History and Democracy

Abstract:     
This Article is part of a symposium on Robert Post’s valuable new book, Democracy, Expertise, and Academic Freedom: A Jurisprudence for the Modern State (2012). It uses the occasion to observe that in recent years, a number of leading First Amendment scholars have focused on the role of truth, falsity, and the production of knowledge in the First Amendment and public discourse. The same questions are also raised by several recent cases, including the Stolen Valor Act case, United States v. Alvarez. Taken together, they suggest a strong recent interest in the epistemological questions raised by First Amendment law and theory. Both the conclusions these scholars have drawn, and the very fact that they have converged on these questions, are worthy of consolidation and examination.

I argue in this Article that the First Amendment presents an ineluctable “epistemological problem:” it raises difficult questions about the status of true and false speech, who should make such determinations and how, and the relationship between the First Amendment and the institutions that produce knowledge and play an infrastructural role in public discourse. First Amendment doctrine alternates between a broad protectiveness of false as well as true speech and a relative lack of protection or concern for truth or falsity as such. First Amendment theory has largely moved away from epistemic justifications for free speech and toward other justifications, such as those based on democratic self-government, autonomy, or distrust of government; but that movement leaves underlying epistemological questions unanswered. Constitutional doctrines such as those protecting academic freedom recognize the important role played by some institutions in public discourse and knowledge production, but they are both undertheorized and in some tension with broader principles of First Amendment law.

The Article does three things. First, it collects and examines the recent treatments of scholars and judges who have examined the First Amendment’s epistemological problem. Second, discusses the relationship between the First Amendment and the production of knowledge, especially by specialized institutions that play a prominent infrastructural role in public discourse, such as the university. It examines and praises Post’s treatment of “democratic competence,” “democratic legitimation,” and knowledge institutions, but argues that we might avoid some tensions and enhance the production of knowledge within public discourse by taking a more direct institutionally oriented approach to these questions. Finally, it seeks to advance the discussion by asking why the First Amendment’s epistemological problem has become a subject of recent and intense discussion, and why the institutional turn has become increasingly popular in an age of relative distrust of institutions in general.

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