By John Leschak
On February 12 Bob Post, professor of constitutional law at Yale Law School, gave a complex lecture on free speech, democracy and knowledge. His audience was the University Law faculty, who discussed Post’s theories after the lecture.
According to Post, the essence of democracy is the free
formation of public opinion. “We say the First Amendment is the guardian of democracy, even though it may set aside majoritarian enactments, because it keeps the process of free public opinion formation open,” said Post. However, he noted that some areas of knowledge, like science and medicine, are
outside the area of public opinion. Therefore, these areas are not protected by some essential rules of the First Amendment, such as the prohibition on
content discrimination.
“For example, if your
dentist gives you bad advice, you can sue him for malpractice,” Post explained. “The dentist can’t argue in defense that there is free marketplace of ideas. Instead, because he is an ‘expert’ on whom the law says you are entitled to rely, the rules of free speech do not apply.”
Post also stated that there are times when the First Amendment protects practices of knowledge production outside the public sphere. For example, the most recent bankruptcy act prohibits lawyers from telling their clients that they have a right to incur debt while in contemplation of bankruptcy.
“Normally, the relationship between a lawyer and client is like the relationship between dentist and patient-there is no First Amendment protection,” Post said. “Yet, all courts that have considered this provision of the act have ruled that it violates the First Amendment. Unlike a malpractice action, which enforces the standards of the profession itself, the bankruptcy law has the state politically overriding the
profession’s standards.” In simpler terms, the First Amendment is involved if the law forces a
professional to tell their client “X is false” when according to the profession “X is true,” or when it prevents them from saying X is true when X is true.
Post concluded that when the law forbids professionals from stating the truth, the law should be judged unconstitutional. For example, the First Amendment would be implicated if a state passed a law that prohibits
doctors from telling their patients that smoking causes cancer since it is clearly true that smoking causes cancer.
The question is, how does the court know whether or not it is true that a client has the right to incur more debt, or that
smoking causes cancer? “It must be true or false in reference to the professional standards at issue,” said Post. “Thus, the disciplinary standards of expert information have independent constitutional status. If truth or falsity matter, the Constitution must recognize these autonomous areas of knowledge.”
One University professor responded to Post by quoting Milton’s poem “Areopagitica.” “Let Truth and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter,” the
professor said. But Post
disagreed. “I don’t recite Milton to my legal assistant, I ask them whether or not they got it right,” Post said with a grin.