The Guardians of Knowledge in the Modern State: Post's Republic and the First Amendment

• Publication year: 2021

THE GUARDIANS OF KNOWLEDGE IN THE MODERN STATE: POST'S REPUBLIC AND THE FIRST AMENDMENT

Ronald K.L. Collins(fn*) and David M. Skover(fn**)

On some grave questions, there is no difference to be split; one does not look for a synthesis between verity and falsehood; the sun does not rise in the east one day and in the west the next.(fn1)

Christopher Hitchens's maxim could be the epigraph quote to Robert Post's thought-provoking new book, Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State.(fn2) While many might laud the democratization of knowledge and the ideal of free and equal competition of ideas in the proverbial marketplace, there are certain lines that cannot be crossed if the sun is to continue to rise in the east. This is but another way of saying that egalitarian principles cannot be allowed to run amok when it comes to how we understand truth or, if you will, expert knowledge.

Robert Post's examination of the First Amendment is reminiscent, if only in broad strokes, of the late Allan Bloom's critique of what he saw as the assault on the academy owing to invasive egalitarian principles. The liberal dean of the Yale Law School and the conservative professor of political philosophy of the University of Chicago share some conceptual ground.

If truth be known (Dare we put it that way?), this should not be surprising. For where excellence (what the ancients called arete) is the criterion, there has to be some rupture, at some point, of egalitarian norms.(fn3) One mark of a dauntless thinker is a willingness to defend the verity of the earth's circularity in a democratic culture in which the flat-earth crowd demands compromise or synthesis. However much one may agree or disagree with eye-opening books such as Post's Democracy, Expertise, and Academic Freedom or Bloom's The Closing of the American Mind, it is hard to deny one thing: that they force us to be pensive, to pause and reflect on what we heretofore may have considered to be gospel. Metaphorically, they are akin to Socrates speaking to his Athenian jury-they alert us even as they challenge us. One of the nobler purposes of the First Amendment is to inspire us to think critically, including the way we think about the First Amendment. By that measure, Dean Post has done us a great service: he has written a book that pricks the mind at many a turn where feeble thinking passes for received wisdom.

In his discussion of justice in The Republic, Plato's Socrates insists on a distinction between truth and opinion.(fn4) Drawing on the thought of the political theorist Hannah Arendt,(fn5) Dean Post does something of the same in his discussion of the First Amendment. He writes: "Arendt allows us to see that First Amendment protections guarantee the specifically political character of public opinion. To the extent that law enforces claims of truth, it suppresses 'political thinking' by excluding from political participation those who embrace a different truth from the state."(fn6) Hence, we are told, "'[t]ruth . . . carries within itself an element of coercion.'"(fn7) We will soon say more about this general dichotomy. For now, it is enough to suggest a larger point, namely, the nexus in Dean Post's thinking between political philosophy and free speech.

Throughout his book Post turns time and again to the thoughts of philosophers such as Jurgen Habermas, Georg Wilhelm Hegel, Immanuel Kant, Charles Sanders Peirce, John Rawls, Jean Jacques Rousseau, and Carl Schmidt, to list but a few.(fn8) Speaking broadly, this juxtaposition of philosophy and free speech theory calls to mind the approach that Alexander Meiklejohn takes in his seminal book Free Speech and Its Relationship to Self Government.(fn9) Whatever his conceptual allegiance to Meiklejohn,(fn10) Post does something similarly bold-he ventures a theory of free speech. And that theory very much concerns the role and rule of the First Amendment in a modern democracy.

It is an old problem. Democracy is tied to doxa (the Greek word for opinion), which affects how we perceive truth or understand knowledge. And Dean Post is aware of that problem: "Within public discourse, traditional First Amendment doctrine systematically transmutes claims of expert knowledge into assertions of opinion."(fn11) If doctrine does so, however, it may be that an all-too-accommodating egalitarian culture often demands it. So why is that a problem? Consider, as Post has,(fn12) the case of state abortion laws that in effect require doctors "to give untruthful, misleading and irrelevant information to patients."(fn13) For those who demand accurate medical information, such laws are anathema to the doctor-patient truth-telling relationship. Then again, to those adamantly opposed to abortion, virtually anything that obstructs the "murder" of unborn "babies" is justifiable and such laws surely further that end. Thus, what subsidizes the unrestrained anti-abortion agenda to set truth aside, what gives it wide currency, is religious belief, which quite frequently is at odds with expert knowledge.(fn14) Conceptually, what is important here is that in a democratic regime, truth or scientific knowledge is not always the coin of the realm.

Should the opinions of the many prevail over the knowledge of the few? What to do? Enter Robert Post, who offers some thoughts for our consideration. He posits a way to navigate the First Amendment's value of safeguarding public opinion from governmental censorship while at the same time preserving a safe haven for knowledge (properly understood). In the process, Post has a keen insight: though the First Amendment is often hailed for the pursuit of truth or expert knowledge, certain of its applications war against the force of that knowledge. Phrased differently, free speech theories such as the marketplace of ideas(fn15) or doctrines such as content neutrality(fn16) run counter to the production of disciplinary knowledge, which presumes discrimination as to the worth of ideas. If such theories and doctrines were unleashed in the precincts of the academy, they would threaten the Enlightenment raison d'etre of the university. This all points to Post's understandable concerns for and proposals to protect academic freedom.

* * * * *

One of the preconditions for a vibrant and operational First Amendment is a salutary degree of toleration, a willingness to step down off of one's pedestal and permit (or even invite) a generous dollop of differing views. By that standard, Dean Post's display of goodwill is apparent in his exchange with the contributors to this Symposium.(fn17) After all, he prefaces his replies to each of them with kindly characterizations, labeling their contributions as "illuminating,"(fn18) or "concise and lucid,"(fn19) or "fascinating and comprehensive,"(fn20) or "fine and careful"(fn21) or even "shrewd and canny."(fn22) Taking our cue from such generosity of spirit, we welcome the opportunity to comment in kind and to raise a few affable questions (and tease out an occasional germ of an idea) in response to some of the points discussed in Dean Post's discerning book and in his instructive reply to the contributors to this Symposium. In these ways and others, we agree with Dean Post as to the importance of honoring the Holmesian injunction of squaring what we say about the law (how it is pigeonholed) with what we do with the law (how the courts and culture actually use it). In this regard, it would be most helpful to consider another injunction: others will tell you what the world should be, but I will tell you what it is.(fn23)

CLEARING SOME TERMINOLOGICAL BRUSH

If certainty is the end, clarity is the means. Words matter. And how words are used and understood very much determines whether or not we value ideas. This is particularly true for experts who trade in words, such as legal scholars. After all, what is legal education if not a discipline in careful writing and reading? Key to the art of legal reasoning is the deliberate and critical parsing of text.

One of the potential challenges in appreciating Dean Post's book is grappling with some of the terminology central to his thesis. The clearer one is about that terminology, the better one stands to evaluate Post's theories. If terms are unduly abstract, unnecessarily vague, inexplicably contradictory, or uncommonly used, the interpretive process suffers. Without venturing an opinion on that score, we wonder whether Post's audience may struggle in the attempt to attain clarity.

In order to develop his theory of free speech in such a way as to rescue a modicum of truth or to safeguard expert knowledge, Robert Post invites us to think about the ways in which a well-working democracy requires protection for opinion and likewise demands protection for the work product of the "[g]atekeepers" and "evaluators" of knowledge.(fn24) He does so by creating a dichotomy, but one that is oppositional and complementary at the same time: * Democratic legitimation: "Democracy requires that government action be tethered to public opinion. Because public opinion can direct government action in an endless variety of directions, it is impossible to specify in advance which aspects of public opinion are 'political' and which are not . . . . It is for this reason that First Amendment coverage presumptively extends to all communications that...