The First Amendment, the Courts, and "picking Winners"

• Publication year: 2021

THE FIRST AMENDMENT, THE COURTS, AND "PICKING WINNERS"

Judge Thomas L. Ambro(fn*) and Paul J. Safier(fn**)

Dean Robert Post's book-Democracy, Expertise, and Academic Freedom(fn1)-reflects and requires serious thought about our First Amendment. This Essay addresses just two of the many interesting assertions Dean Post makes. The first is his claim that the advancement of knowledge in a democracy springs primarily from the knowledge that experts gather in discerning good from bad ideas, and that recognizing this value requires courts to develop criteria for determining which viewpoints are better in ongoing debates among experts. The second is Dean Post's contention that the U.S. Constitution protects an individual right to academic freedom, which requires enforcing this right against academic institutions. The concern we have in each instance is with the role his theory assigns to courts in promoting some "experts" over others.

I. EXPERT KNOWLEDGE AND THE COURTS

Dean Post focuses much of his book on a contrast between the universal tolerance of expression traditionally associated with the First Amendment and the disciplinary practices that experts employ to produce knowledge. Proper appreciation of this contrast, he argues, requires revising many of our traditional conceptions of the First Amendment.

To illustrate this contrast, Dean Post begins his work by noting that his knowledge of an oak tree in his backyard is simply a trusting of his senses, while his knowledge of the cancerous effects of cigarette smoking is based on deference to the conclusions of "experts"(fn2) who "deployed the full and elaborate apparatus of modern epidemiological and statistical science."(fn3) He argues that if the First Amendment protects the dissemination of knowledge to the public, then its application cannot be wholly characterized by "the egalitarian tolerance that defines the marketplace of ideas paradigm of the First Amendment."(fn4) That is because determining whether an expression is worthy of protection because it promotes knowledge requires determining whether that expression actually does so. And this in turn requires that "courts apply the disciplinary methods by which expert knowledge is defined."(fn5) Thus, Dean Post argues, "disciplinary practices that create expert knowledge [should be] invested with constitutional status."(fn6) That means that courts should develop "criteria to determine which disciplinary practices"(fn7) are best so that they may adequately "distinguish[] good ideas from bad ones."(fn8)

In a nutshell, while the traditional marketplace-of-ideas model "requires that the speech of all persons be treated with toleration and equality"(fn9) so that advancements in knowledge and ideas may occur,(fn10) the democratic competency model Dean Post develops as a counterpoint does not demand such treatment.(fn11) Ultimately, he argues as follows: insofar as the First Amendment is fundamentally egalitarian in its application, it is not concerned with the promotion of knowledge; and, insofar as the First Amendment is concerned with the promotion of knowledge, it is not necessarily egalitarian in its application.

We have two concerns with this position. First, it seems to rest on an implausible account of the theory behind the marketplace model, which is more focused on worries about the harmful effects of state power on free and open debate than on the criteria by which true knowledge is identified and produced. Second, Post's suggestion that courts should take sides in ongoing factual controversies to promote the First Amendment value of "democratic competence" neglects an important aspect of First Amendment jurisprudence: the emphasis on minimizing the footprint of state regulation of speech.

First, the contrast Dean Post draws between traditional First Amendment tolerance and the standards by which experts produce knowledge cannot carry the weight he attributes to it. Contrary to what he implies,(fn12) there is nothing in the traditional First Amendment faith in the value of "uninhibited, robust, and wide-open" debate(fn13) that requires any corresponding belief in the particular value-let alone equal value- of each and every submission to that debate. The concern underlying this emphasis on robust and uninhibited speech is with the potential systemic effects on the quality of public debate where the government may suppress even speech that most listeners confidently view as "valueless." As Chief Justice John Roberts recently noted in Snyder v. Phelps,(fn14) the suppression of speech whose "contribution to public discourse may be negligible" can nonetheless have the general effect of "stifl[ing] public debate."(fn15)

Similarly, that private institutions do not produce knowledge by adhering to norms of content neutrality does not mean that a governmental norm of content neutrality cannot itself serve the purpose of advancing knowledge. It has never been part of the marketplace theory to demand that private actors and institutions govern themselves along the lines of that theory. In fact, in Miami Herald Publishing Co. v. Tornillo,(fn16) the U.S. Supreme Court specifically rejected the notion that a general commitment to fostering a "marketplace of ideas" justifies requiring private institutions to open themselves up to opposing viewpoints.(fn17) The First Amendment protects the right of private actors and institutions to exclude disfavored speech and to enforce their own conceptions of orthodoxy.(fn18) In other words, the marketplace of ideas that the First Amendment protects, properly understood, is made up of actors and institutions that do not internally operate under a marketplace model.

What these last two points reduce to is that the First Amendment is peculiarly concerned with state action. Above all else, the Amendment expresses a fear of the dangers uniquely associated with government interference in the development and expression of ideas.(fn19) It specifically bars "government control over the search for political truth."(fn20) Accordingly, defending the pervasive First Amendment norm of content neutrality on the ground that it promotes the growth of knowledge does not require any sophisticated theory of the nature of knowledge. It only requires some belief that a society in which government coercion is used to "pick winners" in public controversies, including factual controversies, would in the long run be one in which the development of knowledge did not advance as much as it otherwise would.(fn21) Others can decide whether that belief is empirically correct, but it is central to the First Amendment as we understand it.

Second, Dean Post's suggestions as to how courts should protect expert knowledge from political intrusion reflect a one-sided account of First Amendment values. The traditional conception of the First Amendment is that it mandates that government, including courts, refrain from "regulat[ing] speech based on its substantive content or the message it conveys."(fn22) As Chief Judge Alex Kozinski recently put it, "[t]he one guiding light of our First Amendment law is that government officials, and courts in particular, are not allowed to make judgments about the value of speech."(fn23) Dean Post rejects this, asserting that to promote the citizenry's access to truthful information, courts must "attribute constitutional status to the disciplinary practices by which expert knowledge is itself created."(fn24)

Dean Post is, of course, correct that the First Amendment protects, among other things, the right of audiences to be exposed to valuable information, especially in the commercial speech context.(fn25) But we have concerns about how, under his understanding, courts should enforce this right. An example Dean Post discusses in Chapter Two of his book highlights these...