The First Amendment and the Second Sex
Modern American law describes speech in stereotypically masculine terms: it is a “marketplace” where participants “joust” for dominance. Predictably, today’s speech jurisprudence can be hostile to the female voice, implicitly condoning gendered death threats, rape threats, doxing, and trolling as the necessary price of a vibrant national discourse. Unpredictably, the American Civil Liberties Union (“ACLU”) and its leading women drafted the blueprint for this modern speech edifice. The First Amendment and the Second Sex traces the ACLU campaign to dismantle a nineteenth-century speech regime that silenced some men while protecting many women. And it suggests that ACLU feminists—intent on securing full legal and cultural equality with men—were complicit in this effort because they scoffed at the domesticated version of womanhood shielded by protective speech torts like slander.
This Article begins by surfacing the deep architecture of nineteenth-century life and law, with its bright boundaries between public and private. When speech regulation was commonplace and the First Amendment slept, public law was free to punish government criticism in the public sphere—a distinctly anti-democratic phenomenon. At the same time though, women in the private sphere targeted by domestic gossip had generous remedies in private law—a distinctly empowering phenomenon. It then shows how, throughout the twentieth century, the ACLU urged the Supreme Court to treat all law as public law and all life as public life. Across this new public terrain, the group argued, speech regulation should be replaced with self-help in the form of muscular counterspeech. ACLU luminaries on the distaff side joined this campaign, convinced that women were on the cusp of full public citizenship. Because this cultural turn would give women status to counterspeak, they were certain the protection of remedial speech torts would grow obsolete.
Today it appears that the women of the ACLU fatally miscalculated. American law has adopted the premise that all can navigate the deregulated marketplace of ideas by marshaling ideas and intellect. But American culture clings to the preference for private womanhood, producing gendered consequences for female speech. Modern women who bring their ideas into the public sphere are just as likely to be refuted with attacks on their domestic status or sexuality as they are with intellectual rejoinders. Stripped of the private law that used to repel such threats, these women are left either to counterspeak in ways that aggravate their personal peril or to withdraw from the speech arena altogether. The Article contends the time has come to acknowledge the tax that speech law extracts from women, and to ask whether today’s expressive marketplace is fair or foul.