Public Discourse, Expert Knowledge, and the Press

• Jurisdiction: United States,Federal
• Citation: Vol. 87 No. 2
• Publication year: 2021

PUBLIC DISCOURSE, EXPERT KNOWLEDGE, AND THE PRESS

Joseph Blocher(fn*)

Abstract: This Essay identifies and elaborates two complications raised by Robert Post's Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post's theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution.

The second complication is the interface between expert knowledge and public discourse. Post's theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example.

INTRODUCTION

Robert Post's Democracy, Expertise, and Academic Freedom(fn1) explains our constitutional commitment to free speech in light of two central and sometimes conflicting principles: democratic legitimation and democratic competence. In doing so, the book employs concepts that Post has carefully crafted over the past few decades, including the constitutional concept of public discourse,(fn2) the lexical priority of participatory democracy as a First Amendment principle,(fn3) and the need to orient First Amendment doctrine around social practices rather than "speech as such."(fn4) Drawing heavily on that earlier work, this Essay attempts to identify and explore two ways in which those concepts are particularly hard to reconcile. First, it is difficult to maintain a conceptual thread through public discourse, protected social practices, and democratic legitimation while treating each of them as independent and important parts of First Amendment analysis. Second, Post's theory raises intractable questions about how expert knowledge is disseminated into public discourse and how it should be treated once it arrives there. In the course of exploring those difficulties, this Essay also considers how Post's theory can account for First Amendment protection of the press.

Following the structure of the book, this Essay proceeds in two parts. Part I explores the relationships between public discourse, protected social practices, and democratic legitimation. Specifically, it asks whether the first two concepts define the boundaries of the third, or the other way around-whether, in other words, public discourse and protected social practices establish the boundaries of speech that furthers the principle of democratic legitimation, or whether they are simply labels for speech that does so. Part I begins, as Post does, with the proposition that the First Amendment must be interpreted in line with its core values.(fn5) The primary value of First Amendment doctrine is democratic legitimation(fn6)-allowing speakers to communicate in public discourse(fn7) and thereby experience themselves as participating in the shared project of self-government.(fn8)

Defining the boundaries of public discourse is therefore an essential, difficult, and inherently normative goal.(fn9) In pursuit of that goal, Post argues that public discourse is not defined by the content of specific speech acts, but by "the forms of communication constitutionally deemed necessary for formation of public opinion."(fn10) As in his previous work, Post focuses on these forms of communication, looking to "particular social practices"(fn11) rather than "speech as such."(fn12) He is thereby able to construct a rich First Amendment theory that is grounded in current doctrine, accounts for the social nature of speech, and leaves necessary room for argumentation and change.(fn13)

But as Part I of this Essay attempts to show, Post's approach also raises conceptual difficulties. If particular social practices are constitutionally protected because they constitute public discourse, and public discourse is defined by those practices and protected because it furthers them, then the two concepts appear circular and disconnected from the value of democratic legitimation, which is what justifies their protection in the first place.(fn14) On the other hand, if the value of democratic legitimation is doing all the work, then public discourse and protected social practices are simply labels for protected speech, not substantive parts of the analysis.

This Essay considers a third understanding: that social practices, which together constitute public discourse, are proxies for identifying speech whose content presumptively furthers the principle of democratic legitimation. This differs from Post's approach inasmuch as it treats public discourse and social practices as having evidentiary, rather than intrinsic, value. Under the proxy approach, determining whether a particular social practice forms part of the "structural skeleton that is necessary, although not sufficient, for public discourse to serve the constitutional value of democracy"(fn15) requires a continuous assessment of whether the speech occurring within it tends to be "normatively necessary for influencing public opinion."(fn16)

The press provides a particularly useful lens through which to examine these relationships between public discourse, social practices, and democratic legitimation. Post writes that "[m]edia speech is . . . unique because it carries within it [a] prima facie claim to constitute public discourse, a claim based entirely on the manner of its distribution rather than on its content."(fn17) But despite this unique claim, First Amendment doctrine has never extended protection to the press qua press. Why not? Moreover, many forms of "media speech" are in fact denied full First Amendment protection-copyrighted speech and commercial advertising, for example. Why? These questions and other important issues, like the changing membership and mechanisms of the press, raise serious complications with treating the press as a part of public discourse.

While Part I of this Essay focuses on public discourse and the value of democratic legitimation, Part II focuses on the second major First Amendment value Post identifies: democratic competence. As he points out, effective democracy depends on more than just the ability to participate-it requires expert knowledge.(fn18) But "[t]he continuous discipline of peer judgment, which virtually defines expert knowledge, is quite incompatible with deep and fundamental First Amendment doctrines," such as those governing viewpoint and content neutrality.(fn19) As Post puts it, "[d]emocratic competence is thus both incompatible with democratic legitimation and required by it."(fn20) The bulk of his book is devoted to reconciling the two, or at least sketching the terms of a détente.

Part II explores two particularly difficult questions of democratic competence: how expert knowledge enters into public discourse, and how public discourse can accommodate it once it arrives there. Post devotes considerable attention to the creation and circulation of expert knowledge outside of public discourse. But in order to inform public discourse-which Post considers an essential function of democratic competence(fn21)-such knowledge must at some point enter into it. How does that dissemination happen? Does it, like the creation of expert knowledge, require disciplinarity?(fn22) Moreover, as Post notes, "[w]ithin public discourse, traditional First Amendment doctrine systematically transmutes claims of expert knowledge into assertions of opinion."(fn23) How, then, does expert knowledge in public discourse add any value above and beyond other claims of opinion?

In assessing democratic competence, Post focuses predominately on the role of universities in creating and disseminating expert knowledge.(fn24) The press, too, engages in information-producing activities that are essential to its role but not a part of public discourse-newsgathering, for example-and sometimes creates expert knowledge through investigative journalism and the like. Perhaps, then, the press is also entitled to constitutional protection under the principle of democratic competence. This conclusion raises its own complications, some of which overlap with those Post raises with regard to universities. Does the press have its own disciplinary standards? Are they worthy of respect? How can one define the boundaries of the press, and how do those changing boundaries impact its disciplinarity?

It is beyond this Essay's scope, and its author's ability, to answer all of these questions. The more limited goal here is to explore...