Free Speech and Justified True Belief

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons. And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally focused on truth alone, as if all true beliefs must be treated equally. This thin account leaves the epistemic theory vulnerable to withering criticism, especially in a “post-truth” era. This Article suggests that the epistemic theory of the First Amendment might be reframed around a different value: not truth alone, but knowledge. Beginning with the tripartite definition of knowledge as justified true belief, philosophers from Plato until the present day have tried to account for what makes knowledge distinct and distinctly valuable. And in many ways law, too, already accounts for the existence and value of justifications, not just true beliefs. Identifying and exploring those threads of constitutional theory and doctrine can help provide a richer account of the cognitive First Amendment at a time when it is sorely needed. Doing so can also help resolve thorny doctrinal problems like those involving professional speech and institutional deference

Defining 'Speech': Subtraction, Addition, and Division

In free speech theory ‘speech’ has to be defined as a special term of art. I argue that much free speech discourse comes with a tacit commitment to a ‘Subtractive Approach’ to defining speech. As an initial default, all communicative acts are assumed to qualify as speech, before exceptions are made to ‘subtract’ those acts that don’t warrant the special legal protections owed to ‘speech’. I examine how different versions of the Subtractive Approach operate, and criticise them in terms of their ability to yield a substantive definition of speech which covers all and only those forms of communicative action that – so our arguments for free speech indicate – really do merit special legal protection. In exploring alternative definitional approaches, I argue that what ultimately compromises definitional adequacy in this arena is a theoretical commitment to the significance of a single unified class of privileged communicative acts. I then propose an approach to free speech theory that eschews this theoretical commitment

The Changing Discourse of the Supreme Court

[Excerpt] “Academics, judges, and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most American citizens. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices. Some also speculate that a greater reliance on law clerks might be fueling a shift. Regardless of the reason for the shift, if such a shift is truly occurring, it could have important repercussions, depending on how one views the purposes of the Supreme Court’s opinions and the audiences to whom they are directed. If, as some academics assert, Supreme Court opinions are directed, at least in part, toward the public and are designed, at least in part, to advise the public about legal rights and responsibilities and to build public confidence in the rule of law by demonstrating a rational and transparent decision-making process, then unreadable Supreme Court opinions undermine those goals. If, however, Supreme Court opinions are simply directed to the parties before the court, other courts and agencies, lawyers, and law students, the shift is less problematic.

The Intersection of Natural Rights and Positive Constitutional Law

In this brief essay, the author describes what he sees to be the unavoidable connection between natural law--or, more accurately, natural rights--and the positive law that is the subject of constitutional adjudication. This connection would exist whether or not there is a conceptual distinction between natural and positive law of the sort that Professor Fred Schauer maintains in his article, Constitutional Positivism. Because of this connection, judges in a world in which legal positivism is true should act, on occasion, as though the natural rights approach is\u27 correct. And if this is true then, the author maintains, the natural rights position, in some important sense, is correct. Finally, the author takes issue with Professor Schauer\u27s intimation that the appropriate do main of moral reasoning is limited largely to constitutional adjudication and to the Supreme Court of the United States

Natural Law as Professional Ethics: A Reading of Fuller

In Plato\u27s Laws, the Athenian Stranger claims that the gods will smile only on a city where the law is despot over the rulers and the rulers are slaves of the law. This passage is the origin of the slogan the rule of law not of men, an abbreviation of which forms our phrase the rule of law. From Plato and Aristotle, through John Adams and John Marshall, down to us, no idea has proven more central to Western political and legal culture. Yet the slogan turns on a very dubious metaphor. Laws do not rule, and the rule of law not of men is actually a specific form of rule by men (including, nowadays, a few women). These rulers are not slaves to anything. Furthermore, the construction of the slogan -rule of law and not of men-has unfortunate connotations. It suggests that the personal qualities of the human rulers required to secure the rule of law are nothing more than forbearance and disinterestedness-a resolution to stay out of law\u27s way. What if the rule of law is more demanding than this? What if it turns out to be a particularly elaborate and technically ingenious form of the rule of (let me say) men and women? What if the rule of law establishes a moral relationship between those who govern and those whom they govern? Furthermore, what if sustaining this relationship requires certain moral attitudes and virtues on the part of the governors that are not simply disinterested forbearance, and not simply the moral attitudes and virtues required of everyone

Colored Speech: Cross Burnings, Epistemics, and the Triumph of the Crits?

This Essay examines the Court\u27s recent decision in Virginia v. Black. It argues that Black signifies a different approach to the constitutionality of statutes regulating cross burnings. It shows how the Court\u27s conservatives have essentially accepted the intellectual framework and the mode of analysis suggested previously by the critical race theorists. In particular, this Essay explores the role that Justice Thomas plays in the case. The Essay explains Justice Thomas\u27s active participation as a matter of epistemic authority and epistemic deference

Legal Information and the Development of American Law: Writings on the Form and Structure of the Published Law

Robert C. Berring\u27s writings about the impacts of electronic databases, the Internet, and other communications technologies on legal research and practice are an essential part of a larger literature that explores the ways in which the forms and structures of published legal information have influenced how American lawyers think about the law. This paper reviews Berring\u27s writings, along with those of other writers concerned with these questions, focusing on the implications of Berring\u27s idea that in the late nineteenth century American legal publishers created a conceptual universe of thinkable thoughts through which U.S. lawyers came to view the law. It concludes that, spurred by Berring and others, the literature of legal information has become far reaching in scope and interdisciplinary in approach, while the themes struck in Berring\u27s work continue to inform the scholarship of newer writers