Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State available in Paperback
A leading American legal scholar offers a surprising account of the incompleteness of prevailing theories of freedom of speech. Robert C. Post shows that the familiar understanding of the First Amendment, which stresses the “marketplace of ideas” and which holds that "everyone is entitled to an opinion," is inadequate to create and preserve the expert knowledge that is necessary for a modern democracy to thrive. For a modern society reliably to answer such questions as whether nicotine causes cancer, the free and open exchange of ideas must be complemented by standards of scientific competence and practice that are both hierarchical and judgmental.
Post develops a theory of First Amendment rights that seeks to explain both the need for the free formation of public opinion and the need for the distribution and creation of expertise. Along the way he offers a new and useful account of constitutional doctrines of academic freedom. These doctrines depend both upon free expression and the necessity of the kinds of professional judgment that universities exercise when they grant or deny tenure, or that professional journals exercise when they accept or reject submissions.
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Democracy, Expertise, and Academic FreedomA FIRST AMENDMENT JURISPRUDENCE FOR THE MODERN STATE
By ROBERT C. POST
Yale UNIVERSITY PRESSCopyright © 2012 Robert C. Post
All right reserved.
Chapter OneDemocratic Legitimation and the First Amendment
In this book I consider the First Amendment as a source of judicially enforced rights. The First Amendment serves this function by establishing distinctive doctrinal tests and standards that courts use to evaluate the constitutionality of government regulations. Following Frederick Schauer, I distinguish between First Amendment "coverage" and First Amendment "protection." The former refers to the kinds of government regulation that should be subject to the special scrutiny exemplified by the distinctive doctrinal tests of the First Amendment; the latter refers to the content of these tests, which determines what courts will allow and what they will forbid. An essential task of First Amendment theory is to explain the scope of First Amendment coverage. We need to know the circumstances in which courts are authorized to deploy the distinctive doctrinal tests and principles of the First Amendment.
The text of the First Amendment refers to "freedom of speech." This has suggested to some, like Justice Souter, "that speech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment's scope." To extend First Amendment coverage to "speech as such" requires an account of what we mean by "speech." Normally any such account begins by distinguishing "speech" from "action." Thus the pioneering First Amendment theorist Thomas Emerson sought to explain the scope of First Amendment coverage by reference to "a fundamental distinction" between "'expression' and 'action,'" a distinction that he believed would have to make up "a crucial ingredient" of any First Amendment theory.
Of course we all can recognize paradigmatic examples of speech and action. Addressing the assembled crowd in Hyde Park is speech; throwing a brick through my neighbor's window is action. But if we try to generalize these paradigmatic examples into systematic principles that distinguish speech from action, we at once run into notorious difficulties. Emerson, for example, sought to define speech as the "communication of ideas." His approach was subsequently adopted by the Supreme Court in Spence v. Washington, which held that First Amendment coverage would be triggered whenever "an intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it."
Unfortunately this approach is impossible to reconcile with our actual First Amendment jurisprudence. Even if I throw a brick through my neighbor's window in order to communicate the particularized message that I do not like his religion and that he ought immediately to vacate the premises, and even if the likelihood is great that this message will be understood by my neighbor, no one would think to extend First Amendment coverage to my subsequent prosecution for vandalism. It is child's play to multiply such examples. Just think of all the messages deliberately and successfully conveyed by acts of terrorism.
Moreover First Amendment coverage does not extend to large patches of perfectly ordinary state legislation, like the Uniform Commercial Code or the imposition of tort liability for the negligent failure to warn, even though such legislation precisely seeks to control the successful communication of particularized messages in language. "We are men," Montaigne writes, "and we have relations with one another only by speech." To define First Amendment coverage by reference to communication in language would constitutionalize virtually all our "relations with one another," and such a conclusion would be neither accurate nor desirable.
To make matters even more complicated, First Amendment coverage has properly been held to extend to a communication that forms part of a "significant medium for the communication of ideas" even if the communication does not succeed in conveying a particularized message. The Court, per Justice Souter, recognized in the context of a St. Patrick's Day parade that if the Spence requirement of "a narrow, succinctly articulable message" were taken as precondition for First Amendment coverage, constitutional doctrine "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll."
These examples suffice to demonstrate that it is not possible constitutionally to distinguish speech from action on the ground that the former communicates ideas or uses language. The implication of this conclusion is quite significant, for it suggests that speech cannot be distinguished from action because of some common property that "speech" possesses but that "action" does not. It follows that the scope of First Amendment coverage cannot be determined merely by observing properties in the world; it does not depend upon the distribution of any natural thing like "ideas" or "speech as such."
Time and again Emerson's efforts to define the scope of First Amendment coverage were frustrated by this fact. But because he was a great First Amendment theorist, one can discern in Emerson's work the seeds of a very different approach to the problem we are considering. Almost casually Emerson notes that the scope of First Amendment coverage may have to be ascertained in light of "the fundamental purposes of the system [of freedom of expression] and the dynamics of its operation." This approach would constitute the polar opposite of Spence and the concept of "speech as such." It would determine the reach of First Amendment doctrine not by observing properties of the worldby asking whether regulated behavior communicates ideasbut instead by articulating the purposes of the First Amendment and by developing First Amendment doctrine in ways that serve these purposes. Forms of conduct that realize distinctively First Amendment values would be classified as "speech" that triggers First Amendment coverage.
We can now begin to appreciate why the question of First Amendment coverage is so profound. The actual contours of First Amendment doctrine cannot be explained merely by facts in the world; they must instead reflect the law's efforts to achieve constitutional values. This suggests that we can learn the purposes we have constructed First Amendment doctrine to achieve by tracing the contours of actual First Amendment coverage.
The text of the First Amendment is mute about its purposes. These must be constructed. Judicial efforts to determine the objectives of the First Amendment are less than a century old. Modern First Amendment doctrine first appears in the great Holmes opinions of 1919, and it does not begin to develop until the 1930s. Both the Court and commentators have ever since vigorously debated what the purposes of the First Amendment ought to be.
All Americans are entitled freely to advocate whatever theory of the First Amendment they find most convincing. But when we speak of the purposes of the First Amendment, we refer to the collective allegiances of the nation, in which are rooted the ground and legitimacy of constitutional law. These allegiances become visible in the historical commitments of the judicially enforced First Amendment. To determine the purposes of the First Amendment, therefore, we must consult the actual shape of entrenched First Amendment jurisprudence.
We need not passively receive this inheritance. We can instead aspire to what John Rawls has termed "considered judgment in reflective equilibrium." We can give our nation's actual jurisprudential commitments, as expressed in its historically decided cases, their most powerful, defensible, and persuasive formulation, and we can then critically re-evaluate received doctrine in light of this formulation. Reflective equilibrium requires a critical engagement with our own past. Constitutional law depends upon such engagement because "how we are able to constitute ourselves is profoundly tied to how we are already constituted by our own distinctive history."
Over the past decades, and speaking roughly, three major purposes for the First Amendment have been proposed. The first, embodied in the marketplace of ideas theory, is cognitive; the purpose of First Amendment protections for speech is said to be "advancing knowledge and discovering truth." The second is ethical; the purpose of the First Amendment is said to be "assuring individual self-fulfillment" so that every person can realize his or her "character and potentialities as a human being." And the third is political; the purpose of the First Amendment is said to be facilitating the communicative processes necessary for successful democratic self-governance.
Without question the marketplace of ideas theory captures something essential to growth of knowledge. Kant famously grounded enlightenment in the spirit of Sapere aude: the "resolution and courage to use one's own understanding without the guidance of another." The marketplace of ideas theory stresses that knowledge cannot grow, and truth cannot advance, unless the law allows us to venture our own ideas and reasons. Yet when we speak of "advancing knowledge and discovering truth," at least in the context of expert knowledge, we refer to something more than mere hypothesis and speculation.
"Standard analysis" in philosophy holds that "knowledge" is "belief that is both true and justified." Philosophers have puzzled forever about how true and justified belief should be identified, so that "no clear account of knowledge emerges as an established, widely accepted philosophical finding." It does not seem helpful for constitutional lawyers to venture into this epistemological thicket. It would seem rather more useful to affirm, with Allan Gibbard, that "the concept of knowing serves to guide us in relying on some kinds of judgment and not on others." Concluding that a person "knows, then, amounts to planning to rely on his judgment." The question is thus whether the marketplace of ideas gives us grounds to plan to rely on the judgment of others.
There are some who suggest that "human knowledge" should be conceived as simply an endless aggregation of "dispersed information." The challenge is to efficiently and comprehensively assemble relevant data. In this way "Biology, chemistry, physics, economics, psychology, linguistics, history, and many other fields are easily seen as large wikis, in which existing entries, reflecting the stock of knowledge, are 'edited' all the time." Those who favor this approach point to the remarkable success of open source software or prediction markets in "pooling information" to answer questions like whether "the economy of Saudi Arabia [will] prosper in next year." The assumption seems to be that the world will speak for itself so long as we are able to amass the universe of pertinent information.
It would seem implausible, however, if not downright perverse, to seek to determine the half-life of plutonium-239 merely by creating a prediction market, or to ascertain whether cigarettes are carcinogenic by creating a universal wiki. What counts as relevant information in such matters is itself the result of sophisticated disciplinary expertise. We construct relevant data by actively intervening in the world through research, theory, and experiment. Note that Wikipedia itself strictly prohibits the publication of "original research or original thought," thus distinguishing between readily available information and information produced by the application of disciplinary standards. Wikipedia makes the same (unelucidated) distinction when it provides that "the threshold for inclusion in Wikipedia is verifiability, not truththat is, whether readers are able to check that material added to Wikipedia has already been published by a reliable source, not whether we think it is true." And Wikipedia guidelines specifically provide that "academic and peer-reviewed publications are usually the most reliable sources when available."
Scholarly publications are produced within practices where Sapere aude is only half the story. Scholarship requires not only a commitment to vigorous debate and critical freedom, but also and equally a commitment to enforcing standards of judgment and critical rigor. We rely on expert "knowledge" precisely because it has been vetted and reviewed by those whose judgment we have reason to trust. All living disciplines are institutional systems for the production of such "knowledge."
This is explicitly the perspective adopted by federal courts when they determine whether to admit expert testimony about "scientific, technical, or other specialized knowledge" under Federal Rule of Evidence 702. Federal courts plan to rely on such testimony only if it meets "exacting standards of reliability," which means that an expert's claim to knowledge must be validated by an "assessment of whether the reasoning or methodology underlying the testimony is scientifically valid," an assessment that in part depends upon "whether the theory or technique has been subjected to peer review and publication."
The continuous discipline of peer judgment, which virtually defines expert knowledge, is quite incompatible with deep and fundamental First Amendment doctrines that impose a "requirement of viewpoint neutrality" on regulations of speech and that apply "the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content." If content and viewpoint neutrality is "the cornerstone of the Supreme Court's First Amendment jurisprudence," the production of expert knowledge rests on quite different foundations. It depends upon the continuous exercise of peer judgment to distinguish meritorious from specious opinions. Expert knowledge requires exactly what normal First Amendment doctrine prohibits. "The First Amendment ... 'as a general matter ... means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'"
To put the matter simply, if "the First Amendment recognizes no such thing as a 'false' idea," then it cannot sustain, or even tolerate, the disciplinary practices necessary to produce expert knowledge. The creation of expert knowledge requires practices that seek to separate true ideas from false ones. A scientific journal bound by First Amendment doctrine, and thus disabled from making necessary editorial judgments about the justification and truth of submissions, could not long survive. Alexander Meiklejohn was quite correct to observe that deep within First Amendment doctrine there is an "equality of status in the field of ideas." This egalitarian commitment is in sharp tension with the cognitive aspiration to knowledge, which in the end must always rely on discrimination, in the traditional sense of judgment and evaluation.
It is not intelligible to believe that all ideas are equal. Americans repudiate "discrimination," however, because they imagine that persons, rather than ideas, should be equal. Americans are committed to the equality of persons. The deep egalitarian dimension of the First Amendment resonates far more with this ethical value than with any cognitive ideal. The primary ethical value that has been ascribed to the First Amendment is that of autonomy or individual self-fulfillment, which expresses the principle that all persons ought to be accorded the equal dignity to fulfill their unique individual potential.
I should note at the outset that there is no particular connection between speech and this ethical idea of equal autonomy, because autonomy can be manifested and instantiated through any form of behavior, not merely through communication. There is no doubt that a libertarian commitment to autonomy has deep roots in American constitutionalism and that it has detectably influenced the content of First Amendment doctrine. But the fundamental constitutional commitments of the nation, as reflected in the actual scope of First Amendment coverage, do not suggest that the protection of autonomy can be deemed a basic purpose of the judicially enforced First Amendment.
If the protection of autonomy were a fundamental goal of the First Amendment, all expression equally connected to the achievement of individual self-fulfillment would be accorded equal First Amendment value. But this is emphatically not the case. Much speech that may be of great importance to the autonomy of individual speakers receives no First Amendment coverage at all.
Consider, for example, speech that may be of great importance to a speaker but that is defamatory of another. Well-entrenched First Amendment doctrine holds that if such speech defames a public official or public figure, or if it involves a matter of public concern, the Constitution precludes the application of common law rules that impose liability without fault and that presume damages. The theory is that strict regulation of such speech would be inconsistent with the nation's "profound national commitment" to a robust public debate that will assure the "'unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'" If defamatory speech is about a matter "of purely private concern," by contrast, "states are free to retain common law principles." First Amendment coverage thus does not extend to private defamatory speech, no matter how important such speech may be to the self-fulfillment of the speaker. First Amendment coverage is extended only when state regulation might adversely affect the value of democratic self-governance.
The same principle of First Amendment coverage applies when the state seeks to regulate the speech of its employees. First Amendment coverage materializes only when employee speech is about a matter "of public concern," because only such speech is "entitled to special protection." First Amendment doctrine attributes no constitutional significance to the importance that such speech may bear to the autonomy or self-fulfillment of an employee. First Amendment coverage is triggered only when a government employee begins "to speak as a citizen addressing matters of public concern." More or less the same standard of First Amendment coverage applies to the tort of intentional infliction of emotional distress and to state efforts to regulate speech in order to protect privacy.
Excerpted from Democracy, Expertise, and Academic Freedom by ROBERT C. POST Copyright © 2012 by Robert C. Post. Excerpted by permission of Yale UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
1 Democratic Legitimation and the First Amendment 1
2 Democratic Competence and the First Amendment 27
3 Academic Freedom and the Production of Disciplinary Knowledge 61