Robert C. Post - Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State

Democracy, Expertise, and Academic Freedom

A FIRST AMENDMENT JURISPRUDENCE FOR THE MODERN STATE

ROBERT C. POST

Copyright 2012 by Robert C. Post.

All rights reserved.

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Library of Congress Cataloging-in-Publication Data

Post, Robert, 1947

Democracy, expertise, and academic freedom :
a First Amendment jurisprudence for the modern state /
Robert C. Post.
p. cm.

Includes index.

ISBN 978-0-300-14863-3 (hardback)

1. Freedom of speechUnited States. 2. United States.

Constitution. 1st Amendment. 3. Academic freedom

United States. I. Title.

KF4772.P67 2012

342.7308'53dc23 2011025711

A catalogue record for this book is available from the British Library.

This paper meets the requirements of ANSI/NISO

Z39.481992 (Permanence of Paper).

10 9 8 7 6 5 4 3 2 1

For Owen:
Il Miglior Fabbro
With affection.

This book developed out of the Julius Rosenthal Lectures, which were delivered at Northwestern University School of Law on April 1618, 2008. I am greatly indebted to the Dean and Faculty of that school for inviting me to join the distinguished list of Rosenthal Lecturers, for their gracious hospitality, and for their valuable comments and suggestions.

I have also been blessed with the insight and critique of many colleagues, to whom I am deeply indebted: Bruce Ackerman, Ed Baker, Vince Blasi, Peter Byrne, Jules Coleman, Matthew Finkin, Owen Fiss, Kent Greenawalt, Philip Hamburger, David Hollinger, Martha Minow, David Rabban, Martin Redish, Jed Rubenfeld, Joan Scott, Scott Shapiro, Michael Siebecker, Reva Siegel, Norman Silber, Peter Strauss, William Van Alstyne, and Jim Weinstein, and for the outstanding research assistance of Jennifer Bishop, Thomas Donnelly, Jacob Gardener, Nathaniel Gleicher, Thomas Schmidt, and David Tannenbaum.

As I type these words, I gaze out at my backyard, and I know that there is a large oak in the northwest corner of my lawn. I have knowledge of this oak both because I can see the tree and because I have reason to trust my senses. My knowledge of this oak should be contrasted to my knowledge that cigarettes cause cancer. I cannot acquire the latter form of knowledge merely by observing the world and by trusting my senses.

In fact I have learned about the carcinogenic properties of cigarettes by studying the conclusions of those whom I have reason to trust. We call such persons experts. How did these experts come to know that cigarettes are carcinogenic? Certainly not in the same way that I came to know about my oak tree. They instead deployed the full and elaborate apparatus of modern epidemiological and statistical science. This science consists of practices of knowing that can be acquired only through training and instruction. The practices create forms of knowledge that are constantly expanding through speculation, observation, analysis, and experiment. In this book I shall refer to this kind of knowledge as expert or disciplinary knowledge. Any modern society needs expert knowledge in order to survive and prosper.

In this book I analyze the relationship between the First Holmes explained:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideasthat the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.

The United States Supreme Court has since frequently proclaimed that it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.

The very concept of a marketplace of ideas has long been subject to devastating objections based upon its various imperfections, inefficiencies, and internal contradictions. And a discipline, as the Oxford English Dictionary reminds us, refers to the training of scholars or subordinates to proper and orderly action by instructing and exercising them.

The marketplace of ideas expresses the egalitarian principle that persons cannot be regulated based upon the content of their ideas. We have interpreted the First Amendment to mean that every person has an equal right to speak as he or she thinks right. The state is therefore constitutionally prohibited from disciplining our communication on the basis of an official view about what is proper or correct. The First Amendment stands for the proposition that we are not the students of the state. We are adults who are constitutionally empowered to speak for ourselves.

If expert knowledge depends upon the preservation of disciplines, and if disciplines require maintenance of proper and orderly action, the very independence jealously safeguarded by the First Amendment is in tension with the production of expert knowledge. If we wish to know whether

Contemporary technical expertise is created by practices that demand both critical freedom to inquire and affirmative disciplinary virtues of methodological care, virtues which the philosopher Charles Peirce once called the method of science as distinct from the method of authority. The maintenance of these virtues quite contradicts the egalitarian tolerance that defines the marketplace of ideas paradigm of the First Amendment. Because the practices that produce expert knowledge regulate the autonomy of individual speakers to communicate, because they transpire in venues quite distant from the sites where democratic public opinion is forged, they seem estranged from most contemporary theories of the First Amendment. My object in this book is to inquire what, if anything, can be said about this constitutional hiatus.

I stage this inquiry in three chapters. In Chapter One, I present what I regard as the most convincing account of the normative foundations of our First Amendment. This account centers on the value of what I call democratic legitimation, which explains why the First Amendment is committed to the egalitarian premise that every person is entitled to communicate his own opinion. In Chapter Two, I discuss the tension between this entitlement and indicia of reliability that define expert knowledge. I argue that there is indeed a First Amendment principle capable of sustaining the disciplinary practices that produce expert knowledge and that this principle depends upon the constitutional value I call democratic competence. Understanding the relationship between democratic legitimation and democratic competence is difficult and challenging, because democratic legitimation both requires democratic competence and is in many ways incompatible with it. In Chapter Three, I address the consequences of democratic competence for the production of disciplinary knowledge within universities. I discuss the constitutional foundations of academic freedom, which have been badly misunderstood by many contemporary commentators and court decisions. Finally, in the Conclusion, I underscore the larger theoretical implications of the vision of constitutionalism that I espouse.