Friday, April 1, 2022
Mary Anne Franks, Speaking of Women: Feminism and Free Speech, Signs J. (2022)
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?” 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.” ***
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. 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.