about and from women, not filtered by or subordinated to men’s interests, must be central to any system that purports to be beneficial or just.

Women should be wary of any version of equality that requires them to “see themselves” in men or model themselves after men.Click To Tweet

These lessons are particularly important for the construction and enforcement of free speech law and norms. While free speech is often promoted as a neutral and objective good that everyone can access equally, it has been shaped by long-standing, structural bias in favor of male subjects in its development and application. When women struggle to be heard or understood by the law and policy of free speech—when First Amendment orthodoxy silences rather than frees women—then it is the system that must change, not women.

“Free Speech for the White Man”

The view that the First Amendment is a quasi-sacred right that must be interpreted as broadly as possible, no matter the consequences, is sometimes referred to as First Amendment absolutism. But this is a misleading term, given that even the staunchest self-styled defenders of the First Amendment acknowledge that the First Amendment does not and should not protect all forms of expression. Free speech “absolutists” always turn out to be selective in their absolutism: maximalists when it comes to speech that conforms with their world-view and minimalist towards speech that does not.[10] A far more fitting term for this attitude is First Amendment fundamentalism, a term that emphasizes how the fervor for reading the First Amendment in selective and self-serving ways resembles religious extremism.[11]

A central assumption of First Amendment fundamentalism is that freedom of speech exists in fact. Accordingly, free speech theory and practice are defensively oriented, guarding against attempts to encroach upon free speech rights. Hence the antiregulatory thrust of contemporary free speech ideology—any intervention in the speech status quo, especially by the government, is regarded with suspicion.

Feminist analysis of the First Amendment ... reveals that freedom of speech is a reality only for certain people—in particular, white men.Click To Tweet

Feminist analysis of the First Amendment, on the other hand, reveals that freedom of speech is a reality only for certain people—in particular, white men.[12] Women’s free speech rights, while eventually formally acknowledged in theory, do not yet fully exist in practice. For more than a century in this country, women were barred from exercising one of the most basic forms of political expression, the vote. For even longer, they were legally prohibited from accessing political, employment, and educational opportunities available to men, which meant that their voices were literally excluded from public spaces, workplaces, and schools. For even longer than that, and continuing to the present day, women have been silenced by domestic violence, sexual assault, workplace discrimination, street harassment, stalking, rape threats, and other forms of abuse disproportionately targeted at them. The threat of male violence anywhere chills women’s speech everywhere—in public, in private, at work, at home, in the street, online.

The threat of male violence anywhere chills women’s speech everywhere—in public, in private, at work, at home, in the street, online.Click To Tweet

And yet one would have to look very hard for First Amendment cases that even acknowledge the existence of a free speech gender gap, to say nothing of addressing the systematic denial of women’s free speech rights. What one frequently finds instead is Orwellian inversion: silencing is free speech, and the resistance to silencing is censorship. Much contemporary free speech advocacy focuses on affirmatively providing outlets for violent expression against women and other vulnerable groups, as well as blocking attempts to mitigate the harms of myriad forms of abuse, including cyberstalking, harassment, misogynist propaganda, and nonconsensual pornography.[13]

Far from being a universal, objective doctrine, First Amendment law has a gender, and a race, and a class. All of the drafters of the First Amendment were men: white, landowning, Protestant men, to be exact. For more than a century, nearly every lawmaker with the power to define the boundaries of free speech doctrine was a white man. All but a tiny, recent fraction of the people who have ever presided on the highest court of the land have been white men.[14] Nearly 90 percent of all First Amendment freedom-of-expression cases the Supreme Court has heard in its history have been brought by men,[15] and 93 percent of those cases have been litigated by men.[16]

While the First Amendment cases of the early-to-mid twentieth century were often brought on behalf of marginalized speakers, including antiwar activists, Communists, civil rights activists, religious minorities, and union workers, over the last few decades the doctrine has increasingly shifted from defending vulnerable voices to championing powerful ones: corporations, pornographers, antiabortion activists, and white supremacists seeking constitutional protection for speech that harasses, exploits, or otherwise harms vulnerable groups.^[17]

One of the most famous modern-era free speech battles, the 1976 case Collin v. Smith, involved a proposed Nazi march in Skokie, Illinois. Members of the National Socialist Party of America (NSPA) announced their intention to march in the Chicago suburb of Skokie, half of whose population at the time was Jewish and included hundreds of Holocaust survivors. The neo-Nazis distributed flyers and made unsolicited phone calls promoting the march to Skokie residents with Jewish-sounding names; the town of Skokie passed a series of ordinances to prevent the march from happening. The NSPA, represented by the American Civil Liberties Union, challenged the ordinances on First Amendment grounds and were given permission to march.

The triumphant NSPA members planned to wear Nazi-style uniforms, display banners adorned with swastikas, and hold placards that proclaimed, fittingly, “Free Speech for the White Man.” And free speech for the white man – especially for rich white men – has continued to flourish since then. Lincoln Caplan observed in 2015 that free speech advocates today “are not standing up for mistrusted outliers or for the dispossessed and powerless” but advocate on behalf of “the super-rich and the ultra-powerful, the airline, drug, petroleum, and tobacco industries, all the winners in America’s winner-take-all society.”^[18] According to John Coates, “corporations have increasingly displaced individuals as direct beneficiaries of First Amendment rights,” as almost “half of First Amendment legal challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals.”^[19] As Mary Becker noted in 1993,

Today, free speech claims are increasingly likely to be brought by rich, powerful, commercial entities (including tobacco companies and pornographers), by racist speakers, or to challenge progressive campaign reform legislation.… Formal guarantees, of the kind the First Amendment has turned into, “generally favor those groups in society that are already the most powerful.” If speech continues to come to mean protection equally of the speech of the powerful and powerless, it is likely to be increasingly conservative, so that the net effect on racial minorities and other unpopular speakers is negative.[20]

First Amendment fundamentalism, promoted not only by courts and legislatures but powerful organizations like the ACLU, ensures that white men dominate free speech theory and practice. Forty years after they won the right for neo-Nazis to demonstrate in Skokie, the ACLU successfully represented the organizers of a white male supremacy demonstration in Charlottesville, Virginia, in 2017. Unlike the march through Skokie, which ultimately never took place, the “Unite the Right” demonstration terrorized the town of Charlottesville and led to multiple injuries and deaths, including the murder of a peaceful protester named Heather Heyer by a white supremacist. The city of Charlottesville had attempted to move the demonstration to a different location out of concern for public safety, but the ACLU argued that holding the demonstration in Emancipation Park was “critical to the message” of the white supremacists and moving it “would dilute and alter” that message.[21] The overwhelmingly male demonstrators showed up with swastikas, Confederate flags, and weapons, making clear that the only defense of “free speech” they were interested in was for themselves. As is clear to any non-fundamentalist proponent of the First Amendment, the threat of violence has a profound chilling effect and is incompatible with a principled commitment to free expression.

First Amendment fundamentalism, promoted not only by courts and legislatures but powerful organizations like the ACLU, ensures that white men dominate free speech theory and practice.Click To Tweet

Heroes of the Slippery Slope

Long before the events in Charlottesville, the ACLU faced criticism for its aggressive defense of Nazis, racists, misogynists, and others committed to the dehumanization and subordination of historically marginalized groups. Its consistent response has been to assert, in effect, that defending the former protects the latter. According to Aryeh Neier, the ACLU’s executive director at the time the ACLU supported the NSPA’s proposed march in Skokie because, “Once the freedom of one group is abridged, that infringement will be cited to deny the rights of others.”[22] The organization echoes this sentiment on its website:

We do not defend them because we agree with them; rather, we defend their right to free expression and free assembly. Historically, the people whose opinions are the most controversial or extreme are the people whose rights are most often threatened. Once the government has the power to violate one person’s rights, it can use that power against everyone. . . . We subscribe to the principle that if the rights of society’s most vulnerable members are denied, everybody’s rights are imperiled.[23]

This is a familiar and effective civil libertarian refrain because it accomplishes two things simultaneously: it allows the civil libertarian to distance himself from the bad speech he defends today and to characterize this defense as the only thing keeping good speech from being silenced tomorrow. We must protect the “thought we hate’”[24] in order to protect the speech we love: any measure restricting racist speech could be used to restrict antiracist speech, any regulation of sexist speech would inevitably open the door to regulation of feminist speech, and so on.

The claim has great intuitive appeal, so much so that it may be hard to recognize what it is: a slippery slope argument, one of the most common logical fallacies.[25] As Frederick Schauer writes, “slippery slope claims deserve to be viewed skeptically, and the proponent of such a claim must be expected to provide the necessary empirical support.” [26] Where is the evidence that restricting a neo-Nazi’s right to don an SS costume and wave a swastika in the face of a Holocaust survivor would inevitably lead to censoring criticism of anti-Semitism? Where is the evidence to show that limiting the Ku Klux Klan’s ability to burn crosses in Black neighborhoods would lead to silencing racial justice advocates?

Where is the evidence to show that limiting the Ku Klux Klan’s ability to burn crosses in Black neighborhoods would lead to silencing racial justice advocates?Click To Tweet

For the free speech slippery slope argument to make sense, one must believe that the law is simply incapable of drawing lines between, for example, the advocacy of violent white male supremacy and the promotion of racial and gender equality. But it is the business of law to draw lines, and to “to adjudicate not just in the abstract but in context. It is certainly not always obvious in the abstract how, for example, spirited criticism can be distinguished from defamation, or heated insults from fighting words, or art from obscenity, but First Amendment law can and does make such distinctions.

But perhaps what civil libertarians really doubt is not law’s ability to draw meaningful distinctions between forms of controversial speech but whether such meaningful distinctions actually exist. Neier writes that “it is the extremes that have the greatest interest in protecting the rights of their enemies. The people who most need the A.C.L.U. to defend the rights of the Klan are the blacks. The people who most need the A.C.L.U. to defend the rights of Nazis are the Jews.”’[27] Neier, who is Jewish and who moved to the United States from Nazi Germany when he was two years old,  here is drawing a startling equivalence between the KKK and Nazis on the one hand— groups that advocate violence and discrimination against those different from them— with Black and Jewish people—who simply happen to belong to the racial or ethnic groups singled out for attack. The fact that Neier views these groups as representing different “extremes” reveals a great deal about the civil libertarian position.

ACLU leaders Mary Ellen Gale and Nadine Strossen have drawn similar equivalences between misogynists and the women they attack. In a 1989 essay responding to Andrea Dworkin, an antipornography author and activist who criticized the organization’s support for the pornography industry, Gale and Strossen argue that Dworkin and like-minded feminists fail to grasp how the ACLU’s defense of misogynist speakers actually protects the women attacked by those speakers: “Ensuring the free speech rights of anyone, including a racist or misogynist, secures the same rights for everyone else, including an intended victim.”[28] In other words, while it might look like the ACLU is simply representing white men’s speech interests in courts and legislatures, women can be confident that their interests are included in this effort. One is reminded of the gallant assurances offered to suffragists in the nineteenth century: women do not need to worry about the right to vote because their husbands and fathers would represent their interests for them.

But what exactly are “the same rights” that are protected through the defense of misogynist speech? Dworkin and other antipornography feminists used their free speech rights to write and speak about their views that pornography causes harm to women. The misogynists they criticized used their free speech rights to publish graphic depictions of brutal sexual violence and torture, anti-Semitic caricatures, and nonconsensual pornography. Some of them, like Hustler publisher Larry Flynt, portrayed feminists like Dworkin in sexually degrading, pornographic “features,” including the following:

The February Feature is a cartoon, which, as described in the plaintiffs’ complaint, “depicts two women engaged in a lesbian act of oral sex with the caption, ‘You remind me so much of Andrea Dworkin, Edna. It’s a dog-eat-dog world.’” The March Feature is a ten page pictorial consisting of photographs of women engaged in, among other things, acts of lesbianism or masturbation. Some of the photographs depict obviously staged scenes that include posed violence and phony blood. One photograph, supposedly of a Jewish male, has a caption stating: “While I’m teaching this little shiksa the joys of Yiddish, the Andrea Dworkin Fan Club begins some really serious suck-‘n’-squat. Ready to give up the holy wafers for matzoh, yet, guys?” The December Feature was included in the “Porn from the Past” section of the magazine. It shows a man performing oral sex on an obese woman while he masturbates. A portion of the caption states: “We don’t believe it for a minute, but one of our editors swears that this woman in the throes of ecstacy [sic] is the mother of radical feminist Andrea Dworkin.”[29]

It is one thing to maintain that both feminist writing and the production of mainstream pornography are protected by the First Amendment, but to claim that they are “the same rights” is an unsupported and incoherent equivalence. Even less intelligible is the claim that protecting a pornographer’s ability to attack and humiliate feminist activists to sell magazines serves the interests of any women, least of all the women targeted. This assertion directly contradicts the accounts of women themselves, who maintain that such pornographic attacks actually undermine their ability to speak. As Marianne Wesson writes, “Anti-pornography feminists call attention to the silencing or censoring effect that the widespread dissemination of pornography has on women when they seek to speak and be heard on issues of sexuality and sexual ethics. … The absence of any governmental role in discouraging the pornographer may have the effect of actually promoting the drowning, discrediting, and ultimately the censoring of women’s voices on these subjects.”[30]

But ignoring women’s accounts of harm in favor of strained symmetry is a common strategy in defending androcentric systems. Recall the industry executive’s advice to women whose speech was not being recognized by voice recognition software: the system benefits men and women equally, so long as women sound like men. You can hear the same patronizing sentiment in the Wyoming district court dismissal of Dworkin’s case:

The First Amendment works both ways. While feminists cannot sue pornographers because they find the materials offensive and harmful to women, neither can other members of society who find feminist literature offensive and potentially harmful to their way of life, sue feminists for publishing their views. In a society with such diverse opinions and life-styles as flourish in these United States, the protection of free speech guaranteed by the First Amendment is perhaps the most important component of the free society envisioned by our founders as set forth in the United States Constitution.[31]

Not only does the court treat men’s rights to sexually demean and harass women for profit as equivalent to women’s rights to criticize them for doing so, it also claims, like the ACLU, that protecting the former is necessary for the protection of the latter. But the right to engage in pornographic attacks against one’s critics isn’t just unnecessary for women’s right to criticize pornography, it—if one believes the women who have experienced such attacks—directly undermines it.

Ignoring women’s accounts of harm in favor of strained symmetry is a common strategy in defending androcentric systems.Click To Tweet

Echoing Neier’s assertion that Black people and Jews “need” the ACLU to protect the KKK and Nazis, Gale and Strossen conclude their essay by suggesting that Dworkin should be grateful “that for almost seventy years the real ACLU has been working to make the world safe for her to write.”[32] But the world isn’t safe for feminists, or for any woman who steps in the minefield of men’s anger, when men’s speech can be weaponized against women with impunity. Sexual harassment, stalking, rape threats, so-called revenge porn (nonconsensual distribution of private, sexually explicit images without the consent of the person depicted); doxing (the publication of personal identifying information, often with malevolent intent); and deep fakes (audiovisual material that has been digitally altered to create a highly realistic, false impression of a person’s appearance, actions, or words, often used to create pornographic depictions of women without their consent) don’t just inflict severe psychological, economic, and reputational harm on individual victims—they also silence women as a group, deterring them from reporting abuse, engaging in intimate expression, pursuing educational and professional opportunities, and participating in civic life.

If protecting radical, dissenting, provocative, unpopular speech truly were at the heart of the First Amendment, then it would be women’s speech, especially women’s speech that displeases or defies men, that would preoccupy free speech doctrine and practice.  Throughout history, women’s speech challenging the power and authority of men has been prohibited, regulated, and punished, from a four-thousand-year-old Sumerian law declaring that “a woman who speaks out of turn to a man will have her teeth smashed by a burnt brick” to the burning of women at the stake for “spells” and blasphemy to the vicious backlash against women who speak out against sexual abuse.[33] In 2017, Desiree Fairooz, a member of the women’s activist group Code Pink, was arrested and convicted for disorderly conduct for laughing during the confirmation hearing of Attorney General Jeff Sessions;[34] in 2020, art teacher Sheila Buck was arrested and physically dragged away from a public street by Tulsa police for wearing a t-shirt that read “I Can’t Breathe” before a Trump rally;[35] multiple women who have made or publicized high-profile #MeToo allegations have been sued for defamation.[36]

But these are not the kinds of free speech cases that garner the attention and support of prominent, well-funded civil liberties organizations. What organizations like the ACLU, the Electronic Frontier Foundation, and the Media Coalition are very concerned about are cases involving the free speech rights of stalkers, harassers, and producers of nonconsensual pornography. Both the ACLU and the EFF objected to a 2006 amendment to the Violence Against Women Act that included liability for cyber stalking intended to cause substantial emotional address.  The EFF claimed that this provision “strayed the statute from what is permissible under the First Amendment,” making the law “dangerously vague as it hinged on a person’s subjective state of mind rather than an objective threat to do harm.”[37] The ACLU similarly criticized the provision for allowing “prosecution when the defendant acts with the intent to ‘harass’ and/or ‘intimidate,” terms that it claimed were “unconstitutionally overbroad.”[38]

A few years later, the ACLU turned its attention to attacking the burgeoning movement to criminalize the unauthorized distribution of private, sexually explicit images, also known as “revenge porn.” This is a movement in which I have played a direct role[39]: I drafted the first model nonconsensual pornography law in 2013, which has since been used by Congress and many states as a template for their legislative efforts, and served as the Reporter for the Uniform Law Commission committee dedicated to the issue. The ACLU’s efforts to characterize nonconsensual pornography as free speech and laws prohibiting it as censorship have been joined by the EFF, the Media Coalition, and the Motion Picture Association of America, the American Booksellers Association, and many other powerful organizations. While these efforts did not defeat the wave of legislative reform on the issue that began in 2013 (when only three states had nonconsensual pornography laws) to the present (when 48 do), they have succeeded in watering down the majority of these laws so that they are largely ineffective for the majority of victims.

These groups have argued that nonconsensual pornography laws violate the First Amendment, and, where that argument has not succeeded, have demanded that the laws be limited to perpetrators who intend to harm their victims. Having condemned the VAWA cyber stalking provision for including a subjective intent provision uses “unconstitutionally broad” terms such as harass and intimidate, the ACLU argues that the lack of such a provision renders nonconsensual pornography laws unconstitutional.[40] As signaled by its own unintelligible stance on the issue, this claim is not supported by First Amendment doctrine and does not serve First Amendment interests. What it does do is allow perpetrators who are motivated by anything other than personal vengeance—including profit, entertainment, voyeurism, or reputational enhancement—to act with impunity.  Researched conducted by the Cyber Civil Rights Initiative reveals that nearly 80 percent of all perpetrators fall into this category.[41]

Where states have resisted the lobbying efforts of the ACLU and other special interest groups, these groups have aggressively attacked their efforts. In 2014, the ACLU sued the state of Arizona over its nonconsensual pornography law on First Amendment grounds; while no ruling on the merits was ever made, the state withdrew the statute and replaced it with a weaker version largely duplicative of existing harassment law.[42] Other states have held firm, even as their laws were challenged all the way up to the U.S. Supreme Court. Illinois provides a particularly illuminating and inspiring example. The Illinois state law is the one that most closely resembles my model statute, and I was personally involved in drafting and defending it. The law focuses on the victim’s lack of consent to the distribution of the image rather than on the particular intent of the perpetrator in distributing the image. The ACLU of Illinois attacked the law as an infringement of free speech. “Is non-consensual sharing of naked pictures protected by the First Amendment? …The answer is yes,” an ACLU representative was quoted as saying.[43] After a circuit court declared the law facially unconstitutional on First Amendment grounds, the law was reviewed by the Illinois Supreme Court, which rejected the defendant’s First Amendment arguments reversed the lower court’s ruling.

In People v. Austin (2019), the Illinois Supreme Court, citing arguments made in my scholarship and in the amicus brief I wrote on behalf of the Cyber Civil Rights Initiative, recognized that nonconsensual pornography causes profound harm, particularly to women: “this crime can engender domestic violence. Perpetrators threaten disclosure to prevent victims from ending relationships, reporting abuse, or obtaining custody of children. Sex traffickers and pimps threaten disclosure to trap unwilling individuals in the sex trade. Rapists record their sexual assaults to humiliate victims and deter them from reporting the attacks.”[44] The Court rejected the claim that the lack of a malicious motive requirement rendered the statute unconstitutional, noting the absence of “any legal authority for the proposition” and further observing that “the unauthorized dissemination of a private sexual image, which by definition must depict a person while nude, seminude, or engaged in sexually explicit activity, is presumptively harmful.”[45] Most significantly, the Court rejected the contention that the law infringes upon the free speech of would-be distributors and pointed to the impact of the abuse on “the victim’s[46] first amendment right to engage in a personal and private communication that includes a private sexual image.”

When the defendant petitioned the U.S. Supreme Court for review, several prominent civil liberties organizations filed briefs in support, including the First Amendment Lawyers Association, the Cato Institute, the Woodhull Freedom Foundation, and the American Booksellers Association, all proclaiming that the law infringed upon free speech. In October 2020, the Supreme Court denied the petition, leaving the Illinois Supreme Court’s decision standing.[47]

Given the hostility of civil liberties groups to a law that prohibited the disclosure of private intimate images without consent, it was all the more remarkable when the ACLU, supported by the EFF and other civil liberties organizations, filed suit in 2020 against the facial recognition company Clearview AI for disclosing facial biometric data extracted from photographs without the consent of the depicted individuals. The lawsuit alleges that Clearview’s practices violate Illinois’s Biometric Information Privacy Act (BIPA), which requires entities that capture biometric information of individuals to obtain written consent from those individuals before disclosing that information.[48] In response, Clearview, represented by First Amendment titan Floyd Abrams, echoed the civil libertarian position with regard to nonconsensual pornography: it’s protected free speech.

But here, the civil libertarians vociferously rejected the free speech argument: not only did the ACLU insist that Clearview AI’s actions were not protected by the First Amendment, it argued that selling “faceprint” data without consent chilled the free speech of vulnerable groups. The First Amendment does not prohibit states from enacting laws to protect privacy, the ACLU maintained. In an intriguing twist, the ACLU cited People v. Austin on this point: “A ruling in Clearview’s favor on this point would make it virtually impossible for the state to enact privacy and information security laws. Proper application of the First Amendment does not produce this result. Indeed, the Illinois Supreme Court recently rejected a First Amendment challenge to another law in part because accepting it “would cast doubt on the constitutionality of . . . statutes that protect the privacy rights of Illinois residents[,]” specifically including BIPA. People v. Austin, 2019 IL 123910, ¶ 50.[49]

The tale of two Illinois privacy laws demonstrates, first, civil libertarian hypocrisy about free speech. A sexualized harm disproportionately committed by men against women is free speech that must be protected; a non-sexualized harm that impacts men as well as women endangers free speech and must be prohibited. This story also demonstrates, however, that it is acknowledging and protecting harms to women’s speech and privacy interests that makes the world safer for men’s speech and privacy interests—not the other way around. When the First Amendment listens to women, everyone benefits.

It is acknowledging and protecting harms to women’s speech and privacy interests that makes the world safer for men’s speech and privacy interests—not the other way around. When the First Amendment listens to women, everyone benefits.Click To Tweet

Conclusion

One of the most effective strategies of fundamentalism is “victim-claiming,” or re-casting the powerful as the powerless.[50] The ACLU refers to the KKK, Nazis, and pornographers not only as “controversial” and “extreme,” but also as “vulnerable.” It’s an important sleight of hand: the link between controversy and vulnerability is far from obvious. Having controversial opinions might make a person unpopular, but it is neither necessary nor sufficient to make a person vulnerable. The claim to vulnerability is even more specious when it is applied to corporate entities representing multi-billion-dollar industries. As Catharine MacKinnon wrote apropos of the porn industry, it is odd to take “the position that the pornographers are the rebels, the disenfranchised, and the hated, rather than the bearers and defenders of a ruling ideology of misogyny and racism and sexualized bigotry” when they are “hated to the tune of eight billion dollars a year.”[51]

In a remarkable passage, Gale and Strossen acknowledge the possibility that the ACLU’s entire free speech ideology may be a house of cards, wondering if

the Klan, the Nazis, and the pornographers, at some deeper level of our national psyche, are not really despised fringe groups at all, but centrists in extremists’ clothing, purveyors of the denied truth that we as a nation are still hostages to our history of racial and sexual xenophobia and oppression. By allowing them to speak freely, while overtly and sanctimoniously denouncing their message, we covertly accept it. Because the political and social context in which they speak is not and never has been neutral, we cannot comfortably contend that they alone are the enemy of equal rights and freedoms. The enemy is still us.[52]

Once they have raised the possibility, however, Gale and Strossen simply drop it, quickly reverting back to the civil libertarian orthodoxy of a neutral and inclusive First Amendment. But the First Amendment can only be thought of as neutral if one ignores the reality of power.[53] Finley writes:

A “neutral” doctrine protecting all speech actually protects only speech that is defined by the prevailing discourse as worthy of protection. And the speech of the more powerful, when given free rein under the apparently neutral doctrine protecting all speech, further entrenches prevailing views of reality and standards for judging the world. This in turn has the effect of further silencing or devalidating the dissenting voices.[54]

The unacknowledged androcentrism at the heart of the First Amendment, like the unacknowledged androcentrism in product design, medicine, and urban planning, not only disadvantages women but undermines general welfare. Free speech androcentrism injures women and other vulnerable groups by ignoring, chilling, and drowning out their speech, producing a dysfunctional and impoverished free speech system for everyone. There is no free speech where women are not heard.

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Notes

[1] Simone de Beauvoir, The Second Sex (1949), 143.

[2] Caroline Criado Perez, Invisible Women: Data Bias in a World Designed for Men (New York: Abrams, 2019)., xii

[3] Id. at

[4] Lucinda M. Finley, The Nature of Domination and the Nature of Women: Reflections on Feminism Unmodified, 82 Nw. U. L. Rev. 352, 386 (1988).

[5] Lucinda M. Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886–87 (1989)

[6] Criado Perez, 164.

[7] Criado Perez, 163-64.

[8] Id. “‘The fact that men enjoy better performance than women with these technologies means that it’s harder for women to do their jobs. Even if it only takes a second to correct an error, those seconds add up over the days and weeks to a major time sink, time your male colleagues aren’t wasting messing with technology.’”

[9] Sharon Silke Carty, Many Cars Tone Deaf To Women’s Voices, Autoblog, https://www.autoblog.com/2011/05/31/women-voice-command-systems/, May 31, 2011.

[10] See, for example, “Justice Hugo Black’s sputtering dissent in Tinker, in which the self-styled First Amendment “absolutist” ridiculed the idea that the First Amendment should protect the “groups of students all over the land … already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins.” Mary Anne Franks, The Miseducation of Free Speech, 105 Va. L. Rev. Online 218, 233 (2019)

[11] See Mary Anne Franks, The Cult of the Constitution: Our Deadly Devotion to Guns and Free Speech (Stanford, CA: Stanford University Press, 2019), 105-57.

[12] See Mary Anne Franks, Beyond ‘Free Speech for the White Man’: Feminism and the First Amendment, in Research Handbook on Feminist Jurisprudence, ed. Robin West and Cynthia Grant Bowman (Cheltenham: Edward Elgar, 2019).

[13] Id.

[14] Jessica Campisi & Brandon Griggs, “Of the 113 Supreme Court justices in US history, all but 6 have been white men”

CNN, Sept 5, 2018. https://www.cnn.com/2018/07/09/politics/supreme-court-justice-minorities-trnd/index.html.

[15] Mary Anne Franks, Fearless Speech, 17 First Amend. L. Rev. 294, 304–05 (2018).

[16] See Ronald K.L. Collins, 38 Women Who Argued First Amendment Free Expression Cases in the Supreme Court: 1880 -2018, Concurring Opinions, FAN 199, https://concurringopinions.com/archives/2018/08/fan-199-first-amendment-news-special-issue-38-women-who-argued-first-amendment-free-expression-cases-in-the-supreme-court-1880-2018.html, Aug. 7, 2018.

[17] See, e.g., J.M. Balkin, Some Realism About Pluralism: Legal Realist Approaches to the First Amendment, 1990 Duke L.J. 375, 384 (1990); Wayne Batchis, The Right’s First Amendment ix-x (2016).

[18] Lincoln Caplan, The Embattled First Amendment, American Scholar, Mar. 4, 2015, https://theamericanscholar.org/the-embattled-first-amendment/#.V7toqI5eyVp

(2015).

[19] John C. Coates IV, Corporate Speech & the First Amendment: History, Data, and Implications, 30 Const. Comment. 223, 223–24 (2015).

[20] Mary E. Becker, Conservative Free Speech and the Uneasy Case for Judicial Review, 64 U. Colo. L. Rev. 975, 1020 (1993)

[21] Kessler v. Charlottesville, 441 F. Supp. 3d 277 (W.D. Va. 2020), https://acluva.org/en/cases/kessler-v-charlottesville.

[22] Mary Ellen Gale & Nadine Strossen, The Real Aclu, 2 Yale J.L. & Feminism 161, 180 (1989)

[23] ACLU website, https://www.aclu.org/about-aclu

[24] U.S. v. Schwimmer, 279 U.S. 644, 646–47 (1929).

[25] See Susan Brison, Free Speech Skepticism, Kennedy Institute of Ethics Journal, Volume 31, Number 2, June 2021, pp. 101-32 (“Slippery slope arguments are generally suspect…By means of them we can ‘prove’ that there is no difference between an infant and an adult or an acorn and an oak tree, since there is no non-arbitrary way of determining when one turns into the other.”), 118.

[26] Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361, 382 (1985)

[27] Gale & Strossen, 180.

[28] Gale & Strossen, 180.

[29] Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1191 (9th Cir. 1989)

[30] Marianne Wesson, Sex, Lies and Videotape: The Pornographer As Censor, 66 Wash. L. Rev. 913, 921–23 (1991)

[31] Dworkin v. Hustler Magazine, Inc., 634 F. Supp. 727, 731 (D. Wyo. 1986)

[32] Gale & Strossen, 187

[33] Mary Anne Franks, Witch Hunts: Free Speech, #MeToo, and the Fear of Women’s Words, University of Chicago Legal Forum (2019).

[34] The Department of Justice later dismissed the case. Maya Salam, Case Is Dropped Against Activist Who Laughed at Jeff Sessions’s Hearing,  N. Y. Times, https://www.nytimes.com/2017/11/07/us/jeff-sessions-laughter-protester.html, Nov. 7, 2017

[35] Samantha Vincent, Tulsan sues city, Trump campaign over her arrest before president’s rally at BOK Center, Tulsa World, July 10, 2021, https://tulsaworld.com/news/local/crime-and-courts/tulsan-sues-city-trump-campaign-over-her-arrest-before-presidents-rally-at-bok-center/article_12463ef2-c32a-11eb-8442-dbbf487f87f8.html

[36] Madison Pauly, She Said, He Sued, Mother Jones (March/April 2020), https://www.motherjones.com/crime-justice/2020/02/metoo-me-too-defamation-libel-accuser-sexual-assault/

[37] Hanni Fakhoury, With VAWA, A Major Step Forward in Combating Violence, But Constitutional Concerns Remain (March 14, 2013), Electronic Frontier Foundation, https://www.eff.org/deeplinks/2013/03/vawa-well-intentioned-still-unconstitutional

[38] Gabe Rottman, New Expansion of Stalking Law Poses First Amendment Concerns, ACLU (March 12, 2013), https://www.aclu.org/blog/new-expansion-stalking-law-poses-first-amendment-concerns?redirect=blog/free-speech/new-expansion-stalking-law-poses-first-amendment-concerns

[39] Mary Anne Franks, Revenge Porn Reform: A View from the Front Lines, 69 Fla. L. Rev 1251 (2018).

[40] Franks, Revenge Porn Reform, 1327.

[41] Asia Eaton, Holly Jacobs, and Yanet Ruvalcaba, 2017 Nationwide Online Study of Nonconsensual Porn Victimization and Perpetration Report. https://www.cybercivilrights.org/wp-content/uploads/2017/06/CCRI-2017-Research-Report.pdf, 19.

[42] Franks, Revenge Porn Reform, 1328-9.

[43] Brian Mackey, Illinois Legislation Targets ‘Revenge Porn’, NPR Illinois, Feb. 20, 2014, https://www.nprillinois.org/statehouse/2014-02-20/illinois-legislation-targets-revenge-porn

[44] People v. Austin, 2019 IL 123910, ¶ 30, 155 N.E.3d 439, 454

[45] Id.

[46] Id.; emphasis mine

[47] Austin v. Illinois, SCOTUSblog, https://www.scotusblog.com/case-files/cases/austin-v-illinois/

[48] ACLU sues Clearview AI, ACLU website, May 28, 2020, https://www.aclu.org/press-releases/aclu-sues-clearview-ai

[49] PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION TO DISMISS, ACLU, 14, https://www.aclu.org/plaintiffs-response-defendants-motion-dismiss

[50] FRANKS, Cult, xiii.

[51] MacKinnon, Feminism Unmodified, at 204-5.

[52] Gale and Strossen, 180-81

[53] See Mary Anne Franks & Ari Waldman, Sex, Lies, and Videotape: Deep Fakes and Free Speech Delusions, Maryland L. Rev. (forthcoming 2019).

[54] Finley, The Nature of Domination, 369.