Episode 266
Sam recaps some of the developments from the past week including the escalating attacks on cities (such as the Black Hawk helicopter raid on an apartment building in South Shore Chicago), the Trump/Hegseth meeting to direct generals to get ready to wage war crimes and train troops against the US population, the government shutdown and more.
Then, she speaks with Dr. Mary Anne Franks, George Washington University professor and author of Fearless Speech: Breaking Free from the First Amendment, about what Trump and MAGA mean by “free speech” as they directly censor critics. Find out more about her work here.
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Music for this episode: Penny the Snitch by Ikebe Shakedown
Episode 266 The Freedom to Silence You —Dr. Mary Anne Franks on Trump’s War on Dissent
Sun, Oct 05, 2025 2:05PM • 50:41
Mary Anne Franks 00:00
It’s been clear to those who are paying attention that when Trump says free speech, we know that he’s not meaning those words in any way that actually makes sense. This isn’t hypocrisy. Trump has always said whether it’s free speech, whether it’s democracy, whether it’s elections: If I win? He said as much when he was asked if he was going to respect the results of the election, and he says: I’ll respect them if I win. He told you everything that we needed to know. It is hard to measure just how bad this is. Americans certainly have a tendency to think that authoritarianism happens dramatically; there’s suddenly a moment where everything changes. The hardest thing is to talk about how gradual it can be. Then also, by the time a few gradual things have happened, then it’s very slow, and then it’s very fast. And I think we’re in that very fast moment right now.
Sam Goldman 01:03
Welcome to episode 266 of the Refuse Fascism podcast, a podcast brought to you by volunteers with Refuse Fascism. I’m Sam Goldman, one of those volunteers and host of the show. Refuse Fascism works to unite all who can be united to drive out the Trump fascist regime through mass, relentless, nonviolent resistance. Today, we are sharing an interview with legal scholar and author of ‘Fearless Speech: Breaking Free from the First Amendment,’ Dr. Mary Anne Franks. If you’re listening and find this show meaningful, take a moment after listening to today’s episode to rate and review the Refuse Fascism podcast on Apple Podcasts or wherever you get your podcasts, your review helps more people discover this conversation and join the movement to drive out Trump and the whole fascist regime.
Shout out to our patrons. If you aren’t one yet and want to keep the show going and growing, join today at Patreon.com/RefuseFascism. Trump has authorized the deployment of the National Guard Chicago. He attempted to deploy them to Portland, but was blocked by a federal judge, and he has sent a force of federal agents to Memphis, Tennessee. In Chicago in particular, we’ve seen extraordinary brutality by federal forces. One flash point being an all out military assault on a residential building in Chicago’s North Shore, a largely Black and Latin American community.
Troops deployed from Black Hawk helicopters in full tactical gear in the middle of the night to batter down doors and drag sleeping people, including children, some naked, out into the street. They rounded up citizens and non-citizens alike, wrecked people’s homes, ostensibly looking for any evidence of any connection to Tren de Aragua, evidence that hasn’t materialized in the days since. Multiple children, including four who are U.S. citizens, were taken into custody, zip tied together, crying and disoriented as they were kidnapped in this 1:00 a.m. raid. Darrell Ballard, who lives in the next building, told press, “I’ve been on military bases for a good portion of my life, and the activity I saw it was an invasion.”
In Memphis, Goebbels zombie, Stephen Miller, gave an unhinged speech, promising to be more bloodthirsty than the worst “gang banger” that he can conjure up in his disturbed imagination, saying: “They think that they’re ruthless. They have no idea how ruthless we are.” He is giving all authorities that they are now, “unleashed” to do, “whatever you want to do” to the residents of that majority Black city. These events unfolded alongside a massive meeting of military brass called by Trump declared Secretary of War, Pete Hegseth, where he scolded generals for allegedly following the laws of war and rules of engagement, for investigating sexual predators in their ranks, and where Trump advocated using American cities as training grounds — commit war crimes and wage war on American cities, were the messages of the day.
This unprecedented gathering was a move to forge a military answerable not to the Constitution but to Trump himself on a whole other scale. What was being communicated to the generals was clear: fall in line or get purged. History shows where this leads — unleashing the military against the population and green lighting repression to pave the way for a total lockdown of society, shutting down any chance of recourse, due process or resistance to stop them, and any hope of a future worth living in as they commit greater and greater atrocities that imperil all of humanity.
What I shared are just some of the snapshots of the cruelty being unleashed from the highest office in the land, accelerating more and more each week. But what does it actually mean to unleash the military in American cities? Yes, it’s obscenely unconstitutional. Yes, the military has more weapons and resources than most police departments, but this also represents a deeper structural shift. Even as they often flout the law, police are enmeshed with the structures of law, working as a unit with district attorneys and courts to enforce laws, imprison people, etc. But the military and DHS do not need the local or state judiciary in order to exert their force, with federal precedent largely giving them carte blanche to do as they please, and parallel structures of military and immigration law that both explicitly favor the state. The police are structured to maintain order.
My opinion, it’s a thoroughly rotten order, and oppressive violence is a key ingredient in the work. But a military is structured to exert force to achieve political objectives — winning wars, seizing territory, defeating enemy armies, crushing enemy forces, establishing political control through force, breaking the spirit of an enemy and decimating their power, overwhelming any resistance. That’s their whole point. And that’s just the beginning, because this particular military, the U.S. military, in the year 2025 is currently being restructured to unleash maximum lethality, regardless of any legality. Fundamental to the strategy, unlike local state governments, with their respective police forces, the U.S. military, is solely in the hands of the fascist Trump regime.
The fascists have long known that the Democratic shifts are undermining their traditional power base of white, largely rural Christian conservatives. They recognize global political shifts and cultural shifts that are undermining their voter block as well. Even as they deny global warming, they see resource wars coming, and they know gerrymandering and voter suppression can only go so far in propping up a notion of an electoral mandate. They have proven fully committed to making a transition from a nominally democratic republic to open minority rule, and deploying the military against the populations who oppose them is key to securing that future.
Meanwhile, in other developments, the government has been shut down by the fascists’ unwavering demands upon their congressional minority opposition. This has been caused by Trump’s cold refusal to negotiate to save health care for millions of Americans, and Trump has promised imminent mass firings of federal workers during the current unnecessary government shutdown.
It’s clear, painfully so, this fascism is moving quickly. It has already gone too far. There is still a way to stop it, but we don’t have much time. Humanity’s only hope is for the decent people of this country to rise in our millions, not waiting for future and rigged elections, instead acting together now to drive the Trump fascist regime from power. Our hope is in each other, pulling together every individual, every organization that cares about justice, for the largest nonviolent mobilization in U.S. history, to oust this fascist regime. The time has come for the fall of the Trump fascist regime.
Beginning November 5 in Washington, D.C., we all are being called upon to organize like never before. If you haven’t yet, sign up to join us in D.C. — see the link in the show notes, or visit RefuseFascism.org and make your plans to be there. Get your bus tickets, get your lodging, come together with others at mass organizing meetings to make November 5th a reality. Join me in Philadelphia on Friday, October 10, at 6:00 p.m. at Calvary United Methodist Church, and I’ll be zooming into the Boston mass organizing meeting taking place Saturday, October 11 at 11:00 a.m.at First Church Somerville, UCC. If you are anywhere in the Washington D.C. area, join us, Saturday October 11 at 2:00 p.m. at St. Stephen in the Incarnation Episcopal Church, and New York City, save the date spread the word for a mass organizing forum on October 15 at 7:00 p.m. at Advent Lutheran Church, featuring Cornel West, Michael Fanone and Sunsara Taylor.
For a full list of mass organizing meetings, locations and details and to RSVP, visit RefuseFascism.org or see the link in the show notes. Make plans to get in the streets, wherever you are, on October 18, No King’s Day 2.0. Refuse Fascism is a proud endorser, and then onward to November 5th in D.C. Every institution in society and government has deep cracks and divisions, with many people who hate what this regime is doing, even if they are now going along with it. This means that there are forces still within the ruling structures of this country who could be compelled and enabled to legitimately remove Trump from power.
But they have to be compelled and enabled, and it would only have enough power and chance at success with a massive political earthquake from below. I’m talking about a force of millions of people united in unrelenting, nonviolent mass protests, repudiating and delegitimizing this fascist regime in the eyes of the world. That’s what we need to be building every day for with our eyes set on November 5th being the beginning of this massive political earthquake. With that, here is my interview with Dr Mary Anne Franks.
Let’s be real. The Trump regime has launched the most dangerous assault on free expression in living memory, while gaslighting the world with claims that it is restoring free speech. This isn’t about protecting anyone’s rights. This is the machinery of fascism punishing dissent and enforcing obedience, if not outright loyalty. Right now, Trump is ordering lawful residents to be surveilled, rounded up, expelled, because of what they said or what they protested — dictating what words people may speak, what schools may teach, what values businesses are allowed to promote. He is threatening journalists, students, lawyers, judges, governors, religious leaders, anyone who refuses to bow down.
The message couldn’t be clearer: Speak what Trump wants, or be crushed. This is clearly not democracy. This man has declared himself above the law, above the Constitution, above the First Amendment. Unless we stop him, he will succeed. That’s why today I am so, so glad that we’re joined by Dr Mary Anne Franks, the Eugene L. and Barbara A. Bernard Professor in Intellectuwl Property Technology and Civil Rights Law at the George Washington University Law School. She is the president and legislative and Tech Policy Director of the Cyber Civil Rights Initiative and an author whose latest book is ‘Fearless Speech, Breaking Free from the First Amendment.’ Dr. Franks has long warned how the mythology of free speech is manipulated by those in power, shielding the strong while leaving dissenters and marginalized people exposed. Welcome, Dr Franks, thanks for joining me.
Dr. Mary Anne Franks
Thank you for having me.
Sam Goldman 11:55
Originally, when we reached out, we wanted to talk about Jimmy Kimmel being pulled off the air, and thankfully, since, since that time, there has been ample pushback, really, throughout society, and he’s been brought back on the air. But I wanted to get your thinking about how significant this was, what it represented in your mind, and how it intersects with the larger dynamic that we see, where Trump and the whole regime is going after satire and those in the cultural fields.
Mary Anne Franks 12:34
I think the incident, if we’re gonna call it… I need to figure out a word to call this, but the taking of Kimmel off the air is such an interesting flash point in this rising moment where we’re seeing the mask increasingly coming off from the Trump administration. For a while, it’s been clear to those who are paying attention that when Trump says, “free speech,” when Trump says, “we’re fighting antisemitism,” we know that he’s not meaning those words in any way that actually makes sense, but you know, there’s enough plausible deniability, or there has been for some time, that I think some people still wanted to participate in that kind of theater, that that’s what was happening here.
But when you cancel the show of a really popular comedian, it starts to feel different, I think, for the general public — it starts to look a little different. It was one of the rare moments where the general public was aware that something strange is going on — that we’re talking about free speech, we’re talking about being opposed to cancel culture, there’s been this long standing narrative that it’s the liberals and the left and the woke who are constantly getting offended and getting things canceled, and then suddenly you have, at the behest of the government, a popular show being yanked off the air for a statement that didn’t even come close to being offensive or inaccurate, or any of the things I think might have been plausible grounds to have a show pulled.
Then you saw the Trump administration attempting to trade on that kind of conflation between private and public to say: Oh, it’s not our decision. We didn’t make this happen; It was just the decision of the network and what have you. But of course, that was contradicted by the FCC Commissioner saying we can do this the hard way or the easy way. I think the reason why the reaction was different was because it was harder to play this off in the way that I think the Trump administration has attempted to play a lot of their censorship and really authoritarian maneuvers.
It was a flashpoint, and it was one where I think it was quite important and profound that the public did respond in such a kind of coordinated way, and that you even had some people on the right, some Republicans, speaking out to say: This is not what we do. So I think that’s interesting. It’s showing some fissures, it’s showing some of the cracks in this kind of regime. But it’s still really terrifying that it happened at all, and that, of course, it’s not resolved in any kind of sense. It’s just one point at which there was a pushback, because there seemed to be visibly, so many things wrong with it.
Sam Goldman 14:56
Yeah, I think it’s definitely one of those cases of like they’re in a position where they’re remaneuvering and figuring out how to do more of that, and this time be successful; how they can skate around the potential pushback, or it even being something that’s talked about. I think that’s a really important point. One of the things that we’ve seen, Jimmy Kimmel was definitely, you know, it was outrageous, and it was it was right and righteous that that people spoke out, but he’s not the only instance of such censorship.
That’s definitely worth exploring; whose speech is seen as, like, precious, and we can’t go there, versus, whose free speech is more expendable. We’ve seen that only heightened in the recent weeks. I wanted to get your thinking about kind of how swift this free speech crackdown has gone, and how that might resemble, in some ways, McCarthyism. You have Jane Fonda and all these other I think it’s like 400, 500, in arts and culture who have signed on to this statement for First Amendment free expression. As somebody who’s been studying it, where is this similar to the Red Scare suppression, and how is this diverging and going further?
Mary Anne Franks 16:18
Yeah, the similarities are pretty eerie, especially in light of the Kimmel incident, really highlighting how the entertainment industry is getting sort of roped into this as well. I think that’s one of the reasons why people remember or study the McCarthy period, because of just how far it extended. Maybe, had they stopped with trying to censor teachers and students and administrations in that sense, maybe it wouldn’t have become such a cultural phenomenon, but by the time it went to Hollywood, then it got people’s attention, and it was again, one of those moments where it breaks through some of the political polarization, because now you are going after things that people like and find entertaining and thought of as maybe not political, that are suddenly becoming political.
So I think it very much resembles it in that sense. In many ways it resembles that, because you have the caricature almost now, of McCarthy screaming at an endless number of individuals, and it’s that kind of quintessential overreach and this kind of madness that takes over the censor at some point, where they see the enemies everywhere — that paranoia, that fear, that cowardice just becomes so visible. And truly, if we look back at that period, that that seems to be what actually did it in, because there was overreach, and there was enough of a pushback from the larger population, and something like that is happening, maybe, now.
But part of what makes it different, and I think more insidious, is that this isn’t really just coming from sort of a one man crusade. Not to say that McCarthy was alone in what he was after, but he really did sort of typify a movement that was mostly about his own, maybe delusions or paranoia, so he was really sort of in control of it. When he became a figure of ridicule, I think that a lot of the rest of the resistance sort of happened on its own. Here it’s so much worse, because it’s coming from the very top of power. It’s coming from Trump himself. Unlike in the McCarthy era, the Trump administration has got its tentacles everywhere.
So he comes into office, and immediately it puts Elon Musk in charge of things, he puts people from the entertainment industry and from the tech industry into his administration — it’s everywhere. This is someone who’s really controlling everything, and he’s bribing people outright. He’s telling newspapers and outlets: If you don’t do what I say, I’m going to hurt you. If you do what I say and you’re very nice to me, then I’m going to give you favors. I don’t think we’ve really seen that kind of narcissism and control and pettiness coming from the executive office.
Nixon was similar, but this seems like that times a million, and it’s coming from all areas, and there is such a cultic attachment to Trump that I think you just didn’t see before in the McCarthy era. It’s worse in that sense, it’s much more comprehensive. It’s much more insidious. The attachment that people have to their great leader is much more like the attachment many people have to dictators and authoritarians than we saw even in the McCarthy era. It has some similarities, but I do think it resembles other countries’ descent into authoritarianism even more than our own.
Sam Goldman 19:13
I think that breakdown is really helpful when you think about how much influence they’ve already exerted because of how quickly they’ve been able to consolidate power. I think it’s stunning. We don’t even talk about, in like, mainstream press anymore, you don’t see stories even about book bans anymore. It’s like that’s an accepted norm. The goal posts for them keep moving further and further as things get more accepted as part of the new normal American life.
I think that comparison is deeply disturbing to many people, and I think that there is a moment when many people are waking up as well. For a lot of people, unlike yourself, who don’t study this all the time, the period right after the horrific murder of Charlie Kirk was a wake up call that this isn’t about free speech. From the people who called for, like, mass firings, you want journalist silenced? You want somebody who just posted something benign to lose their job? There was this whole campaign, and that’s just from their base being activated around this idea of censorship.
But then not too long after, was it a week? — correct me on time — he then did the “Antifa” executive order. That was on a Monday the 22nd maybe, and then that Thursday came out the national security memorandum. I wanted to get your thoughts on how people understand just how ominous these moves are in terms of dissent and free speech and the comprehensive quality that they’re posing.
That resonates so so deeply. And I think that the more that people can believe their eyes, the better. At a time where even the notion of truth and something being knowable is under attack, I feel like the more that people can trust what you’re seeing, and that is real, and yes, it’s frightening, and that it still is happening — like, you are not crazy, this is crazy making. One thing that has struck me about the NSPM7 overall is this broadening of “terrorism” to go after ideas; not even like words, but just the idea that somebody could hold or have — the targeting of whole belief systems like the criticism of race or gender hierarchies, or even the listening of other people’s ideas that if you listen to something that may have offered a critique on traditional morality or something like that, you are now suspect. I’m wondering how you see this directive in transforming, you know, the landscape of speech and of dissent?
Mary Anne Franks 20:52
It is hard to actually measure just how bad this is. It is something that people who study authoritarian decline or the ascent of authoritarianism talk about, that one of the most difficult things is that we have a tendency, I think Americans certainly have a tendency, to think that authoritarianism happens dramatically; there’s suddenly a moment where everything changes. We like to believe that if that happened to us, we would know it, and we resist and it wouldn’t happen here. The hardest thing is to talk about, well, you know how gradual it can be, in some sense, but also, by the time a few gradual things have happened, then it’s very slow, and then it’s very fast.
We’re in that very fast moment right now, and then it’s hard to catch your breath, because there’s so much happening all at the same time. Again, different from, I think, even the McCarthy period, and different from really, any other period we’ve seen. It’s just this assault on language itself and changing the meaning of words. Think about the McCarthy period as being this kind of moralistic moment where it’s true that you’ve got the elites in power who are saying: Well, there’s all this immorality and communism and all of these things happening, we just have to shut it down.
Whereas the Republicans have built up this reputation as being: We’re the opposite of censorship; We’re the ones who were trying to embrace all ideas, everything; We’re not afraid to embrace ideas. They traded on this narrative for years now. That has been joined by liberals and civil libertarians and others who have tried to say that the liberals or the left is woke, and there’s cultural censorship everywhere. The quiet part that is now being said out loud is: Well, if there’s cultural censorship, then the answer is government censorship to shut down the cultural censorship.
That was always going to be the next step, whether people wanted to admit that or not. The problem with conflating culture and government that way is that you start to lose that distinction. If we care about what the First Amendment actually is meant to protect, which is to protect all of us from government censorship. The moment we start chiding each other for cultural censorship, we don’t recognize that what we’re doing is we are making it easy for the government to then come in and say: Well, there seems to be a lot of cultural censorship going on now, so we better start repressing the censors. There is no other word for that other than government censorship.
So we’ve been sort of sleepwalking into this, I think, to some extent, and it makes it hard, because now all the definitions of things are scrambled. So any criticism of Trump and his regime becomes itself a form of censorship, it becomes fascism, it becomes all these terrible words you can think of, and everything he’s doing to stop that from happening — stop the woke mind virus, or leftism, or whatever we’re calling it now, Antifa, whatever we want to call it — becomes the enemy. So that part is very familiar, that is what every authoritarian would say, but it’s preceded by this long — at least decades long, it goes back, I think, a bit further than that — to say, no, no, we’re just we’re cracking down on the sensors.
We’re cracking down on the on the people who were intolerant. So don’t think of us as being authoritarians, we’re actually the liberators. So everything is scrambled, and we’re going to have to do a lot of work to unscramble that and to say: What do these words actually mean? But also, you know, I find myself thinking — and I’m not the first person to point this out, but, and this was true in the first Trump administration as well — the number of times where I think about how the insights of people who study domestic violence and who are experts in domestic violence dynamics, that we really need to be looking to those insights right now, because that’s the dynamic that we’re in.
One of the hardest things to get people to understand is that you have to stop listening to what the abuser is saying. You have to look at what he’s doing. So just stop listening and start just watching what they’re doing. Otherwise you will continue to be gaslit. You will continue to be told that, you know, up is down. So you’ve got to just simply look at what he’s actually doing, call it for what it is, and see it for what it is.
It really is that direct. I’m back to this feeling that I think the first Trump administration, I think, really laid the groundwork for, which is to empty these concepts out of their meaning. They got thrown around so often — the idea of thought police and the censorious left and all those things — that part of the strategy was: When the right does it, those words won’t mean what they meant anymore, and so you won’t see them for what they are. Because once you polarize people enough, once you really tell them that you know there’s good and there’s evil, all the other things we have thought were markers that we should keep in mind about where our country is heading and what democracy is, and what freedoms we have, all those get pushed aside.
I think of it sometimes as how much commentary right now is focused on calling the Trump administration hypocritical, and by saying: What you said, you cared about free speech; and: You said that you were anti-cancel culture, this is hypocrisy. I understand where those critiques are coming from, but I think they’re wrong in the sense that this isn’t hypocrisy, because Trump has always said what I mean by everything, whether it’s free speech, whether it’s democracy, whether it’s elections, is: I win. That is the only thing he has ever meant. He said as much when he was asked if he was going to respect the results of the election, and he says: I’ll respect them if I win. He told you everything that we needed to know about how this was going to go. Free Speech means free speech for Trump, and democracy means democracy for Trump.
All of these things only mean something with reference to whether he wins. So they are being perfectly consistent in that. The only thing that was deceptive, and the only thing that is throwing people off is if you ever took him seriously when he said he cared about any of those values for any other reason, other than wanting to win and making sure that he comes out on top. So I think we really have to reorient ourselves around that idea, that we’ve got to stop thinking It’s hypocrisy. There is one very explicable principle that you can apply to everything the Trump administration has done, and it’s that he wins, and people like him win, and everybody else loses.
So once we’ve done that, we then realize that that obviously is absolutely antithetical to freedom of speech and the First Amendment, because what these were supposed to teach us, first of all is, don’t let the government intrude in certain areas of our liberties, but also whatever principle we’re going to have about freedom of speech or terrorism or whatever attacks on democracy, they have to be true regardless of who is in charge, right? The principles we’re supposed to create as democratically defensible principles shouldn’t matter which party is in charge or who wins. That can’t be how we do this. I think back to… I think it was during the Kavanaugh confirmation, there were all these protests over his his nomination, and Trump got very angry about it, and he said: You know, I can’t believe that there’s all these protesters, and you don’t even know which side they’re on.
Again, he tells you exactly what he’s thinking, which is: I think there should be protests as long as it’s in the right direction. That should be obvious to everyone, that you don’t want that as your principle. Protest is allowed if you’re on the right side. Dissent is allowed if you’re critiquing the Democrats. But here we are, it’s tribalism all the way down. It is really fully on screen with these memos, and this isn’t the first one to really try to portray it in that way, but I do hope that people see that that is what this is. It is about, saying: Anyone who’s an enemy of even thoughts, even if you are thinking the wrong things, you are going to be punished.
That would be chilling for people, and supposedly the people who are in this administration now, when they kept accusing Biden of doing it, when they accused Obama of doing it, and it really sounds so basic and so simple, but it’s truly what we’ve lost control of, is to say: If you were imagining a Hillary Clinton, a Barack Obama, a Kamala Harris, a Joe Biden, saying any of these things that you know: I’m determining what the word anti-fascism means tonight. I’ve determined that these people are terrorists, and I’m going to lock people up for what they think.
You know what the answer would be, supposedly, if it was coming from any other source. That really should be the end of it. If it would terrify you if it was the other side doing it, then you shouldn’t support it. And as listeners of this podcast will know when you make that the principle, when you make the principle, is you have to support us or else, then that is fascism. There isn’t another word for it. That is where we are. If the person in charge, if the people with power, are able to simply say: Anything that opposes us is going to be illegal now — then there isn’t really any way to explain that other than fascism.
Sam Goldman 29:56
I feel like if people are able to take in the totality of what you’re saying, even as scary as it is, I think that it isn’t hard to imagine now, Trump using this to conduct even more repressive actions against those who maybe defend immigrants with nonviolent civil disobedience, as he’s doing in Chicago, or who mobilize in other ways against Trump or his policies, or even dare to state the truth, illustrated by any aspect of NSPM7 — any of the indica of bad thought ideas, It kind of underscores that painful reality that you know, we are being ruled by a fascist — one who’s already clamped down the foundations of fascist order and is hell bent to spread and reinforce the tentacles of that, to really eliminate any and all opposition.
That doesn’t mean that it’s inevitable that he will win, or that he will succeed, or that he’ll be able to do everything he hopes to do. But in the same way that you were talking about the parallels between what we see happening from our government mimicking that of an abuser in an intimate relationship, I think that our tendency, and ours — I’m speaking broadly as American people — is to [think]: you know, well, that was the last time. That was the last time. It’s not gonna get worse; That was a really bad day. When that really bad day happens over and over and over again, that’s who they are. The more that we’re able to see that, then we can act accordingly.
Mary Anne Franks 31:34
I think that’s right. There’s one view that says that when you go so far… that when Trump has gone so far that even sometimes Republicans have said: Hey, this is too far. Or Pam Bondi is now literally saying things that would make you flunk out of law school to say: Oh, we’re gonna go after people for not printing out flyers, and we can use the power of the federal government to do that. You have people saying, Oh no, no, that we don’t like Pam Bondi now. And people think: Well, that’s good, there’s even some dissent among the Republicans.
I actually worry that that’s worse, because in some ways, it makes it seem as though: No, no, there’s some overreach, and we’re being very reasonable about highlighting that that’s overreach. It’s legitimating. It’s almost like saying: Well, that was too far, but in the future, he’ll be constrained. Exactly as the sense of that critical battering incident, and then trying to say that: Well, it won’t get that bad again, he’s learned his lesson — which Trump himself never tries to say, but his handlers often do, and his apologists often do to say: well, there’s too much course correction, but we’ll get back on track. You see, we’re being reasonable.
So I almost worry that in some ways, that’s going to legitimate this enterprise more, that even when there’s these really extreme examples, that there’s some way to explain how: Yes, even we on the side of Trump agree that that’s too extreme, so you can see that you can trust us. The answer is absolutely not. Because you are willing to say there might be an outer boundary on something extraordinarily way beyond the boundary, does not mean that you’re being reasonable. If you don’t go after the heart of this project itself, which is, again, to just impose the will of the person at the center, there is no redeeming that project, and it’s got to be rooted out completely. I do worry that there’s going to be this sense of trying to make it seem more reasonable, like in the first Trump administration, when he had all these handlers trying to translate his speeches and his declarations into something that made sense and was defensible, it’s getting so much harder to do that now, as he’s kind of like literally deteriorating before our eyes. It’s getting really hard to do that, but you still have people trying to make it seem as though there’s something here that looks like politics as usual, when in fact we are way beyond any sense of democratic, sort of dissent and opposition. We’re way, way past that.
Sam Goldman 33:34
So, so true. I wanted to talk about a very significant free speech case that I believe was ruled on this week. A federal judge ruling that Trump officials unlawfully targeted international students over political protests, over pro Palestinian speech. I was wondering if you could walk us through that a little bit, and what are the implications for life on campuses, I guess is the best way to put it at this point.
Mary Anne Franks 33:59
It’s an incredibly important case. Important not just because it got to the right result, but important because of the way that it is done and because of who it comes from. The judge in this case is not a Democrat, if we want to speak in those terms, it’s a Reagan appointee. This is someone who’s seen a lot of things and is a kind of a classic conservative in many ways, and in that spirit, is appalled by what the Trump administration has been doing, specifically with regard to what the AAUP, the American Association of University Professors, who brought this case, what they have referred to as ideological deportation.
It’s really important that they came up with a description for what this is, because, again, it’s more important now than ever to say things as we mean them — for these phrases to mean something. Because what the Trump administration has tried to do by targeting these students — so this is Mahmoud Kahlil, this is Ozturk, the Tufts graduate student, these are these other high profile cases, but also some that were less visible of just being sort of snatched either in the middle of the afternoon, or as they’re coming home from dinner and being told that this is about their immigration status — it is meant to be this kind of way to distract us from what’s actually going on here.
The fact that Trump is attacking non citizens allows him to do multiple things at one time. One of them is is to try to say: Don’t worry, you citizens, you don’t have anything to be worried about, this isn’t about their ideas, this is about the fact that they pose a threat to national security. So, first you get to other certain groups of people who are already a vulnerable class, which is always going to serve the purpose of telling everyone else that you don’t have to worry. It’s a divide and conquer kind of strategy; it’s just those people.
It gives you a way to make it look less like what it actually is, which is censorship — we don’t like their ideas, and so we pick them up and we put them in a van, and no one knew where they were for hours. If we’re stripping away all the rhetoric here, we know what that looks like. Again, believe our eyes. We know what that means if we saw this happening anywhere else. Someone is targeted because of something they said, something they wrote, and they’re disappeared. If it weren’t for the outcry and for the really tenacious lawyers and the friends and spouses of these individuals, we wouldn’t necessarily have known what had happened to them.
So you have these people who have just a really concerted effort to make sure that these people weren’t disappeared for very long, that we even know what their fate was. Then you see that there’s this obscure provision in the national security law that says that the Secretary of State gets to make these determinations about people who are just, based on their existence, essentially, a threat somehow to national security. So you get it all — what would otherwise look completely clear as to what’s happening here, a clear exercise of authoritarian control starts to get repackaged as: No, no, it’s just about national security, or: It’s just about non citizen status — and you get to portray them as somehow already in a category that doesn’t get full rights.
What is so important about this Reagan appointed judge saying in this case, to the extent he says, that the Trump administration is trying to argue that the First Amendment changes with regard to whether you are a citizen or whether you are not a citizen. He says: The answer is, we don’t do that here. The First Amendment applies to everyone. Now he’s not confused about the fact there are differences and the processes and the kinds of enforcements of those rights, but he says: As a matter of general principle, the First Amendment applies to everyone, and when the government looks like it is attacking people on the basis of their ideas, that’s what it is, and that is unacceptable.
He’s extremely clear about this. So it’s a vindication, first of all, of that very general principle, which isn’t just about the substantive rights of how we want to make sure that everybody can speak their minds freely here, it’s procedural as well, because what people, I think sometimes, don’t understand is: If a non citizen has fewer first amendment rights than a citizen, and you have roving gangs of armed, masked, anonymous officials who are entitled or empowered to grab anybody they see that is saying the wrong thing, when they grab you, you’re not gonna be able to say that you’re a citizen and you have all these rights, because they’re not going to let you — physically, you will not be able to make that argument for yourself if they’ve determined that there is a category of someone out there who we could just take without any due process.
Once you do that, all of us are at risk. So even if you don’t care on a substantive level whether people who are non citizens have the same rights, you should care if you are at all concerned about your own rights being infringed, because once you give the state the power to scoop up anybody that has been accused of wrong-think, there will be no distinctions between citizens and non citizens. My own view is that you should care about this happening to anyone, but even if you don’t, you need to care because it will happen to you next.
To have an opinion like this that really reminds us of how law used to work, at least most of the time — that judges didn’t used to be seeming like they were trying out for Trump and hoping to get a better position or some favorable treatment, or were cowed by threats to their families, to really have someone to say: This is the response anyone who cares about democracy in the United States should have, and we should also take note of how far we have fallen under Trump. It’s 165 pages or so of an opinion, and I recommend that everyone read it. I know that’s a lot, but it’s really worth reading all the way through. But I also want to take note of how extraordinary the beginning and ending of it is. There’s a postcard, apparently, that was sent to chambers. It’s a postcard that’s handwritten that says Trump has… I think it says: He’s got tanks and he’s got.. I forget what else it says, but it’s basically something vaguely threatening about, like: What do you have?
The judge photocopies this postcard and puts it at the top of the opinion, and also begins a response to the anonymous individual who has sent that postcard, saying: Here’s an example of, as a judge, I have nothing by myself, as a citizen, as a member of the United States, as a judge, as part of this country, here is what I have: I have the force of law, and here’s what it looks like in practice. 165 pages. Then and then at the end, just a beautiful ending, readdressing this person to say: You should really think about what this is, this opinion, this process that brought us here is what America is supposed to be about; This is something that you should care about, and you should care about it because this is the exercise of democracy.
I’ve never seen any opinion begin and end in this way, but it’s such a direct confrontation of the moment we’re living in, when someone is sending postcards to judges’ chambers in an attempt, probably, to intimidate them, and for a judge to take that full on and say: This is all part of the same thing, we are all part of the same American project and you have lost your way. It’s such a gentle, in some ways, confrontation to say: Let’s get back on this path together.
Sam Goldman 38:05
I really appreciate you bringing that up, Professor Franks, because that Judge William Young wrote: “Alone, I have nothing but my sense of duty. Together, we, the people of the United States, you and me have our magnificent Constitution. Here’s how that works out in a specific case.” I mean, there is something on a personal level, of someone’s ability to be targeted and be able to have that kind of response. I think it is a model. I have no illusions. I know that this will be challenged. I know that where it heads is not towards it being back in the hands of somebody with principle, but I do think that it is a lesson, not just to other judges, but I think to all of us on what it means to apply principle at this point, and what it looks like to be brave. It’s frightening that this is an act of bravery.
Mary Anne Franks 39:54
And just because I don’t want to misquote, and I didn’t want to leave it partial that I’m looking at the postcard now that it says: “Trump has pardons and tanks. What do you have?” And that the response, as you said, is: “This is what I have, you know, not by myself, but through this duty that I have.” And that the ending of it is the judge, Judge Young saying: “The next time you’re in Boston, stop in at the courthouse and watch your fellow citizens sitting as jurors reach out for justice. It is here and in courthouses, just like this one, both state and federal, spread throughout our land, that our Constitution is most vibrantly alive, for it is well said that where a jury sits, there burns the lamp of liberty.”
What I’ve been trying to say in my writings, first in my first book about what I called constitutional fundamentalism. So in the book, ‘The Cult of the Constitution,’ and more recently, in ‘Fearless Speech,’ I think some people reading my work very critically are saying: Well, this is someone who doesn’t care about the First Amendment, who thinks the Constitution is bad and wants to get rid of it — and I really wish people would read the books, or at least read some parts of the books, to see that that is not at all what I am saying.
What I am trying to say is that we have to be on our guard against the use of the Constitution to crush other people — that that is perfectly possible for people to invoke the Constitution for incredibly authoritarian ends, just as much as it is for them to invoke it for positive and democratic ones. What my work has always tried to do is to sort out, how do we see which one of these things it is, and how can we intervene if the Constitution is being used to suppress and to exploit and to subjugate? I maintain that the way that you do that, or at a minimum, is you have to think about power. There is no such thing as an abstract evaluation of the operation of the First Amendment. There just isn’t.
What we as Americans, I would say, have kind of mythologized ourselves into believing, is that that we are a country that cares about free speech, and we’ll always stand up for it, and we congratulate ourselves about that all the time. I do think to some extent, we’re taught that mythology, in part, because it’s intended to not notice when that isn’t true at all. We keep saying that that’s true, and maybe that’s starting to become different now, but most of us were taught that the First Amendment makes us different, and it means that we’re the most protective free speech country in the world, which measurements of global freedom of speech and press freedom show that we’re nowhere near the top, and we haven’t been for really ever.
But we keep thinking that that’s the case. Part of what I want to point out is that if what we mean by protections of the First Amendment mean that: Well, if someone violates our rights, that is the government violates our rights, we can probably at some point vindicate them, in theory, by going to court and eventually getting a good result. That’s the best case scenario for that, and that’s not a good case scenario. That’s not a way to live. The idea is you can litigate your way through the enforcement of your freedoms, then there’s no real freedom here, because that in itself depends on power, and it depends on money, and it depends on all of these things that we cannot assume people have. And by the time any of that happens, that whole process to get us there means that we have had our rights violated right up until the point that there is a court case that says: Oh, they shouldn’t have done that.
That is a poor excuse for an actual robust freedom of expression, and we shouldn’t settle for it. The only way that we’re going to get at a more robust view of what freedom of speech is in a way that, for lack of a better word, binds the government so that the government is afraid of trying to encroach. Because if the government isn’t afraid, then they just keep doing it, and they keep doing it — they keep throwing people in jail, or they keep deporting people — even if you start to unwind that in a series of cases that may resolve in a few years, that hasn’t done anything to deter the next time a government tries to do exactly the same thing.
So we collectively need to think about that aspect. We need to think about, how can we actually figure out ways to deter the government from engaging in these infringements, as opposed to congratulating ourselves that maybe at some point in a court case, eventually they will be vindicated. Trying to think about that active sense of enforcement is one part. The other part is being aware of how important it is to distinguish between the government and non government actors. Because what has been, as we were talking about, propagandized to us for some time, is that people who reject certain ideas — let’s say you are a university student who’s protesting a judge, or you are someone who’s out in the streets protesting police brutality — the idea that that gets portrayed as censorship, we should really halt that and to say: No. When the people reject ideas, whether you think they should reject them or not, when the people do that, that’s part of their freedom of expression.
We are not just free to say things. We are free to criticize things. We are free to reject things and to ignore things. If we want to vindicate our free speech rights, we have to understand that what it gets coded as censorship, when it’s the people doing it, it’s not censorship. It is a choice of freedom, and we have to defend that, even if we think that people should be more open minded or tolerant. And the other reason we have to think about that and think about power, and what narratives are contributing to power, is that there is this belief, and there has been been a belief that the more oxygen and freedom and free reign you give to, let’s say, Nazis or white supremacists or misogynists, that that means that we’ll have this kind of pressure valve theory, where we’re going to get more democracy and we’ll reject more of those ideas.
That isn’t really how this works. And if we ever thought it was, let us just take a look around us. Sometimes when you give free rein to Nazis and misogynists, you just get more Nazis and misogynists. That is the only thing it achieves. So when we are in that realm of the people deciding for ourselves what ideas we want to promote — not as government actors, deciding what to punish — that’s a very different question.
Those of us as private actors trying to figure out what to promote and what to reject and what to highlight and what to critique, we should really keep those things in mind, because if we really want a society where we appreciate freedom of expression for all people, then we’re going to have to reject in the realm of cultural opinion and universities, yes, and places that you’re supposed to learn how to think critically and think about things like equality and the demands of democracy, then we need to be sure that we have all that freedom to say, not only: I think these things are true — but: These things are false, and these things are detrimental to democracy, and we have to be as full throated in our defense of that right to discern between those things as we are of anything else.
Sam Goldman 47:26
As we close out our conversation, I wanted to get your thinking on what it means to advocate, defend the right to free speech and free expression in this moment. A lot of your writing has talked about this right is mediated by power, and what does that mean in in this moment?
I want to thank you so much for coming on and breaking this down and sharing your expertise, your perspectives, your insights. We are going to put a link to ‘Fearless Speech’ in the show notes. For those who want to read more, connect more with your work. Where do you want us to direct people?
Mary Anne Franks 48:19
People can definitely check out the book. They can also check out my first book, ‘The Cult of the Constitution.’ They can also check out my CV, which is available, and they can see that I’ve written articles about these issues, sometimes in Popular Press as well as in law reviews, and that would be a good place to find some of those writings.
Sam Goldman 48:36
Thanks so much.
Mary Anne Franks 48:37
Thank you.
Sam Goldman 48:38
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