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Democracy, Expertise, and Academic Freedom

Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State

Copyright Date: 2012
Published by: Yale University Press
Pages: 224
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  • Book Info
    Democracy, Expertise, and Academic Freedom
    Book Description:

    A leading American legal scholar offers a surprising account of the incompleteness of prevailing theories of freedom of speech. Robert C. Post shows that the familiar understanding of the First Amendment, which stresses the "marketplace of ideas" and which holds that "everyone is entitled to an opinion," is inadequate to create and preserve the expert knowledge that is necessary for a modern democracy to thrive. For a modern society reliably to answer such questions as whether nicotine causes cancer, the free and open exchange of ideas must be complemented by standards of scientific competence and practice that are both hierarchical and judgmental.

    Post develops a theory of First Amendment rights that seeks to explain both the need for the free formation of public opinion and the need for the distribution and creation of expertise. Along the way he offers a new and useful account of constitutional doctrines of academic freedom. These doctrines depend both upon free expression and the necessity of the kinds of professional judgment that universities exercise when they grant or deny tenure, or that professional journals exercise when they accept or reject submissions.

    eISBN: 978-0-300-14864-0
    Subjects: Law, Education

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Acknowledgments
    (pp. vii-viii)
  4. Introduction
    (pp. ix-xiv)

    As I type these words, I gaze out at my backyard, and I know that there is a large oak in the northwest corner of my lawn. I have knowledge of this oak both because I can see the tree and because I have reason to trust my senses. My knowledge of this oak should be contrasted to my knowledge that cigarettes cause cancer. I cannot acquire the latter form of knowledge merely by observing the world and by trusting my senses.

    In fact I have learned about the carcinogenic properties of cigarettes by studying the conclusions of those whom...

  5. 1 Democratic Legitimation and the First Amendment
    (pp. 1-26)

    In this book I consider the First Amendment as a source of judicially enforced rights. The First Amendment serves this function by establishing distinctive doctrinal tests and standards that courts use to evaluate the constitutionality of government regulations. Following Frederick Schauer, I distinguish between First Amendment “coverage” and First Amendment “protection.”¹ The former refers to the kinds of government regulation that should be subject to the special scrutiny exemplified by the distinctive doctrinal tests of the First Amendment; the latter refers to the content of these tests, which determines what courts will allow and what they will forbid. An essential...

  6. 2 Democratic Competence and the First Amendment
    (pp. 27-60)

    The First Amendment guarantees the free formation of public opinion. But public opinion is, in the end, merely opinion. Hegel recognized this early on:

    The formal subjective freedom of individuals consists in their having and expressing their own private judgements, opinions, and recommendations on affairs of state. This freedom is collectively manifested as what is called “public opinion,” in which what is absolutely universal, the substantive and the true, is linked with its opposite, the purely particular and private opinions of the Many.¹

    It is precisely because public opinion reflects the subjective perspective of individuals that the First Amendment prohibits...

  7. 3 Academic Freedom and the Production of Disciplinary Knowledge
    (pp. 61-94)

    The value of democratic competence is undermined whenever the state acts to interrupt the communication of disciplinary knowledge that might inform the creation of public opinion. Lower federal courts extended First Amendment coverage to BAPCPA because they considered the statute to have this purpose and effect. The question I address in this chapter is whether existing First Amendment doctrine seeks to safeguard the value of democratic competence by extending First Amendment coverage also to state actions that inhibit thecreationof expert knowledge.

    There is an obvious candidate for such doctrine. First Amendment jurisprudence has protected academic freedom for more...

  8. Conclusion
    (pp. 95-100)

    At the very outset of the modern age, Francis Bacon grasped that “knowledge it selfe is a power.”¹ There is “no doubt,” Bacon concluded, but “the sovereignty of Man lieth hid in knowledge.”² Our own democratic era has drawn an important implication from Bacon’s insight. A people without knowledge is a people without power or sovereignty. To preserve the self-government of the people, we must preserve their access to knowledge. We must safeguard their democratic competence.

    T. S. Eliot famously lamented,

    Where is the wisdom we have lost in knowledge?

    Where is the knowledge we have lost in information?³


  9. Notes
    (pp. 101-160)
  10. Index
    (pp. 161-177)