Mary Anne Franks is no stranger to fundamentalism. Growing up in small-town Arkansas as the biracial child of a Taiwanese mother and white father, she found a sense of community at her conservative Southern Baptist church and took comfort in its traditions. But as Franks got older, it didn’t take her long to notice that so-called Christian concepts like forgiveness and tolerance are contradicted by the text of the Bible itself, particularly in the Old Testament, where pettiness, violence, and the subjugation of women are among the most prominent themes. And yet many believers within Franks’s community insisted on taking the Bible literally.
Fast-forward to today, and Franks is a prominent legal scholar, victims’ advocate, and law professor at the University of Miami School of Law, noted for her work on gun violence and digital civil liberties. As the legislative policy and tech director at the Cyber Civil Rights Initiative, she’s worked tirelessly to combat the scourge of online nonconsensual pornography—also known as revenge porn—and helped spearhead some of the first laws in the country that criminalize the practice.
But Franks’s work is often met with criticism from advocates of both gun rights and free speech, and she’s faced hostility and outright harassment from online detractors across the political spectrum who speak of the U.S. Constitution as if it were a sacred document bequeathed to humanity by a higher power. For Franks, such arguments echo the Bible-thumping absolutists of her childhood, and in her new book, The Cult of the Constitution (Stanford University Press), she draws compelling parallels between religious fundamentalism and blind reverence for America’s founding document.
I recently caught up with Franks to discuss the impact of constitutional extremists on democracy, and in particular, the marginalized communities for whom democracy still doesn’t work. Below is an excerpt from our conversation, edited for length and clarity:
Fast Company: When was the moment you realized that there was a real similarity between religion and the law in terms of fundamentalist thinking?
Mary Anne Franks: I think it was really in the heat of working at the intersection of two very polarizing and passionate sections of the law, and that’s the First Amendment and the Second Amendment. I was trying to talk about gun violence and the relationship of Americans to guns on the one hand and the relationship of Americans to free speech on the other. What I started to see was there was a lot of surprising overlap between the way that First Amendment absolutists and Second Amendment absolutists would speak about it.
And so I saw a parallel between those two, and that kind of reaction really did remind me of Bible-thumping in that very stereotypical sense of people who use the Bible in the same way—to pick out the parts that they like and support the views they wanted to get to.
And that really started to happen because I sort of experienced the brunt of how First and Second Amendment fundamentalists treated heretics . . . It’s one thing to say “I disagree with this person or I think she’s wrong or I have a different interpretation,” but instead, much of the response I was getting was: “You hate the Constitution. You want to take away the First Amendment. You want to execrate the Second Amendment.” It was that same kind of hyperbolic, highly emotionally charged reaction that you hear from people who are really invested in something on a level of faith as opposed to a level of rationality.
FC: And you got it from both sides, right? One of the themes that comes up in the book over and over is that blind reverence to the constitution infects both sides of the political spectrum.
MAF: Yes, it’s really all across.
FC: When you introduce a word like “cult” to describe the Constitution, I’m sure that’s going to be controversial. Do you find one side or the other is more resistant to the use of that term?
MAF: Before the book even came out, the title was announced, and I promoted it on social media, and there were already a few blog posts written about it and about how I hate the Constitution and how anybody who speaks about the Constitution as being a cult is obviously un-American. And these are people who literally couldn’t have read the book yet who are responding, and it was such an illustration of my point. People could write entire blog posts even though they haven’t read it
FC: You mention [in the book] about how very few people have actually sat down and read the Constitution.
MAF: Exactly, which is another irony—because it’s not that long, first of all. And it’s so amazing that there wouldn’t be some kind of relationship between the vociferousness of our claims and our actual familiarity with the text. So it doesn’t seem to bother people that they don’t know very much about the Constitution. People have feelings about the Constitution, and that seems to be enough. In terms of whether it’s worse from one side of the other, I’d say it’s really kind of uniform. People get deeply offended when you speak about the Constitution as though it were not just a completely worthy object of reverence.
FC: Talking about the history of the Constitution and that section of the book, I was struck by how you describe the Constitution as a propaganda document. You talk about the Founding Fathers as being these elite white guys, property owners, who were basically protecting their own self interests, and yet they were able to convince everyone that they were creating a democracy that worked for everybody. Do you see parallels with that sort of thing happening today with the way media operates? You often hear that people don’t tend to vote in their own self interests.
MAF: In one very powerful sense, yes. The trick of a really effective ideology is that you convince—and this goes back to the cult idea, which I meant quite literally in this sense. Cults are fascinating because they’re not just people who are fully committed to a certain idea. There’s always, in any cult, a class of elites that exploit people who do believe in this way. So you have a real political dynamic in every cult. There’s always going to be a class that takes, and it’s always going to take from another class, whoever those subordinates happen to be. And so it’s always going to be in the elite class’s interest to promote this propaganda that says, no, you’re exactly where you need to be, and whatever hardships you’re experiencing, that’s part of this grand narrative. This is kind of how religion works in general.
FC: You reserve a lot of criticism in the book for free-speech fundamentalists, including groups like the ACLU. We’re often told that the most vile speech deserves protection. We accept it as a given that bad speech is an unfortunate side effect of free speech. Is our definition of free speech wrong or is it a flawed concept to begin with?
MAF: Well, that’s complicated, right, because by the time you look at over a century of beliefs about free speech, that becomes the reality. But the thing that troubles me is that gap between what people think free speech is doing and what it actually has done in practice, and specifically here I mean when people say things like, “Well, of course we have to protect [bad] speech, or that’s just a byproduct—that you basically have to protect all speech except for these tiny categories.”
Well, that’s just, as a descriptive matter, false. It’s simply propaganda, very effective propaganda, to say, “Oh, we have to protect bad speech, because otherwise we can’t protect any speech at all.” If you look at all of the carve outs, all of the things that the courts have over the years said do not get First Amendment protection, it’s actually quite a large category, or I should say categories—if you look at obscenity, at fighting words, at threats, at defamation, at child pornography.
Then, you look at all of the categories that are not expressly said by the Supreme Court to not get First Amendment protection but that we see does not get it because we engage in regulation all the time that is not challenged or not declared unconstitutional. Think about the entire body of privacy law, which is all about restricting access to truthful information. If we think about rules against perjury. If we think about laws against conspiracies. If we think about securities regulations. If we think about food and drug labeling. There are so many things we don’t even think of as free-speech issues. So it’s the fact that so many people walk around thinking, “Oh, free speech means you just have to deal with all of the bad stuff.” We clearly do not think that is true. If someone says, I want to label my product, which actually has heroin in it, as aspirin, because I feel expressively that that’s what I want to do, we’re not going to let you do that.
Free speech has functioned in practice pretty much the way all things in this world function, which is as a rough sort of accounting for costs and benefits. If it’s this really terrible speech and we’re not going to protect it, and we never have. The only debate, really, is over what counts as terrible speech.
FC: I think revenge porn is a good example of this. We all can agree it’s bad, but it’s been so tricky to figure out A) how to stop it, and B) how to regulate the companies so it doesn’t happen.
MAF: I think that’s where the ACLU and others come into play, because they really have functioned as the kind of priesthood of the First Amendment. So when the ACLU shows up in a courtroom and says [this revenge porn law] violates the First Amendment, what the ACLU means is they don’t like the law. But what they actually say is it violates the First Amendment, and they convince so many people—and that’s really across the political spectrum—that revenge porn is protected free speech.
And that’s really one of those moments where you have to step back and say: how did that become possible? Because truly, nonconsensual pornography is just like the vast majority of privacy regulation that the ACLU will fight on behalf of . . . things like your genetic information or your geolocation data. The ACLU and the Electronic Frontier Foundation have done fantastic important policy work and advocacy to protect those forms of private, true information from being released to the public generally. Why would you not have these same attitudes toward highly sensitive personal forms of private information including naked photos and images? And the only answer I think we have is that we just don’t count those things as being serious, and there are a lot of disturbing reasons for why that’s the case.
FC: You write at the end of your book that despite all the issues with the Constitution, it’s still worth defending. Why?
MAF: A couple of reasons, and the first is pragmatic. That is, I don’t see realistically that we’re going to get away from the Constitution. It’s too entrenched in our public consciousness. It’s embedded into our identity. There really isn’t any way to start over. It’s possible that, at some point, we’re going to be so disillusioned as a country that we might get to a constitutional convention. There might be some amendments, but those are really difficult processes to undertake, and even if they do happen, we’re still going to be dealing with this much more emotional than rational attachment to the Constitution and to the Bill of Rights in particular.
So that’s the pragmatic reason . . . The other part of it is that I actually think, as with most texts, you can find the best parts of the texts and you can reorient your commitment to them. So my sense is that the Constitution, like the Bible, has an antidote to fundamentalism written in it. It was probably not intentional. I don’t think that the drafters of the Fourteenth Amendment were particularly good people or particularly forward-looking. So they were dealing with a crisis of a historical moment.
But that’s the wonderful thing about texts. Sometimes, the text exceeds the limitations of the human beings that write them. And in that text, it makes a promise: In the Fourteenth Amendment, it says we have an obligation to treat people equally. Equal protection of the law has to mean something. As I say in the book, that’s echoed in some pretty long-standing principles in religion and philosophy and ethics, which is reciprocity . . . Do I want the same thing for everybody, including my enemy? So take freedom of speech. If you want freedom of speech, you have to care that a woman is able to speak freely. You have to care whether or not she is inhibited or chilled from her speech because she is given rape threats, or her private photos are going to appear online, or her husband is going to beat her for speaking. If you don’t care about her, then you don’t actually care about free speech as a principle. You only care about it for yourself.
This story has been updated to correct a transcription error.