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Tuesday, October 18, 2011

Alvarez and the First Amendment's Epistemological Crisis

Thanks to TJ for posting below on Alvarez, the Stolen Valor Act case, on which the Court just granted cert.  Eugene Volokh has an excellent post about it here, which also contains links to earlier posts on that subject.  I also recommend the pieces on this issue by Mark Tushnet and Chicago law student Josh Parker.  (Kudos to Josh for a terrific student piece and for getting ahead of the curve.)  

I wanted to post an idea about this area that I've been thinking about lately for a variety of reasons, and which will be the subject of a piece by me in the next few months.  It seems to me that we could see the scholarly interest in this case (see also these pieces by Ashutosh Bhagwat and Fred Schauer), which addresses some questions that the Supreme Court has danced around but never quite answered, as part of a broader concern with what we might call the First Amendment's epistemological crisis.  Particularly but not exclusively if one starts from the standard truth-seeking justification for freedom of speech, then an interesting question presented by law and scholarship in this area is how we know what the truth is, how and when we know whether particular speech constitutes "facts" or "opinions," and how we know whether particular instances of fact-based speech are "true" or "false."  Of course, we sometimes do know that particular statements are true or false: someone either served in the military and received military honors or didn't.  Even in those cases, however, we may still ask, not whether we know this, but how we know it, who ought to be left with this determination--courts, juries, legislators, citizens, etc.--and how the courts ought to go about addressing these issues and reviewing the decisions of finders of fact in such cases.  We also will want to know what value true and/or false speech have for purposes of public discourse and the First Amendment.  Even if we all agree that particular statements are true or false, moreover, and on what value those statements have for public discourse, we may still, for a variety of reasons, end up with a second-order approach that only imperfectly and indirectly corresponds to that consensus.  These can be interesting and thorny questions, and it may be that our difficulty in dealing with them suggests a deeper crisis about truth and knowledge in First Amendment law.

Some of the same issues arise in another area that has drawn a good deal of attention recently: the role of various speech or knowledge-formation institutions, such as universities or professional speech.  An oft-quoted line from First Amendment jurisprudence suggests that there is no such thing as a false idea, but at the same time public discourse depends on the existence of places in which true facts are generated, ideas are held up to disciplinary standards and expert scrutiny, and expertise means something.  It would be a bad thing if a public university could not deny tenure to someone on the basis that her ideas, if not "false," were sloppily generated.  For whatever reason, there is an increased interest in the role of these institutions in generating knowledge and expertise, and how they fit into First Amendment doctrine.  I have written about this issue in a number of articles, and have a forthcoming book on the subject titled "First Amendment Institutions."  Robert Post, the dean of Yale Law School and a leading First Amendment scholar, has a forthcoming book on expertise and the First Amendment.  Although it raises a different set of epistemological questions, the recent debate over the ministerial exception arguably involves a parallel set of issues, and so do some recent unconstitutional conditions cases involving state laws requiring physicians to provide particular statements or information to patients considering obtaining an abortion.  Moreover, these questions arise at the same time that we are continuing to work through the leveling effect of the Internet and crowd-sourcing technologies--an era in which many people have wondered whether our traditional institutions ought to be trusted at all and whether we can, in a sense, popularize the production of knowledge and expertise.  

It seems to me, in short, that we can see a lot of these recent cases and pieces of scholarship as converging, more or less, around a set of epistemological questions about the First Amendment, truth and falsity, and public discourse.  It's always interesting to see a trend emerging, and to ask questions about why it is emerging.  I look forward to the discussion that will result.   

Posted by Paul Horwitz on October 18, 2011 at 10:44 AM in Paul Horwitz | Permalink


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