Democracy, Expertise, and Academic Freedom by Robert C. Post

Author:Robert C. Post
Language: eng
Format: epub
Publisher: Yale University Press
Published: 2012-03-14T16:00:00+00:00

Notes

Introduction

1. Davenport v. Washington Educ. Ass’n., 551 U.S. 177, 188–89 (2007).

2. 250 U.S. 616 (1919).

3. Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 CALIF. L. REV. 2355, 2359 (2000).

4. Abrams, 250 U.S. at 630 (Holmes, J., dissenting).

5. Red Lion Broad. v. FCC, 395 U.S. 367, 390 (1969).

6. Gloria Franke, The Right of Publicity vs. The First Amendment: Will One Test Ever Capture the Starring Role?, 79 S. Cal. L. Rev. 945, 958 (2006).

7. See, e.g., S. Brannon Latimer, Can Felon Disenfranchisement Survive Under Modern Conceptions of Voting Rights?: Political Philosophy, State Interests, and Scholarly Scorn, 59 SMU L. Rev. 1841, 1862 (2006) (A central purpose of the First Amendment is that of “‘advancing knowledge’ and ‘truth’ in the ‘marketplace of ideas’”).

8. William P. Marshall, In Defense of the Search for Truth as a First Amendment Justification, 30 GA. L. REV. 1, 1 (1995).

9. For classic analysis, see C. EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH 6–46 (1989). See also Edwin Baker, First Amendment Limits on Copyright, 55 VAND. L. REV. 891, 897 (2002) (The “marketplace of ideas theory is fundamentally unsound both normatively and descriptively.”); FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 15–34 (1982); David A. Strauss, Persuasion, Autonomy, and Freedom of Expression, 91 COLUM. L. REV. 334, 348–50 (1991); Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1. In the light of these notorious objections, Vince Blasi has offered a fundamental reinterpretation of the value expressed in Holmes’s metaphor of the marketplace of ideas:

As Holmes understood the notion, the marketplace of ideas does not offer the prospect of a just distribution of the opportunity to persuade. It does not offer the prospect of wisdom through mass deliberation, nor that of meaningful political participation for all interested citizens. What the marketplace of ideas does offer is a much needed counterweight, both conceptual and rhetorical, to illiberal attitudes about authority and change on which the censorial mentality thrives. It honors certain character traits—inquisitiveness, capacity to admit error and to learn from experience, ingenuity, willingness to experiment, resilience—that matter in civic adaptation no less than economic. It devalues deference and discredits certitude, and in the process holds various forms of incumbent authority accountable to standards of performance. It offers a reason to interpret the First Amendment to protect some gestures of opposition and resistance that have nothing to do with dialogue or dialectic.

Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 SUP. CT. REV. 1, 45–46 (2004).

10. See Robert Post, Debating Disciplinarity, 35 CRITICAL INQUIRY 749 (2009).

11. See, e.g., Richard Lewontin, Billions and Billions of Demons, N.Y. REV. BOOKS, Jan. 9, 1997, at 28. (“[G]iven the immense extent, inherent complexity, and counterintuitive nature of scientific knowledge, it is impossible for anyone, including non-specialist scientists, to retrace the intellectual paths that lead to scientific conclusions about nature. In the end we must trust the experts and they, in turn, exploit their authority as experts and their rhetorical skills to secure our attention and our belief in things that we do not really understand.

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