The First Amendment's Epistemological Problem

• Publication year: 2021

THE FIRST AMENDMENT'S EPISTEMOLOGICAL PROBLEM

Paul Horwitz(fn*)

INTRODUCTION

A standard rule of thumb in journalism tells us that three of anything is a trend. Whatever the subject, high or low, no journalist will consider something a trend until he or she can find three examples. Once they are found, however, the newspapers and other outlets will fill with pieces gushing that "everybody's doing it."(fn1)

In the bit of trendspotting that follows-or, to lend it some dignity, in this analysis of an emerging theme in First Amendment scholarship-we have many more than three examples. Consider the titles of some recent papers by leading First Amendment scholars: Facts and the First Amendment;(fn2) Details: Specific Facts and the First Amendment;(fn3) and 'Telling Me Lies': The Constitutionality of Regulating False Statements of Fact.(fn4) Consider, too, the U.S. Supreme Court's grant of certiorari in the Stolen Valor Act case, United States v. Alvarez,(fn5) and the emerging scholarship on that case.(fn6) Consider other recent cases raising similar issues.(fn7) Finally, consider the book that is the subject of this Symposium: Robert Post's Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.(fn8)

The puzzle all these writers are addressing is epistemological,(fn9) a question about the nature, legitimacy, and sources of knowledge.(fn10)

First Amendment jurisprudence routinely stresses the equality of speakers,(fn11) refuses to allow government to regulate expression on the basis of its content,(fn12) and emphasizes that "there is no such thing as a false idea."(fn13) But how does the First Amendment deal with facts? Even if Post is right that a central value of the First Amendment is the protection of "public discourse"(fn14) and the ideas and opinions it involves, public discourse still rests on a factual foundation.

Not all facts are equal. People are entitled to have different opinions about where Barack Obama was born and who his parents were. But those opinions presuppose that there is a fact of the matter. How do we know what is true? How, in particular, do courts ascertain what is true? And what does the First Amendment say about all this? If not all "facts" are equal in life, should they nonetheless be treated as equals in law?

In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post's project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment.

The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some views of my own, my approach is primarily descriptive. We must see the epistemological problem clearly before we can do anything about it (if anything can be done, that is). That is the goal of this Article.

Part I presents some basic theoretical and doctrinal views concerning free speech and its relation to epistemological questions. I show that current theory and doctrine recognize, but do not resolve, a host of difficult questions about the relationship between truth, falsity, knowledge, and freedom of speech. I offer as an example the recent litigation over the federal Stolen Valor Act, which was heard this Term in the U.S. Supreme Court. Part II analyzes the recent scholarship discussing these epistemological questions. Part III draws on Post's book and my own forthcoming book on what I call "First Amendment institutions."(fn15) I ask whether we can say more about what Post calls "the relationship between the marketplace of ideas and the production of expert knowledge."(fn16) In other words, are there ways that First Amendment law could better protect or encourage the production of useful facts? Part IV presents some conclusions about the relationship between knowledge, truth, and the First Amendment. The Conclusion seeks to move the conversation forward by speculating about the reasons for the recent surge in scholarly interest in this question.

I. THE EPISTEMOLOGICAL PROBLEM IN FIRST AMENDMENT THEORY AND DOCTRINE

To understand the claim that there is an epistemological "problem" in the First Amendment, it is helpful to start with the basics. I focus on standard theories of freedom of expression and basic First Amendment doctrine. In both areas, we find conflicting attitudes concerning the relationship between free speech and qualities like knowledge, truth, fact, and opinion.

A. First Amendment Theory

The free-speech theory that addresses epistemological questions most directly is the "truth-seeking" justification. Its most influential advocate is John Stuart Mill, whose On Liberty offers a largely truth-centered argument for freedom of speech.(fn17) Frederick Schauer calls Chapter Two of the book "the definitive expression of the (social) epistemic arguments for freedom of expression-the ways in which freedom of expression functions as an indispensable aid in the societal identification of truth (and exposure of falsity) and, thus, in the fostering of public knowledge."(fn18)

Mill draws on a venerable argument: that truth, if left to its own devices, would triumph in what we now call the "marketplace of ideas."(fn19) Strikingly, however, Mill focuses on false speech, not true speech.(fn20) It seems obvious that true speech is worth defending, but less obvious that false speech should be protected. Yet Mill makes precisely that point.(fn21)

Mill makes three arguments.(fn22) First, an idea we assume to be false may actually be true.(fn23) Second, some ideas can contain elements of both truth and falsity, so that suppressing a falsehood also deprives us of what is true.(fn24) Finally, false speech has a value of its own: it can result in "the clearer perception and livelier impression of truth, produced by its collision with error."(fn25)

Despite its centrality to the free speech tradition, Mill's argument tells us less about the relationship between knowledge and the First Amendment than we might suppose, for two reasons. First, Mill assumes that the "typical impulse to suppress [speech] is based on the alleged falsity of the idea or articulation to be restricted."(fn26) This move allows him to focus "entirely [on] the benefits and risks of restricting expression based upon its supposed falsity,"(fn27) but does not tell us how to determine whether speech is true or false.

Second, his examples of false speech involve matters of opinion, such as "open questions of morals,"(fn28) not more mundane facts. "Even in this most influential of the epistemic arguments for freedom of speech," Frederick Schauer writes, "Mill was not to any appreciable extent addressing issues of demonstrable and verifiable fact."(fn29)

This second problem might be self-limiting where free speech law is concerned. On Liberty is driven by Mill's famous harm principle, under which speech and other actions should only be suppressed to prevent harm to others.(fn30) As a practical matter, given the finite time and resources of government regulators, the more mundane a factual statement is, the less likely it is to be suppressed. Government may wish to restrict speech advocating tyrannicide; and it may, consistent with the harm principle, wish to restrict false statements that could cause serious and immediate harm. But a false statement that the sky is red, or that Millard Fillmore was our fifth President, is unlikely to interest government censors, either for its own sake or for reasons of guarding against potential harm.

Still, Mill's account leaves two important epistemological questions unanswered. First, what value should we assign to narrow factual statements? Second, how do we know whether those statements are true or false?

Other prominent justifications for freedom of speech are less focused on epistemological matters, but still give rise to similar questions. To take one example, the argument that free speech is necessary to support individual autonomy may say something about epistemic issues. Thus, David Strauss argues that First Amendment law can distinguish between manipulative lies and inadvertently false statements, because the former deliberately "interfere with a person's control over her own reasoning processes."(fn31) But truth and falsity are secondary considerations here.

We might say the same thing of justifications for free speech based on its importance to democratic self-government. One who values a free and informed citizenry engaging in public deliberation might also agree with the truth-seeking argument that unfettered political speech will result in more truth. Given the democratic justification's focus on the political process, however, an advocate of free speech based on democratic self-government might just as easily conclude that "political truth is what the people decide through democratic processes, without regard to whether what is politically true happens to be epistemically true."(fn32)

Ultimately, neither rationale resolves the epistemological questions...