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Monday, November 07, 2011

Horwitz on Bhagwat on Facts and the First Amendment

On Jotwell, I have a short piece mostly lauding Ashutosh Bhagwat's draft article, Details: Specific Facts and the First Amendment.  It's a terrific piece, and as I write in the review and have said here before, it's part of an intriguing trend:

Bhagwat is riding at the crest of a wave.  The status of facts under free speech law is of increasing interst to various leading First Amendment scholars.  They include Frederick Schauer, whose paper Facts and the First Amendment I reviewed here some time ago; Eugene Volokh, who has written on similar issues in his article Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005); Robert Post, who in a forthcoming book discusses the place of knowledge-generation within First Amendment law; and Mark Tushnet, whose recent paper on the Stolen Valor Act discusses “the constitutionality of regulating false statements of fact.”   Bhagwat’s paper, with its focus on true rather than false statements, makes a valuable contribution to this emerging literature.  But its value lies in its very existence as well as its substance.  When this many leading scholars zero in on an issue, that is good evidence of a problem of some kind.

The Supreme Court's recent cert grant in the Stolen Valor Act case makes these discussions all the more important, and Bhagwat's paper makes a valuable contribution to this discussion.  I do have my criticisms, summed up in this passage:

Bhagwat’s focus on particular kinds of restrictions on factually detailed speech gives us something more than the trees but something less than the whole forest.  In particular, he neglects three questions that may yield less of an immediate doctrinal payoff, but have a [broader] relationship to the doctrinal and epistemological difficulties that seem to plague the courts in this realm.  First is the question of institutional allocation: the key issue with respect to factually detailed speech may not be how much of it should be regulated, but who regulates it.  Second, Bhagwat’s suggestion that much factually detailed speech is less valuable to public discourse and self-governance than pure opinion speech is questionable.  Opinions may constitute the surface of public discourse, but they rest on a foundation of facts.  Opinions are plentiful and cheap; good facts are hard to come by.  As important as the question of how much we should protect factually detailed speech, then, may be the question of how we protect the generation of factually detailed speech.  Finally, and on a related point, it is worth asking how we can encourage the production of facts, and how Bhagwat’s approach contributes to the maintenance of sound incentives to produce facts.

Those criticisms, right or wrong, hardly detract from this excellent paper on an important emerging (or re-emerging) topic.  Download it while it's hot, and so on. 

Posted by Paul Horwitz on November 7, 2011 at 08:32 AM in Paul Horwitz | Permalink

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