[Music] - Welcome to the Aaron Harber Show.

My special guest, Mary Ann Franks, the professor who wrote The Cult of the Constitution.

Mary Ann, thanks so much for joining me.

- Thanks so much for having me.

- So, you know, I was fascinated by the book, and I obviously want to talk about it in detail, but one of the things I actually came away from was you do have a real love for the Constitution.

- I do.

- Talk a little bit about that because clearly, the book explores a lot of the history, the foundation of the Constitution as really a basis for white male supremacy, and you articulate how that has continued as well.

Tell me about your relationship with the Constitution.

I mean, obviously, as a professor of law, but personally too.

- Well, the short answer is that it's complicated, but as you say, there's a love there.

And in many ways, the reason why I wrote the book was because I was trying to sort out, at both a personal level as well as this kind of intellectual level, what does fidelity and love for the Constitution do to a person?

How can it be used in a wonderful way that can mean better things for humanity, better things for our society, versus what happens when you have a kind of affection or passion for the Constitution that goes in this very dark direction, that becomes very exclusive, very hierarchical, very troubling?

And that's really what I wanted to explore was what happens?

How can we make sure that the passion goes in the right direction?

- So, I mean, one of the things that you do early on is you talk about your own background.

And one of the intriguing aspects is your journey, your own personal journey, and one being brought up as a Christian and how you move to a different position.

But one of the things that you talk about, which I think is fascinating to me because it applies to so much today is when it comes to the Bible, how do you talk effectively to an absolute believer when the reality is the Bible has numerous contradictions in it?

So, what's your strategy?

- Right.

So, the parallel there is exactly as you say, that I grew up in a fairly religious fundamentalist tradition, Southern Baptist.

And what I noticed about the Constitution, and as I was studying it, teaching it, trying to advocate for it, was that the same kind of sort of divisive attitudes, that same kind of fanaticism that I noticed in my upbringing as a Southern Baptist was recurring for people as a constitutional matter.

So, how does one deal with it?

I think in one sense, what you're trying to do is you're trying to figure out why they're attached.

Why is this particular text, whether it's a Bible, whether it's the Koran, whether it's the Constitution, why is that the vehicle for so many people's passions and attachments?

What are they really getting at?

And what is happening in so many situations is that they're identifying with a document.

They're reading into it a kind of very personal reflection of themselves.

So, the kind of reading they're going to give us of those texts is going to be one that's quite indulgent towards their own kind and the people that they identify with, and it's going to exclude anything that interrupts their worldview.

And there's an attempt that I try to make in whether it's talking to people about the Bible or whether it's talking about the Constitution to say, well, what do you think is the vision that you have for who is being included in this text and who isn't?

And trying to find the best versions of interpretations of those texts and try to see whether people find them more appealing and really present them with more and more evidence of the parts of the text that they're tending to ignore.

So, with the Bible, it's really easy to get behind the kind of Old Testament, vengeful judgment kind of Christianity.

And it's a lot harder to remind ourselves of that non-judgmental reciprocity golden rule kind of Christianity.

The same thing is true about the Constitution.

Easy to talk about free speech and about guns, very hard to talk about equal protection and how everybody deserves the same kind of rights and privileges.

- So, using that parallel, how did you move on from your religion?

And from what you learned in that process, how can you apply that to interacting with cult members to use a short phrase?

- Right.

It's difficult.

And I don't want to suggest that it's not a difficult process because oftentimes, especially when we're talking about religion, but also when it comes to our history as a nation, we're talking about things that people have learned at a fairly young age.

So, that when I say that it's part of their identity, it's truly part of the formation of their identity before any of us are rational, right?

So, things that were taught as children about the founding fathers and how they're basically these divine figures in a way, that's a lot to unpack, I think.

But what I think really helps and what happened for me was seeing the contradictions, seeing how we were taught in church to be these examples, to be Christ-like, and then to see the kind of sexism and racism and just sort of ironic stories, right?

All of these stories about these really powerful men or male-identified figures, God himself, or Moses, or Samson, or whoever you want to take, being incredibly powerful but constantly having to battle the evil forces of unfaithful people, and how often it seemed to be the case that powerful individuals were presenting themselves as victims over and over and over again, and how strange that was because the net result of it was to leave powerful people at the top, and to crush everyone else, and to convince them that that was somehow part of a divine order.

And once that became clear to me, I think it was hard to unsee, and that's the kind of thing that I was also bringing to my sense of the Constitution.

You have wonderful aspirational language in the Constitution that reassures you everyone is being treated equally, everyone gets rights, but then you look at the reality.

Who was there creating this text?

Who was interpreting it?

Who was passing laws?

Who was applying the law?

And who has been benefiting over and over again?

Once you see it, I think it is hard to unsee.

- Well, that who is certainly white males, and certainly, those who read the Constitution.

And I want to ask you about that as well.

We realize that this Constitution applied to a very select segment of the population.

It didn't apply to women.

It didn't apply to people of color.

It didn't for the most part.

It certainly didn't apply to anyone who didn't own property.

So, I mean, it wasn't exactly the all-inclusive document that a lot of people think it is today.

So, what that brings me to is there really seems to be a lack of education in the sense I've had many discussions with people about the Constitution, and for the most part, very few of them have actually read the Constitution.

Or they may have read an amendment or an article, and that's pretty much it.

And what's your experience?

I mean, obviously, if you're teaching Constitutional law, the students are going to read the Constitution, but outside of that.

- Right, and I think that's where a lot of the problems really develop because this is also true in religious traditions, that there are many people who are very attached to the Bible who have really not read very much of it.

And it's that kind of selective reading where the problems really start because when you get any document that is capacious or passionate enough to endure for more than centuries, there are going to be parts of it that are going to be read any way you like, essentially.

And so, you have to make sure that people are reading it as a whole so that they get a sense of what the entire document is supposed to stand for.

And we just don't do that very often with the Constitution, and it's partly because it's not the easiest read.

But it's pretty short, so it shouldn't take us that long.

But starting there is really important.

And, as you say, it's not exactly that it's more complicated than just that there weren't certain individuals included because the really complicated thing about the Constitution is that non-white men are included in the Constitution, but not for the rights and privileges parts.

It's really written towards an audience that understands itself as white, and wealthy, and male, but it's also meant to be this kind of superiority of men over women, of white people over black people.

So, they're in there, but they're in there at the bottom of the hierarchy.

And so, it's even worse than what we could have imagined a Constitution that was very candid that said white men get this.

The fact that it doesn't say that and it speaks in these universal terms does two things.

One is it makes those who defend it on those grounds say, look, it doesn't say anything about being prejudiced against this person or that person.

And two, the people who aren't really included, like myself, like many others, read the Constitution and think we're included.

And it's really heartbreaking to understand and to recognize when you learn about history that we weren't actually included, even though it sounds like we were.

- So, what do you like most about the Constitution?

And what do you like least about the Constitution?

- What I like most about the Constitution is the fact that it's amendable.

What I like least about it is that it's so hard to amend.

- I know you're a big fan of the 14th Amendment, by the way.

- Yes, and I do think of the 14th Amendment as being the kind of, you know, it's the New Testament to the Old Testament.

It is the golden rule, I think, of the Constitution.

It's the lesson that holds everything else together because it is this kind of command that says whatever is powerful, beautiful, aspirational, wonderful about the Constitution can only be true if everyone gets the same Constitution, everyone gets the same rights.

And that's what I think is the best aspect of the Constitution, but I also love the kind of foundational structural integrity of the framers who said we're going to make this document amendable.

We know that we can't assume that we have all the knowledge that future generations are going to need.

And so, there's something about that kind of humility that I think is at least a spark of something very valuable for us as a society to think about.

- So, one of the things that you address sometimes are different conflicts in terms of obviously, you know, what's free speech?

What can you do?

What's legal?

What should be illegal?

And one of the issues you address is revenge porn.

And I'd be really interested in your take on, you know, how do you circumscribe the legal aspects of that?

And more importantly, and I'm being presumptuous, I'm assuming you've looked at and given a lot of thought to why is this occurring in the first place?

And what is going on in our society where people, and I would guess statistically, primarily men, think that revenge porn, you know, deploying revenge porn is okay.

- So, the underlying question of why do people do these kinds of things?

Revenge porn, which is kind of a misnomer in many ways.

It's what I think perpetrators of this abuse really call it, but it's taking somebody's private, really intimate images, and distributing them without their consent.

And this is something that everyone from ex-boyfriends, to strangers, to hackers will do.

And you really do wonder, what's the impulse not only behind the action itself, but who are the consumers of this?

Because they are overwhelmingly male and the victims are still disproportionately women and girls.

So, I think as one part of the answer, it is an underlying sense of entitlement that certain men have with women's bodies.

The very idea that you are taking something that a woman or a girl has said she does not want distributed, that she wanted to keep private, and that you're choosing to force this boundary and choosing to expose her against her will, it's a form of sexual abuse.

It's a form of sexual violence.

And it's a cultural problem that that is not only something many men will do, but that they will find a willing audience for.

And then on top of which, you will get people who don't necessarily defend or think that it's wonderful that this happens, but people who will defend it as a matter of free speech and say that it's actually worse to have laws against that than it would be to have, just to have this happen.

And so, this is a point at which I disagree with certain people who consider themselves to be First Amendment protectors who want to take that kind of behavior and say that is constitutionally protected action.

That is where the divisions really start to come out.

It is one example where the framing of what is free speech versus what is a form of abuse really is highlighted, I think, in a very troubling way.

- Where have we failed or why have we failed?

And what can we do to make sure kids, number one, know they need to protect themselves, and number two, that this type of behavior in terms of doing this as someone is just totally unacceptable?

- Well, in some ways, the first one complicates the second one.

And what I mean by that is if we as a society really did focus on the second one, which is to say people's private images, if people have given you the privilege of showing themselves to you in this intimate way, you should respect that.

You should never exploit that.

If we were really serious about that message, we really wouldn't have to have the first conversation because in some ways, that first conversation becomes very quickly, much like we've heard when it comes to how to avoid sexual assault.

And what was the advice that women and girls have been given?

Don't go to certain kinds of parties.

Don't wear certain kinds of outfits.

That kind of advice not only tells women and girls that they shouldn't be free to act the way that they want to act, which everyone has the right to express themselves in sensual ways as well as other ways, but it also gives them this false sense of security that says if you're careful, if you're just careful enough, this won't happen to you.

And the sad reality is there's no such thing as being careful enough because what we were just talking about, that underlying impulse behind these images and this distribution, it's not a mistake.

It's not confusion.

It's not a misunderstanding.

It's someone who knows that this person did not want to be exposed in this way, and it is a deliberate choice to expose them anyway.

That is the entire problem.

And now there is something to be said for letting younger people know especially that yes, nothing that you send could ever really be considered private.

Even if people are being conscientious, accidents happen, for instance.

And anyone who is trying to pressure you into sending a photo that you did not want to send, that is a major red flag for them doing something much worse to you later on.

So, there is a lot more we could do there, but we are failing in the sense of talking about consent in this very broad sense because we just don't tell kids enough that you need to have consent for every kind of intimate action, not just for actual sexual activity, but also for viewing someone's body in that way.

If you don't have consent, you shouldn't be doing it.

- It seems it's moved in the other direction in that I think young people today exchange photos just willy-nilly.

People don't seem to be-- Even if they are cognizant of the risk, they just don't seem to be as concerned.

- Well, I do think that a big part of the dynamic among younger generations that are engaging in this kind of behavior is that they are having conversations where they say these are private, these are confidential.

What we will see a lot at my organization, the Cyber Civil Rights Initiative, when we hear from people who have been victimized, they will tell us that this was a situation where that person told them, I will keep this in confidence.

I will keep this private.

So, what we're really talking about, at least some of the time, is it's trust.

There are people who are willing to falsely present themselves as trustworthy, and there are people who will believe them.

I think there's something very troubling about the first, and I don't know about the second because is it so bad that people want to trust others?

But I will also say, regardless of whether you trust someone or whether it's a decision you've made to send a photo, we have to remember too that a lot of these images were never shared with anybody.

These were images that someone gained because they were sexually assaulting someone, and that they recorded it, and used this as imagery to distribute.

Sometimes, these are hidden cameras, other forms of surveillance.

Other times, it's going to be artificially generated, which is a whole other new and evolving problem.

But a lot of these photos were actually never shared with anyone at all.

- So, let's jump into AI.

I mean, clearly, we've moved into an arena where one can fabricate or invent anything to prove any point, to threaten somebody.

How can the Constitution deal with artificial intelligence and what's ahead of us?

- In some ways, I think it's really an object lesson about how when we have been so, and I say we-- When I say the dominant kind of orthodoxy around the first amendment, which is to expand and expand and expand, to cover all kinds of things that you ask anyone, if you could have asked 100 years ago, is this what you meant by the first amendment and free speech?

I think the answer would have been absolutely not.

So, now we have all of these things being treated as though they were presumptively freedom of speech, and you have to fight to argue that actually they're not.

And so, not only the distribution of someone's private images, which one would hope that we wouldn't necessarily think of that as being free speech, but the ACLU and other organizations are insisting that it is.

And now you get to a point where, okay, someone's now taken an innocuous photo, your Facebook profile picture, or something you posted about your wedding.

And they've taken a photo and they have now combined that with someone else's body to make it seem as though that person is engaged in some kind of sexual activity, sexually explicit conduct.

So, now what do we do with this?

Well, unfortunately, there are a lot of people who will say that is first amendment protected because certainly, if private images themselves are first amendment protected speech to distribute without consent, what's the harm, right?

Or at least what is the kind of harm that we would justify censoring if someone wants to combine someone's face with someone else's body?

So, I think that the perspective that is wise here would be to say, no, this is not what is meant.

And I think it's, you know, part of my critique of fundamentalism is this isn't about what the founding fathers would have thought about non-consensual pornography because that's a ridiculous question, but to ask whether or not we think as a matter of policy, as a matter of sustaining certain types of values, could we possibly say that's a constitutionally protected form of speech to take someone's face and use it in this kind of way without their consent.

I should say, to take on both sides without consent that person's face and that person's body.

There's a mutual kind of exploitation there.

But again, what we've already seen in our attempts and my own attempts to write model legislation against these kinds of abuses is that civil libertarian organizations are rising up to say, don't touch this kind of abuse because it's actually free speech, and you're violating the first amendment if you try to prohibit it.

- Even in this regard, when you're talking about first amendment rights, but beyond that, what are some of, you know, one or two of what you think are the most common and most important misconceptions about the constitution?

- Well, the first amendment one's a big one, and translating that into the feeling that people have, and there's been polls that have suggested that this is true, that people think that social media companies, for instance, are first amendment actors in the sense that if you get prohibited in some way from accessing your Twitter account, there is this newfound idea that that somehow violates your first amendment rights.

So, the confusion about all of those first ten rights, our bill of rights, the confusion about how those only apply to the government, that's a big one.

We have a major constitutional literacy problem here when people think that a private company violates your first amendment rights when it does something you don't like.

So, that's true of the first amendment.

It's also true about the second amendment.

You'll have these protests, right, when Walmart, or Dick's Sporting Goods, or other stores were becoming a little bit more cautious about their gun policies, or the kinds of guns that they want to sell, or whether they'll let people wear their guns inside their premises, you have people who are rising up and saying that's a violation of second amendment rights, and it absolutely is not.

So, I think those are two of the areas where people get very worked up about things that really would have never had a constitutional register a few decades ago.

- So, and your point is that in both illustrations is that the entities involved are not government entities, they're private businesses, private entities that have the right to make those decisions.

So, I don't know.

Some of them are so big they seem like quasi-governmental entities.

- Well, that's exactly right, and it's a different kind of problem, right, because it's absolutely fair to say well Twitter, or Facebook, or whoever the player is has now gotten so influential in our social discourse that they feel like they are government actors, and that is a problem and it is probably something that needs to be regulated in terms of tech industry reform so that they're held accountable for some of the harms that they promote, and it's probably also a question for antitrust and breaking up some of these really gigantic corporations.

- So, how do we do that?

How do we regulate?

What do you think needs to be done?

- One of the first things that need to be done is we need to reform this federal law called Section 230 of the Communications Decency Act.

That is, in kind of layman's terms, it is a law that says social media entities or internet intermediaries are not responsible for content provided by their users.

So, on some level, that makes sense that Facebook shouldn't be responsible for the crazy posts that your uncle wrote.

That's fair.

But, at a certain point, when you've got companies that are fully aware that illegal activities are happening on their site, illegal drugs are being sent to teenagers, that non-consensual pornography, or harassment, or defamation, things that are clearly harmful and clear to the actual entity that they are illegal and they do nothing to stop it, and not only do they do nothing to stop it, but in some cases, they actively solicit or engage that kind of behavior.

The idea that they would get a free pass and they would just be able to say because of this law Section 230, we have no responsibility, it's exactly how we got to the monstrous industry we have right now.

They have no incentive to be careful, they have no incentive to try to make sure that people who are using their platforms and their services are being responsible, and until that changes, we're not really going to break the stranglehold that they have on our imagination, and really, on the way that we just interact with each other.

- So, in that vein, one of the things that, I mean, you address a number of key issues and concepts that you describe in cult-like terms.

I know we're running out of time, but I'd at least like you to touch on the cult of the constitution, the cult of guns, cult of the internet, etc.

So, can you give me kind of a quick summary and the use of the term cult for starters?

I thought that was really an interesting, I had not heard that before, so I thought that was really intriguing.

- It took me a while to decide whether that was the right word.

And I decided that it was in part because I was studying what it meant to be part of a cult.

And the characteristics of the cult are that they invest a document, or a person, or sometimes both with sort of divine qualities and they tend to read their documents in a way that is incredibly self-serving, at least for the people who are at the top of the hierarchy, and that put other people lower down in the hierarchy to be exploited, and that there's a kind of propaganda element to the cult status where if you question the orthodoxy, you are not just perceived as having a different take, you are perceived as some kind of infidel.

So, that's why I decided to use that term because that's really what I thought best described the reality for some people's relationship with the constitution generally, that when they invoke it, they mean my constitution, the way I want it, and if you disagree, you're not just someone who disagrees, you are an enemy who should be destroyed.

So, that's the cult of the constitution.

- You hate the Constitution.

- You hate the Constitution, you hate America.

The cult of the First Amendment and the Free Speech Cult is more of the same, but very specifically about taking the very specific text of the First Amendment and interpreting it in a way that honestly doesn't make sense on a certain level, to basically apply to anything that person thinks should be protected and everything they don't like should not be protected.

That is really what that cult of free speech is.

And it's not a coincidence that the most powerful people in society have much more influence over what those protected things should be and what the unprotected things should be.

So, men's speech, harassing women, very highly protected, neo-Nazi speech very highly protected, but when you start talking about women, for instance, making me too accusations or black lives matter protests, somehow they are much less protected.

Cult of the Gun.

This is, in some ways, the most straightforward analogy between religious fundamentalism, I think, and legal fundamentalism because many Second Amendment fundamentalists will talk in terms of their God-given rights to have a gun.

So, instead of talking sensibly about self-defense and about what it means to protect domestic tranquility, which is our actual constitutional promise, it is about all against all, about being the chosen people who should literally have the weapons of destruction against other people.

- So, how do we move away from cults?

- I think we start by trying to figure out what it is that people are passionately attached to and are using as their shield, right?

So, when people say I want the constitution to defend me on this, there's something quite, in some ways, valuable about that because what it means is people still want to justify their actions.

They don't just want to issue a fiat.

They don't just want to say this is the way the world should be because I say so.

They are still eager to have some kind of authority to appeal to.

So, I think we start there, and we say what is it about this authority that you think is meaningful?

And we hope that we can work from there to probably something like you want to protect yourself, you want to protect your family, you want to protect the things you hold dear.

Now, can you recognize that every other person in the world deserves those same things, and that in the United States in particular, whole groups of people were denied those from the beginning and that there is a legacy of that?

It doesn't go away with the 19th Amendment, or the 14th Amendment, or any kind of change.

There's a legacy of white supremacy that is still infecting all of our institutions, all of our values, that has to be reworked and it has to be reworked because each person deserves the thing that you, I, all of us are really attached to, and I think that's where we start.

- All right.

Fair enough.

Thank you so much.

- Thank you.

- That was really revealing.

And that was, of course, Mary Ann Franks, the professor who wrote The Cult of the Constitution.

Make sure you get a copy.

I'm Aaron Harber.

Thanks for watching.

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