Brow Beat

Is There a Glaring Legal Error in the Trailer for the New Ruth Bader Ginsburg Biopic?

A still from the upcoming Focus Features film On the Basis of Sex.
A still from the upcoming Focus Features film On the Basis of Sex. Focus Features

On Monday, Focus Features released the official trailer for On the Basis of Sex, a biopic dramatizing Supreme Court Justice Ruth Bader Ginsburg’s work as a civil rights litigator. Before she was a judge and progressive icon, Ginsburg worked with the American Civil Liberties Union to sue the government for sex discrimination, ultimately persuading the Supreme Court to expand constitutional protections for women. The new movie, which is scheduled for release on Christmas Day, stars Felicity Jones (doing her best stab at RBG’s Brooklyn accent) and Armie Hammer as her late husband, Marty Ginsburg—a stroke of casting genius, as young Marty was, like Hammer, a total dreamboat.

Based on the trailer, On the Basis of Sex appears to present Ginsburg’s undeniably inspirational story at a level that non-legal audiences will understand and enjoy. Legal commentators, though, have picked up on a glaring problem, one that pops up in the trailer’s final snippet of dialogue. The scene takes place in a courtroom, with Ginsburg standing before the bench. A glowering male judge tells her: “The word ‘woman’ does not appear even once in the U.S. Constitution.” She responds assertively: “Nor does the word ‘freedom,’ your honor.” Mic drop. Cut to title card.

The rather obvious problem here—as Cristian Farias, Ian Millhiser, Ian Samuel, and others have pointed out—is that the word “freedom” does appear in the Constitution. It’s right there in the First Amendment, which declares that “Congress shall make no law … abridging the freedom of speech.” The amendments are, without question, part of the Constitution itself. At best, the line appeared to be a glaring error that would alienate every lawyer in the audience. At worst, it seemed like an embarrassing harbinger of a broadly fact-challenged film.

But according to screenwriter Daniel Stiepleman, the film’s screenwriter, the “freedom” line isn’t a mistake at all. Stiepleman, who happens to be Ginsburg’s nephew, told me that RBG’s mic drop makes sense in the context of the full scene. “I want to be careful not to ‘spoil’ the scene by over-explaining it,” he said, “but in the ‘thrust and parry’ of oral arguments, Ruth is citing the text of the Constitution, as ratified without the Bill of Rights. That the word ‘freedom’ is in the First Amendment isn’t a flaw of the line, it’s the point she’s building to.” Stiepleman continued:

The scene is about something I came to appreciate while writing On the Basis of Sex—how America is always trying to “form a more perfect union.” The amendments to the Constitution are evidence of that. The First Amendment introduced the word “freedom” to the Constitution. The 14th added the word “equal.” etc.

And by the way, I’m delighted that even before the movie has come out, it has people discussing the finer points of constitutional law. I hope the reactions to the movie are as thought-provoking as the reactions to the trailer.

I was initially skeptical that the “freedom” line could come off as anything but a blunder in any context. Stiepleman’s explanation, however, is quite plausible. The Constitution’s ability to protect new classes and rights is indeed a key piece of Ginsburg’s jurisprudence. In her celebrated decision requiring the inclusion of women at the Virginia Military Institute, Ginsburg wrote that “a prime part of the history of our Constitution … is the story of the extension of constitutional rights and protections to people once ignored or excluded.” Since its founding, she explained, the United States has continually evolved to toward a more inclusive understanding of “We the People.”

Presumably, then, the full courtroom scene in On the Basis of Sex will involve a colloquy about the evolution of constitutional rights, during which Ginsburg notes that the Constitution as ratified was missing some critical safeguards—including the broad “freedom” guaranteed by the First Amendment. And much as the country soon enshrined that freedom by ratifying the Bill of Rights, judges now must extend true freedom to women by ending government-sponsored sex discrimination.

That makes sense to me—and, apparently, to Ginsburg, as well. Mimi Leder, the film’s director, has said that Ginsburg “loves the movie” and “approved the script.” There is no way that Ginsburg would’ve allowed her dramatized self to forget about the First Amendment. A super diva like RBG does not take such mistakes lightly.