By Robert C. Post
A leading American criminal student bargains a shocking account of the incompleteness of winning theories of freedom of speech. Robert C. submit exhibits that the commonplace realizing of the 1st modification, which stresses the “marketplace of principles” and which holds that "everyone is entitled to an opinion," is insufficient to create and look after the professional wisdom that's helpful for a latest democracy to thrive. For a latest society reliably to respond to such questions as no matter if nicotine factors melanoma, the loose and open alternate of rules needs to be complemented by means of criteria of medical competence and perform which are either hierarchical and judgmental.
Post develops a idea of First modification rights that seeks to provide an explanation for either the necessity for the unfastened formation of public opinion and the necessity for the distribution and construction of workmanship. alongside the way in which he bargains a brand new and worthwhile account of constitutional doctrines of educational freedom. those doctrines count either upon loose expression and the need of the categories judgment that universities workout once they furnish or deny tenure, or that pro journals workout after they settle for or reject submissions.
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Extra info for Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State
In fact I have learned about the carcinogenic properties of cigarettes by studying the conclusions of those whom I have reason to trust. ” How did these experts come to know that cigarettes are carcinogenic? Certainly not in the same way that I came to know about my oak tree. They instead deployed the full and elaborate apparatus of modern epidemiological and statistical science. This science consists of practices of knowing that can be acquired only through training and instruction. The practices create forms of knowledge that are constantly expanding through speculation, observation, analysis, and experiment.
From the constitutional point of view, therefore, public opinion is a verb rather than a noun. Public opinion does not possess the internal consistency or integrity that is characteristic of agents who must decide and act. It is instead transactional and subjectless. The object of the First Amendment might most precisely be characterized as protecting the open processes by which public opinion is constantly formed and reformed. Like any form of government, a democracy must make decisions, even irretrievable ones, and it must act on these decisions with consistency and integrity.
Consider a simple case. 56 But the American Dental Association and state dental boards consider amalgams safe and appropriate, and they have therefore punished dentists for advising their patients to remove their amalgam fillings. Such advice is thought to expose patients to unnecessary risk and expense. Dentists cannot assert a First Amendment defense to this discipline, just as they generally cannot assert a First Amendment defense to suits for medical malpractice based upon bad advice. It makes no difference how important it may be to the autonomy of an individual dentist to communicate what he believes to be the truth about dental amalgams; it makes no difference how passionately any particular dentist may wish to safeguard the health of his patients.