Note: This is an unedited rush transcript. Please check any quotations against the audio recording.
Nico Perrino: All right. Welcome back to So To Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations.
As always, I am your host, Nico Perrino. And today we are recording from Washington DC. And I have the privilege and honor of sitting here with two distinguished guests. The first of which, of course, is Ron Collins. He is a frequent guest on this podcast and the editor of FirstAmendment.news – also have a new course book out for First Amendment education for law students, which is called First Thing First, right?
Ron Collins: For college students.
Nico: College students.
Ron: Law students’ book is about a year and a half away.
Nico: Ah, okay.
Ron: And that will sell for $10.00.
Nico: Yeah, the big selling point of this new book is that it’s what?
Ron: $2.99 on e-book, with 900 links. And paperback is $16.00. So, we plan to put casebook – major casebook houses out of business.
Nico: Yeah. Ron is prolific in his writing. He’s written many books, as you all know, because we’ve discussed many of them on this podcast. But our other guest today is Professor Joseph Blocher. He is the Lanty L. Smith ’67 Professor of Law at Duke. And he is the author of, as Ron points out, something like 16 articles on the – law review articles on the First Amendment. I don’t know if you counted correctly.
Joseph Blocher: They call that 1/10 of a column once you get to 16.
Ron: But that doesn’t count the Second Amendment articles that he’s done.
Nico: Are the First and Second Amendment your main areas of focus?
Joseph: They are. I’m gonna make it to the Third Amendment at some point and have. I’m sure there’s a pod –
Nico: Someone does.
Joseph: There’s gotta be a podcast on quartering of troops, and I’ll get to do that. But, no, the First and Second Amendments and, actually, sometimes their overlap I think and write a lot about and happy to talk about.
Nico: Well, it’s an honor to have you sitting with us today on the podcast. The reason you’re here today is because you wrote two new law review articles that came out back-to-back or within the same season. There’s one about bans. And then, there’s another – and where did that come out?
Joseph: That came out in the Yale Law Journal.
Nico: Yale. And there was Harvard and Yale, and I didn’t know which one was which. But the other one, which I think will be the main focus of our conversation today, is “Free Speech and Justified True Belief.”
And, Ron, you really turned me on to this article in one of your FirstAmendment.news articles because it was the lead story. You said it sparked a lot of questions for you. And so, I gave it read, and then we learned that Professor Blocher would be here in DC. So, we decided to get together. So, let’s just jump right in.
Ron: May I just say something at the outset?
Nico: You can, of course.
Ron: Thank you. I really believe that this article – I mean, the two articles are really incredible. But I think this one that we’re gonna be discussing today is one of the most important contributions to First Amendment scholarship I’ve read in a long time. And that’s why I’m delighted to be here with Joseph today to discuss it because I think there’s so many important ideas in this article. Actually, it should be a book, and I’ve been telling Joseph that. So, that’s the reason why, after reading it, I thought it was important that the readers of FirstAmendment.news know about the work that Joseph is doing.
Nico: Well, very good. I know you have a bevy of questions that you wanna ask him. I’m gonna tee this up by reading the – if you’ll indulge me – the first two paragraphs from you abstract in this article. And then, I’ll take moderator’s privilege here and ask the first question.
Nico: So, from the abstract, you write, “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 criticisms, especially in a ‘post-truth’ era.”
Your article, Professor Blocher, suggests that the epistemic theory of the First Amendment might be reframed around a different value, not truth alone, but knowledge. So, by way of starting here generally, this might sound like a silly question. But why does defining the values, the constitutional values that the First Amendment is meant to advance – why do they matter?
Joseph: This is a great question. And I appreciate you reading the abstract. It gave me a chance to let my head kind of come back from swelling after Ron’s really generous introduction about the piece.
Ron: Truth is my defense.
Joseph: Fantastic. Knowledge is mine. Uh oh, I’m in trouble already. I’m certainly not going to pick that battle. I’m happy to die on that hill. I think that the reason that a theory or a value underlying First Amendment doctrine or theory really matter is that really any account of why we would protect against a government, a government’s inclination to limit free speech has to have at its heart some kind of normative principle, some thing we’re trying to advance. And there are lots of different possibilities out there.
The sort of traditional three, as I’m sure all your listeners know, that people often refer to are democracy, some form of individual autonomy, or truth. And I have always been drawn – although, I think it may be less fashionable these days – to the third of those, the sort of truth-based, cognitive, epistemic, sort of –
Nico: Although, you write in your article that you kinda like to bring in all those principles and values.
Joseph: I do. I think there’s no one.
Joseph: I think there’s no single principle. And I’m not trying to argue for one here. I think they’re contextual. I think they change. I think that they vary over time. But I think we as scholars can add value really by sort of – by thickening and revisiting kind of in the way that I think a truth-based account or a knowledge-based account of the First Amendment requires us to do with any belief, continually test, continually revise. And so, this article is an effort really to kind of dig deeper on the traditional epistemic account.
Nico: Yeah. Well, let’s lay out for –
Ron: Can I just add something?
Nico: Yeah, go for it.
Ron: So, I think, in addition to the importance of normative values, one of the things – if we look at a text, be it a municipal ordinance or the Constitution, the words alone are never enough, right. We need some way to either explain those words – I should say instead of either – to explain those words and to limit them, right. We need some limiting principle.
For example, when the First Amendment says, “Congress shall make no law,” does it literally mean no law? What does the word “abridge” even mean? So, in order to give some meaning to those words and also place some limitation on them, all right, we need some, if you will, values, some checking principle. And that’s why these discussions about values and or what I would call checking principles are so important to our discussion of the First Amendment.
Nico: So, let’s define those three values generally for our listeners who might not be familiar with them. The autonomy argument is the libertarian argument, the argument that, by nature of being human, we have the right to be who we are and to speak our minds and that only a tyrannical government would limit your ability to do that in any significant way.
They democracy argument is the argument that you need the ability to speak out in order to participate in a participatory democracy, essentially, and that limiting your ability to speak out limits the ability for that democracy to function.
And then, the truth argument, really popularized by Holmes, but as we were talking before the podcast had – well, Milton. Goes back to Milton in Areopagitica, who knew truth to be put worse to the wear when confronted in a free and open encounter with error, to loosely quote it.
Joseph: That was almost exactly quoted. That was very well done, Nico. Yeah.
Nico: I try and reread Areopagitica for all of its flaws. But the problem with the truth argument that you need free speech, free expression in order to get to the truth is that sometimes truth doesn’t always win out. It’s kind of a romantic idea, this idea that truth will win out.
So, it’s been opened up, as you write in your article, the criticism especially, in what many have called the post-truth era, the era where people can go into a pizza shop here in Washington DC because they think there’s some sort of sex ring happening there organized by politicians – and the overall sort societal-wide rejection of truth that has existed in many spheres. And I don’t know that there are many within the First Amendment community that I talk to today who really hang their hat on that justification. They seem to think it’s an important value. But more often, I’m seeing people say, well, free speech is important for all three of these reasons.
I’ll put my cards on the table. For me, the main value that I have in justifying my free speech beliefs is that it’s – and this is taken from my boss, Greg Lukianoff – it’s important to know the world as it is, knowledge. So, while the truth might not be there, there’s a truth to knowing the untruth.
Joseph: That’s a really smart point, Nico. And actually, your account of the three major competing schools of value, I think, is worth just reemphasizing, that those three, as you really well described, are not hemmed off from one another. They certain overlap. They interact. You can believe in a democracy that is – as Robert Post has argued – a democracy that relies on knowledge, right. These two may be intersecting.
In the article – and I’m not plowing any new ground here – I describe those as the external challenges to the truth-based view, which is to say truth is not the end. Or epistemic values, cognitive values, are not the end of the First Amendment. It is more important to promote a participatory or a legitimate democracy. Or it’s more important to promote individual autonomy. My suspicion though is that even those theories can’t totally escape the value and the importance of some form of epistemology, right.
A democracy relies on – a functioning democracy relies on expert knowledge of one kind or another. We may disagree about what those expert knowledges are and who we can rely on, but that’s important. And since we’ve already got Milton on the table, we might as well put Kant on the table as well – that people who believe in autonomy also believe that a lie, an untruth, interferes with individual autonomy, right. So, truth suffuses all of these things, or some cognitive value does.
But that doesn’t save us from what you just put on the table with the person who came up from North Carolina with an AR-15 to break up this sex ring in a pizza parlor basement, which is a perverse commitment to truth, right – a person who deeply believed that what was happening in this pizza parlor basement was a child sex ring run by apparently democratic leaders – but is not itself grounded in anything that most of us would regard as any kind of truth. This is the sort of post-truth challenge.
And as you say – and this confirms my suspicion that it’s unfashionable – I think most free speech scholars are moving away from a view that puts the cognitive and epistemic values at the middle. And so, my article in some sense is an effort to reclaim that territory by reframing the value, if that makes sense.
Nico: Yeah. Well, do you think at any point in this century or this past century that the truth justification was the predominant justification? If you can give us kind of that history.
Joseph: It’s a good point. I’ll here quote my friend and colleague across the way, Bill Marshall at UNC, that this view that the marketplace of ideas is the best test of truth has been virtually canonized in doctrine. You see repeated –
Nico: Yeah, it’s almost like a tic. We just kinda –
Joseph: Absolutely. And actually, the way you describe it there is nice because I think – because it’s become a tic and almost reflexive, we may have – and I say we; this is not to exclude myself – taken for granted what it really means and not really interrogated the difficulty of a truth-based or knowledge-based account. It’s really tricky to know, as Ron and I have discussed before, what did Holmes himself mean by truth. That itself is a really hard question.
Nico: You have somewhere in here – and I’m trying to find it as I flip the page. Didn’t Holmes say it’s like the road I’m on or the path?
Joseph: “The road I can’t help traveling.” And he uses this phrase –
Nico: Which is another way of saying the thing I can’t help believe.
Joseph: And he actually uses that phrase as well, “Can’t help.” He refers to the truth as really a series of can’t helps, which is –
Nico: Well, in that case, the AR-15 guy –
Joseph: He couldn’t help it.
Nico: – he couldn’t help but believe it. Yeah.
Joseph: He couldn’t help but believe it. But what’s challenging about that I think is – well, many things. But one is, if you put that together, okay, the marketplace metaphor. And as Ron notes, he doesn’t use actually the phrase “marketplace of ideas.” That doesn’t come till much later. But the marketplace metaphor that credit to Abrams in 1919 puts truth at the center – best test of truth, etc. – but it doesn’t give a definition of truth. If you look to his personal correspondence, you see these references to “the road I can’t help traveling.”
If you put those two things together, they fit together strangely. What’s the point of a competition among things you can’t help? Where’s the room for evolution there? Where’s the room for change? And to me, that raises really hard questions about what’s the evolution. What’s the metaphor here we should really be looking for if we can’t help what we believe in the first place? This article makes maybe a little bit of headway on that, but I try to address it some others too. I think it’s really hard.
Ron: So, one of the things I would add, the three values that we discussed earlier – that you were discussing earlier, as David and I argued in a book we did called The Death of Discourse, I think they overlooked something very fundamental, and that is – and this goes to the point that you talk about in terms of – Joseph, in terms of what constitutes proper justifications and how do those justifications work in a particular culture.
You have to understand that values don’t exist in a vacuum. They exist in a culture. In this country, they exist in a highly capitalistic culture. In this country and other countries, they exist in a world very much influenced by technology, all right. You can have all of these values, but when the technology is poured into the beaker of those values, it affects those values, all right. When highly advance capitalism is poured into the beaker of those values, it affects those values.
The other point we mentioned is the role of passion in a democratic society. When people act in a highly passionate way, all right, that, likewise, affects those values, such that it may well be that if people stop believing in the value of truth, all right, if it becomes largely irrelevant, then all of this discussion about truth is of no moment, all right.
I think that one of the great values of Joseph’s article is that he says let’s take our eyes, if you will, this fixation, for a moment off truth. Not to walk away from it, right, but let’s talk about knowledge. And let’s talk about the preconditions necessary for having some, if you will, legitimating principle when it comes to knowledge, such that we can say that X is true and Y is false. Do we say that categorically for all times, for all purposes? No, but we do need a red light to tell us when not to cross and a green light. We need some rules of the road as it were. And so, I think in all of this discussion, one of the things that I think is really important is to think about the context, as I call the beaker, into which those values are poured and what affects them.
And I think, in this regard, technology is a very important concern. And I say this for this reason. We talk about knowledge, all right. In Plato’s Phaedrus, Socrates makes the argument that knowledge is first and foremost based on logos, discussion, people talking. And he makes a strong argument against writing, all right. He says writing is dead. You can’t cross-examine it, all right. Somebody else has done the work. Well, essentially, what’s happened in modernity is Google has done the thinking for us. It has given us the answers. It has given us the shortcuts. We don’t have to go through this process.
So, what happens is a lot of these First Amendment theories are really based on pre-technology eras. In fact, I will just say this, and we can move on. But if you think about what I think is perhaps the most important word or one of the most important words in the First Amendment, it’s the word “press.” Press was protected, not as an institution, but as a technology. And there was a reason.
Nico: Although, there’s disagreement about that.
Ron: No, okay. But, okay. But there was a reason I’m willing to say – but there’s a reason why it would be protected as a technology. Because it was that technology that had basically wrecked havoc on the Catholic Church, all right, and also wrecked havoc on a lot of political regimes because truth now could be transported in time and in distance. So, there was something, a clear and present danger, about the technology. And I think any discussion of the First Amendment that overlooks the means of communication overlooks something fundamental.
Joseph: If I can add on to that, I think what you’re saying, Ron, is exactly right and is actually one of the central challenges that I can’t say I resolved but try to address in the article, which is that given – take the internet as sort of the technology of the moment with regard to the spread of truth. I think it’s undoubtedly correct that people today have more access to more truths as just a total number, if you can count them up, than ever before. Google is – and some people have argued this – kinda of part of our own extended minds. This is part of the knowledge that – I hate to use the word knowledge in a loaded term – the truth to which –
Joseph: Not as a – in the technical sense, but just the truth, the information to which we have access. But I think many people share the instinct that this has degraded our ability to actually know things in a true sense. And there’s lots of ways to cash that out. It could be that we know more total truths, but we are also confused by more total falsehoods. The sort of ratio between the two has changed. And I think scholars of the marketplace of ideas haven’t really grappled with the potential undermining cost of that.
The other thing is that I think what the – the difference between internet, let’s say online speech – comment section speech we’ll say, to give it sort of the lowest possible footing, and the kind of logos discourse that you might experience in whatever your favorite professional setting is is big, even if the same propositions are being articulated.
If I go in for a surgery, and I’m wondering if I’m gonna lose my big two in the surgery, and I go into an online comment section and I ask somebody, and I get a whole bunch of vituperative attacks saying, “Of course you’re gonna lose your toe,” and then I go to my – and base on nothing, of course. And then I ask a surgeon, and the surgeon tells me the same thing, those two propositions have the same truth value. They’re saying the same thing. But I think that everybody intuitively recognizes that an internet troll said it and a surgeon said it. I think the surgeon’s statement has something more to it even though it’s the same proposition.
And to me – and this what I’m trying to tease out in the article – that has something to do with, as you would say, the justifications. A surgeon comes to that belief based decades of training and experience. And an internet comment troll – an internet troll comes to that just based on some kind of instinctual desire to stick it to someone.
Nico: So, not to characterize your article incorrectly, but you advocate for giving privilege almost to expert opinion, opinion that’s, you put it, justified true belief – opinion from doctors, opinion from nutritionists, opinions from lawyers – when they’re commenting of course on their field.
Joseph: I think that’s right. The only thing I would walk back a little bit is to say I think justifications matter. And I’m pretty agnostic or try to be in the article about which justifications count. So, I think it matters why we believe what we believe. I can’t say or show in this article – and maybe this is why Ron’s right; I have to write a book and think through it more – which are the justifications that should be privileged over others. In that particular hypo, absolutely I care more about the doctor’s opinion than someone I met online.
Ron: Joseph, how are justifications in your view – and this is the type of question – it’s not a rhetorical question because I don’t know. How are they legitimated?
Nico: Yeah, that’s what I was gonna ask because cards on the table –
Ron: Great minds think alike.
Nico: Well, no. This might surprise Professor, but I used to work for the Institute for Justice –
Joseph: Oh, yeah.
Nico: – which does First Amendment litigation –
Nico: – in licensing regimes, often where those licensing regimes intersect with speech, so tour guides for example or the paleo blogger in North Carolina, who was told he can’t give people advice about his paleo diet or even talk about his paleo diet because it would conflict with nutritional licensing regimes.
So, there are some things where it’s clear as a society. We’ve determined you need to have sorta specialized knowledge because you’re taking someone into your own care – doctors, lawyers, for example. But there are margins around everything. And this is what makes the law difficult, right.
Joseph: Yeah. I completely agree. And I don’t know have an answer to that question and don’t purport to have one here. I think that what you just described there kind of – you can imagine the sorta two extreme views. Is there some special justification for the knowledge that tour guides have that justifies some kinda governmental intervention? It’s hard for me to imagine.
Joseph: On the other hand –
Nico: This is aside from standard business license.
Nico: You need an additional license –
Ron: That’s amazing.
Nico: – to tell a story.
Joseph: I don’t even know that, but that’s amazing to me. On the other had, there are ways in which – despite the fact that we don’t have a separate, clear doctrine of academic freedom, there are certainly way in which to pick on the opposite of the scale.
Educators, universities get a special kind of treatment that effectively exempts from what would otherwise be straightforward First Amendment principles, like viewpoint discrimination, right. The very basis of grading exams, of just choosing who to hire, promote, and tenure in a university is based on content and viewpoint discrimination, which would, if it were governmental action in a public sphere, clearly violate the First Amendment. But I think we’re okay with that – most people are anyway – because it’s understood that universities and education, higher education, play some kind of special role in pursuing truths that are properly justified.
Ron: Can I push back on that a little?
Joseph: Please do, yeah.
Ron: So, just a couple things. One of the problems – or I shouldn’t say – one of the issues that occurred to David Skover and I when we read Robert Post’s book on this subject was his – what we thought as his glorification of the university or what Alan Bloom would call a democratization of the university. And that is, if you look in the sciences today, they are heavily influenced in terms of their research at the big universities, heavily influenced by commercial interests, all right.
So, this idea, have some kind of Socratic exchange there, it really ignores, again, something central. We live in a highly capitalistic culture. These universities are highly dependent, particularly in the sciences, right, about funding from outside sources. Where does that funding come from? It comes from parties with, if you will, conflicts of interest. That’s where a lot of it comes – so this ideal that somehow there’s a certain sanctity in the university.
The other question – and this goes to Bloom’s point – is that Bloom argued years ago, The Closing of the American Mind, with increasing frequency what’s happened in the universities is democratization of truth, all right, that certain things are being cast out because they don’t comport with the popular belief. And in fact, this gets me to raise you a question – ask you question, Joseph. If I were to say what do you make of the following phrase, “The democratization of knowledge,” what does that mean to you, that phrase?
Joseph: That’s an interesting question. While I think about it, let me answer your question about universities and come back also to Nico’s question, which I haven’t fully answered either. So, I think – and this is probably where Post and I part ways. Although, I do have a lot of sympathy for his general position. I think it goes too far to say that everything a university does is essentially exempt from free speech principles. I think that’s wrong.
I think that it is true that, in a faculty meeting or in a classroom, the normal rules of viewpoint discrimination and content discrimination are essentially suspended. I think that is actually an area where it’s possible, and fair, and right to evaluate ideas and to sort of push them. And not every idea gets equal weight. If I were to come into my – I mean, I teach at a private university. But if I taught at University of North Carolina instead, and I were to come into my constitutional law class and start talking about flat Earth, I could be fired. And that would make sense. If I were to do that in a public square, I couldn’t even by sanctioned $5.00. That would violate the First Amendment.
So, I think there are these contextual areas where well-functioning universities at least, let’s say, are entitled to some type of deference. And I think it ties into this sort of knowledge generation function that they can play. The problem is – and this goes – I think the word that you both used earlier is “legitimation,” like how do you know when they’re doing it right, is a really hard question. Not everything that calls itself a university I think is entitled that kind of treatment.
It’s certainly true that commercial interests or others can pervert and sort of distort what universities are supposed to be doing. That is an institutional problem. I don’t have a good solution for it. To say that – gives the government more or less power as we see in many states, where state legislatures are trying to institute themselves more into universities is scary to me. I think the self-governance here is very important. So, I don’t have a good remedy for it.
The other thing I maybe don’t say clearly in the article but both these questions have raised is, if you’ve established a value, sort of guiding value, a lone star for your free speech approach, how – where does it kind of come in your analysis? Is it –?
Nico: Exactly, yeah.
Joseph: So, I’m glad that this is the question –
Joseph: – I thought was lurking around.
Nico: Well, because we can all agree that this justified true belief is an important value.
Nico: But the question, as in much of law, is how do you actually implement that value.
Joseph: Absolutely. So, let me say how you don’t do it. And this is what I think was sort of a concern maybe lurking between the last two questions. I think that free speech theories, including this one, go wrong if they mistake the value for a prerequisite of coverage. So, a truth-based account of the First Amendment, for example, shouldn’t say only true speech is covered. That’s of course wrong. The point is to put the value as the goal, as the end, right. See Alvarez, etc., etc., right. The marketplace of ideas is there to produce, to advance the value of truth in the traditional account, not to say only true statements get covered.
Likewise, on my account, I’m not trying to say that only justified true beliefs should be covered. That would be an even more narrow view of the First Amendment, but rather to say that we should be, in fact, broadening our view to look at the social practices, the justifications, the ways in which, when we interact, when we engage in the discourse that Ron and David have been writing about now for decades, we are actually advancing the values of the First Amendment as therefore. Now, that doesn’t necessarily mean protecting all professional speech or professional speech restrictions, but it means kind of focusing on those and not just the truth value of particular statements.
Ron: So, when we talked about the, if you will, preconditions or justifications, and we talked about expert knowledge, think of the following statement and why it’s important: Walter Cronkite is died. All right. What we mean by that, Robert – what I mean by that is that there was a certain currency, if you will, in the ’50s and ’60s given to Walter Cronkite and CBS News. If you will, it had a certain expert qualifying, legitimating principle, all right. That is simply no longer true, all right.
Some of us go to MSNBC for our truths. Some of us go to Fox News. Some of us go to Breitbart. Others go to The Nation, what have you. And others just rely on little sounds bites that come across – or eye bites, as David and I call them – that come across their phone. And I think this is really a real predicament. And one of the things that I found just fascinating – there’s so many places in this where I have great – I’m holding the reprint of Joseph’s article – I have great, and yes, and what have you. There’s other places where I have different statements, right.
Joseph: Yes and no.
Ron: But one of the questions you have – and I think this is absolutely crucial in our culture today – is, what is the value of a truth that no one believes? Isn’t that really where we are at today? Isn’t that just categorically, fundamentally the problem we have, that there is nothing, absolutely nothing, that can be put on the table as a truth that cannot be categorically denied no matter how false that categorical denial is? And what do we do in that situation? What do we do in that world?
Joseph: So, in that world in which, as you say, I think we are living, the – I think you used the work “problem.” I’d say the challenge, the disagreement is not about – and this is why I say the misuse of the – or overuse of the post-truth label to describe the era can be a little misleading. What people disagree about is not, I think, whether truth is important. Like, the post-truth label sometimes suggests, oh, nobody really cares anymore what’s true or not. That’s not true at all, I think. That’s not right.
I think people care very deeply about the truth. They just have deep disagreements about what is true. I think that the person who grabbed the gun and came to Comet Ping Pong believed very deeply that he was doing something right. As you say, it was the road he couldn’t help traveling, I-95 I guess it was. He came up from North Carolina.
That to me, as I said earlier, is sort of a perverse commitment to truth. The disagreement is about where the truth can be found. So, as you’re listing off these sort of sources where one might find truths that to me is where the real challenge is. And I’m not breaking any new ground to say that. I think if the article does anything it’s to try to bring that sort of debate or disagreement more into focus with the marketplace of ideas discussion, right. Those sources, those television programs, or online sources, or whatever they are, those are the justifications. Those are what the basis for belief could be, and those are, I think, where the deepest disagreements are.
So, to go back to my earlier answer to Nico’s question, I duck a little bit here what the justifications might be because, frankly, I think there’s a lot more that one has to work out than I can do in this article, but I think they matter. And I think that’s actually what people are fighting about more than anything. I’m here defending largely the role of universities, but I can’t do that in every case. And some people think that universities as a whole are of course disconnected from the truth and value. So, that to me is what I’m – I guess what I’m trying to bring to the fore of what’s otherwise a discussion about abstract truths and falsehoods, which as you say could exist in a world in which nobody know them or understands them.
Ron: Well, I think what’s really important, one of the many important points you make in your article – and that is how belief is a precondition of knowledge, which itself is a precondition of truth, whatever that may be. And that if you take that belief out of the equation, all right, you have serious problems. And I think that’s why I was so intrigued by the sentence, “What is the value of truth that no one believes?” Right. And what we have is that crisis of belief. It is precisely that. I don’t know – when you say that everybody values truth, I’m not certain about that. All right.
Joseph: You’re right to call me on that. And actually, you’ve pointed earlier to the footnote in which I acknowledged that some people are just trolls, nihilists, and have no real belief.
Ron: Well, there’s also the role of technology in perpetuating falsehoods. But what I’m concerned about is that I think – I don’t know – when you say people value truth, that assumes they think about it, all right. I think many folks are more than willing to ignore it, all right. If Donald Trump says it, I believe it. If Hillary Clinton says it, I believe it, all right. And in a sense, the truth is almost an aside, all right. There’s something “legitimating,” if you will – and I have to put legitimating in quotes – and if you will, this is part of the problem of the democratization of knowledge.
This is the problem that goes back to Plato’s writing, to the Republic, and what have you. And that is is that, when the demos – when belief is what legitimates truth, then truth or knowledge is in a precarious position. On the other hand, in order for a society to function, all right, there has to be a certain buy-in, all right. And I think what’s important that we live, not in a democratic government or a pure democracy, but in a republican government. And if you will, the whole idea of republican government was it was premised on a certain expertise, if you will, particularly in the Senate, at least in times passed. Let’s put it that way.
In a sense, legitimation depends on the demos, if you will, buying in. But they can also pollute it. And in fact, one of the things I think – and I recommend this strongly to you, the writings of Simone Weil, W-E-I-L. She talks about what happens to truth when it becomes a collective enterprise, all right, and how words take on empty meanings, all right – or words that have empty meanings take on truth and what have you, and how the idea of collective truth is, in a sense, a perversion. And –
Nico: Well, that Orwell too in Politics and the English Language.
Ron: That also. And it’s also Brave New World, Huxley, when he talks about soma tablets and what have you. And so, one of the things I just so valued about your article is it says stop focusing on the truth. Because what’s happened is – and you point this out in the 2018 Supreme Court opinion you mentioned – is that it’s become, if you will, a trump card, all right. And nobody really – they just play it, right, but without thinking about really what – and I think the idea to step back and say, as policymakers, as lawmakers, as judges, as a culture, what do we need to get back to some fundamental agreement about knowledge?
And I think one of the things I would recommend you think about as you go back – develop these ideas, Joseph, is the role of what David and I call the harm principle, all right. Ultimately, what everybody agrees on, all right, is if this algorithm causes me to get in a car crash, I’m not gonna – I don’t care who it is. But if Trump or Clinton said, “Jump off the bridge. It’s good for you,” nobody’s gonna do it, all right. So, there’s something about, if you will –
Nico: Not unless they’re a cult leader.
Ron: Right. Again, yeah. But there’s something about the harm principle that has to be brought into the equation here. In fact, that’s why we rely on doctors, right, because we value what they say in terms of protecting our health more than what Joe Blow says in a comment on the internet.
Joseph: You have thoroughly convinced me of many things, Ron. One of which is I have to think and try to write more on this because a lot of these are questions I haven’t even touched.
Ron: The audience, the book is coming. I see it.
Joseph: Ron, I think has already written it for me. I need to transcribe this.
Ron: Nico, you can say that it originated here.
Joseph: One of the questions that you just raised though, Ron, which I don’t address in the paper, and I hadn’t actually thought through until now – and maybe I should say this, too, because I’m not sure I’ve clearly even stated during this discussion what the difference is between knowledge as I’m using it and truth as it’s traditionally described. I think usually when people talk about truth, they mean essentially propositions that are either false or not. When you say Walter Cronkite is dead, not just as a metaphorical figure, but as a person in the world, right, you can imagine the truth value of that statement.
The definition of knowledge that I’m just as – and I’m borrowing here entirely from basic epistemology, and there’s all there’s all kinds of disagreements among epistemologists as well – is the sort of traditional tripartite definition of knowledge as justified true belief, that in order to be knowledge something has to be all of those things. You can’t have a belief – you can’t have knowledge if it’s not true. So, you can’t have knowledge about a thing that is false. You can’t have knowledge that you don’t believe. And you can’t have knowledge that is not justified. I’ve been focused on the justifications, how we come to support the beliefs that we have that happen to be true.
But actually, Ron, I think what you’re doing is pointing out that actually there’s a challenge too with belief, that for many people actually there may be a sort of checking out going on. The world is too noisy. The world is too confusing. It’s actually costly to believe in ways that it might not have been before. And that overflow of information from the internet, and conflicting signals, he said he said, she said she said about things that seem to be factual may cause some people to just stop and just check out. And that’s a totally different challenge than the one I’m trying to address here. But I think it’s attached.
Nico: Well, I wanna lob some grenades in here.
Joseph: Oh, great.
Nico: Is this concern about a post-truth era – is it anything new? I lived in Manhattan. And there was a time when they literally got hundreds if not thousands of Manhattanites to come out to – I forget what avenue or what street – and try and saw off the bottom half of the island because they thought it weighed too much. It was gonna take the whole island into the sea.
Joseph: I did not see that one.
Nico: So, you talk about one deranged gunman coming into a pizza parlor here in DC. Got lots of people in Manhattan coming with saws trying to saw off the island because one person convinced them that was true. And my other point is – and you touch on this in your article – isn’t truth a long game? Truth will lose out often in the interim, but in the long run of things, it has a long arc. And the truth tends to find its footing at some point. So, I wanted to get your perspective on those two things. Is this really a crisis that needs to be addressed? And how new is it?
Joseph: These are both great. I’ll take those in reverse order. On the first, I don’t think there’s anything novel about people broadly believing falsehoods or having sort of doubts about what the truth actually is. One hundred percent true that this is not, in that sense, a novel time in which we’re living. And this goes back a little bit to what Ron and I were talking about. What strikes me – and my timeline on this is not as long as it might be – is that what’s new now – or not new – what is more pronounced now than it was even a few decades ago is disagreement about that basis for truth, where truth can be found.
The declining faith in institutions, the declining faith in, for example, the traditional news media might or might not be good things. But those strike me as actually things that have changed. Universities, the press, people, places one might have looked before to resolve a disagreement or a misunderstanding, I think they’re just traditionally – I think people are being pulled apart more on that scale, on that side of things, which is again something that sort of motivates the article.
I think it’s also right to say that over time the truth generally, in many cases, will out. I’m not somebody who thinks that the marketplace traditionally conceived is necessarily indefensible. In fact, that’s one reason I find myself continually drawn to defending the Abrams opinion, even thought I think it’s largely going out of fashion.
One example that I’ve used recently – I don’t think it’s in the article – is it’s one thing to point out that there are anti-vaxxers who disagree and discount the sort medical consensus about the safety of vaccine. That may be taken as evidence that the truth doesn’t out. On the other hand, we have vaccines. We have vaccines because over time scholars and other working hard were able to figure out how these things work. Of course there’s steps forward and steps back, but over the time – over time, I think the arc generally bends towards truth and justified true belief.
Ron: One of the reasons it does is because people die.
Joseph: I was just gonna say – literally the next words from my mouth. The problem is that that arc can take a long time to bend. And in the mean time – going back to Ron’s earlier point about the harm principle – a lot of people can be hurt. And misinformation can contribute to that. The question is, are the cures worse than the disease? And that’s where the First Amendment comes in.
Ron: Joseph, it seems that right now, today, in a very significant way – and this is obviously not the first time this has happened – but science itself is under blatant attack. Just think about what’s happening with climate change, all right, across the world. We have Antarctica melting at an unbelievable pace, faster than ever before, something that’s documented. We have fires in Australia – all these things that are going on, and yet they are being denied, not only in this country, but in other countries. We have the knowledge there, all right.
Use that example and tell me how your theory of free speech plays into that example. How can it correct the problem of that example, of climate change denials?
Joseph: Boy, if I could do that, then I really would have a book. I’m not sure I can totally solve that problem, but I think I can tee it up better than the traditional theory, which is that denying science is again, to Nico’s last point, nothing new. You and David have an article, if I’m not mistaken, that literally has the, “And yet it moves,” Galileo line, right. That’s nothing – centuries of experience denying scientific progress. And yet, over time, science has generally progressed.
So, to Nico’s last point, I don’t think this is necessarily a unique crisis. But the stakes are quite high with climate change and other issues. I don’t think I can, with this article or any other, convince people of – who don’t believe about the validity of climate science. On the other hand, hopefully what the piece can do is say you’re not gonna get there by just beating people over the head with the importance of truth. What you have to do is convince people of the practices we can rely on to produce it, and that’s a harder maybe but different discussion.
Nico: But science did kind of do that with the scientific method, with liberal science.
Joseph: Oh, absolutely.
Nico: They came up with these – at one point, it was a justified true belief on behalf of healers that you bleed people more when they’re sick, and that’s somehow gonna make them healthier. And as – what was it – in Abrams time is upset many fighting faiths.
Joseph: Fighting faiths, absolutely.
Nico: And so, I worry about relying too hard on this justification method and then foreclosing the challenges of our current truths.
Joseph: I think justifications can and should be subject to challenge just like truths should be. I think what counts as a justification could’ve been because the Bible tells me so, and we don’t necessarily accept that one anymore –
Joseph: – as a basis for justification, and scientific belief, or anything else. Absolutely those can and should evolve. This is the real lesson of, “And yet it moves,” as Galileo describing his view of the universe. But also, the First Amendment – and yet it moves – these things continue.
Ron: Something that you just said strikes me as very important. And that is, what is the First Amendment. I think the implicit in what you’re writing is that the First Amendment cannot be confined to courtrooms, to lawyers’ work, to the legal academy. It is part of the culture, all right. That in order to operate, all right, it needs more than simply legal mechanisms, all right. It needs buy-in, if you will, at some point from the culture. And at another point, it also needs to kinds of, if you will, govern that culture, all right. You could have all of the best of theories, all right. But if the culture causes them to dysfunction, all right, or malfunction, all right, then they’re of no moment.
And so, it seems to me that when we talk about the First Amendment we can’t limit ourselves to what judges, and lawyers, and legal academics say, all right. We also have to look at what sociologists say, what economists say, right, because that, if you will – those are part of the preconditions, all right. You’ve mentioned some of them, all right. If we are indeed facing a crisis in truth related to science, in particularly let’s say climate change, all right, what’s producing that is something in the culture. And until that something in the culture is remedied, there’s not gonna be any buy-in, all right. People will just continue to deny it until they die.
Nico: Well, Ron –
Ron: And then, truth wins out because – only because it’s killed everybody.
Nico: Well, let me disagree with you here slightly. I think there’s always gonna people that discount things that are widely accepted truths. I don’t think you’re gonna ever get 100% consensus on climate change. The challenge there I think is different in so far as how do you get the political will on behalf of the world in order to do something that’s very expensive. And that doesn’t seem, to me, fundamentally a free speech or First Amendment question because I think the consensus is there on behalf a lot of the people who do things.
And governments change, so not every government is gonna be on board. But I feel like there’s a pretty good scientific consensus on that. I’m struggling to see where the free speech implication is.
Ron: Well, see, I don’t see the First Amendment as limited to law, all right. I do not. Machiavelli said, “Others will tell you what the world should be, but I will tell you what the world is.” There is the world of the First Amendment as in law.
So, for example, last I checked, obscenity is still illegal, right, Miller v. California. It’s still illegal. But in the culture, all right, ever since the advent of the internet, it’s become legitimized. The culture of free speech has legitimized obscenity – footnote, except kiddie porn, all right. So, it seems to be that when you talk about the First Amendment, you can’t limit it. Particularly if you’re using terms like “belief,” you can’t limit it to law. And I think that’s an important argument.
Nico: No, and I agree with you, but I think the values baked into free expression, the dialogue that happens as a result of this expression can only take you so far. Action is a whole nother thing. Whether you have the political will, the financial will, or whatever to actually do something about the knowledge that you’ve accepted is, I think, another question.
Joseph: One thing I would just add to what you’re both saying is that I 100% emphatically agree with Ron. And I think that – probably, Nico, you agree with this too – that a system of free speech is more than just court holding or doctrine. And certainly this article is meant to be in that vein.
And, Ron, what you’re describing there as sort of obscenity as a matter of constitutional protection and obscenity as sort of a mater of cultural reality is one of those interesting examples where sort culture allows more than the Constitution protects, which of course happens in lots of other areas as well. And the disagreement can go in the other way too, of course, where people have an instinct to censor more than the Constitution would particularly allow. And that’s where I think the lesson of learn at hand to pick many others, right. You shouldn’t put your faith too much in paper documents, constitutions – believe me, these are false hopes I think is absolutely right.
If you don’t have a culture which values freedom of speech, or, for that matter, truth, or knowledge as I’ve defined it, then whatever doctrinal machinery you put in place is only maybe necessary but not sufficient, maybe not even important though. There’s much, much more important broader cultural discussions which someone like me writing in the Harvard Law Review has absolutely no connection to whatsoever. That’s not at all the goal or the hope of this kind of article. That requires people at a much different pay grade than mine.
Ron: Well, I don’t know about that. Can you say a few words because I think it’s a good point of discussion about The Road to Larissa?
Joseph: The Road to Larrisa is fantastic. It actually works nicely since we’re already talking about Holmes, “On the road I can’t help traveling,” being his definition of truth. So, the Road to Larrisa is –
Nico: It’s like an album.
Joseph: I can actually –
Nico: His first rock album.
Joseph: I can see the cover now actually. That would be kind of a cool looking album. And he would look cool on an album cover.
So, The Road to Larrisa is something I use as sort of an animating story, explanation, definition, in the article for just why it is that knowledge is different from and perhaps more valuable than true belief. And it’s a story that’s taken from the Socratic dialogues where Socrates is discussing with Meno the nature of virtue, its relationship to knowledge. And he gets him to agree that two people, if they could give you directions to Larrisa or, as he uses the phrase, anywhere else you like – I just had to look this up; I thought that was just kind of cute – could be similarly accurate, and yet that one of them had the right opinion about that of which the other has knowledge, right.
That in other words, one person sort of happened to be right about the right way to get to Larrisa, just happens to be a town, or – and the other one happened to have something more about it. That is, that is true knowledge. And had asked, “Well, what’s the difference between those, and why would one matter than the other – matter more than the other?” Why would we prize knowledge more than just right opinion?
And Socrates’ answer contains a lot, of course. But part of it is that to have knowledge of something is to have it tied down, in a way. And he here invokes the sculptures of Daedalus, which would walk away if not tied down. He’s like, “Means nothing to have a sculpture made by Daedalus if it’s just gonna walk away from you.” It needs to be sort of tied down in a way that will stay. Knowledge, he suggests is similar. You have reasons for your belief. You hold them in a way that just having right thought flip through your head won’t.
And that sort of set the stage for something which Plato later comes and elaborates in other writings about the difference between just truth – that is right opinion – and justified true belief. So, it’s kind of the beginning or at least a beginning of this long epistemological discussion to which I make reference throughout the paper. And I should just quickly disclaim any effort to advance epistemology. I’m not a trained philosopher. I think it’s important to borrow from other disciplines where we can.
Nico: Is what you’re saying you don’t – you’ve justified not –
Joseph: I think I’m justified, but not justified if I was speaking in front of a group of philosophers.
Ron: So, if we wanna get to Larrisa, we can either rely on somebody who has knowledge, who’s traveled the road and has very fixed knowledge. Or we could also get there by relying on somebody that has true belief, right. But the true belief, what makes it valuable is that at some point – let’s say that the guy that has true belief it’s based on a map, right. But the map has to be based on somebody that has knowledge, right. So, it always comes back to knowledge, right. And so, if you just kind of move that forward into modernity, think about Waze, right. We were talking about this earlier.
Joseph: Waze the app that is.
Ron: Waze the app, yeah.
Ron: Thank you. Thank you for that.
Joseph: Little plug for Waze. I don’t know if your sponsors –
Nico: I’ll put it on the show notes.
Nico: Fingers crossed they come in.
Ron: So, the best way may be the quickest way. The best way may be the way that has the fewest speed cameras. The best way may be the way that takes you the safest route all right. But if you just think about that, now the road to Larrisa is best – what does technology do to that true belief, knowledge dichotomy? `
Joseph: That’s a really interesting question and a hard one. I’ve been trying to remember the phrase that you and David use beautifully in your 1990 article. I think it’s Texas Law Review. It’s something like sort of intellectual entertainment or something like that sort of – what you were referring earlier, that probably 30 years now down the road you would double down on even more as describing the way free speech culture sometimes works.
So, additional information through apps, online, technology, etc. can degrade. It can also inform. Waze, I don’t use the app, but I hear good things. To the degree that –
Ron: Good luck getting to Larrisa.
Joseph: Yeah. I’ve never gotten lost going to Larrisa; although, I’ve never tried. To the degree that it’s based on sort of a justification that one would value, that is other people’s experiences and underlying map, then what it does, I think, is provide – and this is going back to Nico’s earlier point about the intersection between the different First Amendment values – it provides knowledge, reliable, justified true beliefs to people who then get to make choice, autonomous choices about what to do with their own locomotion, their own travel. And that strikes me as a good thing.
I don’t know enough about the app and what else it’s used for. But in general, the strikes me as overall positive development of sort of – and information being used pretty well.
Nico: I know we’ll have some listeners here who will just say, “Oh, these are a bunch of people in DC telling us the right things to believe because they think they know the right way.” This is just Plato and his philosopher king’s argument. But we live in a free society, and we can believe what we wanna believe for whatever reasons we decide. So, how would we respond to those sorts of people because I think it is a legitimate argument?
Joseph: Oh, I totally understand where the concern would come from. I may have overemphasized this, but let me do it again. There’s nothing in the article that’s trying to say these are the justifications that are right. I don’t try to say and I don’t believe that, because a person has a degree in a particular area their speech is worth more or counts more. That’s not the argument. The argument is – I think it’s intuitive to most people – that while you believe what you believe matters. And I think that that’s something certainly that any lawyers listening I think will share and understand.
We understand it’s part of our practice, that it matters how you get there and not whether you get to the right result. I think that most people believe that, too. People differ deeply on what justifications they count on most, whether they look to universities, or to churches, or social institutions, or whatever else. And what I’m trying to do is just tee up that discussion. And certainly not to say here’s what matters the most. I think that, if anything, it’s more democratizing, I think, than the traditional truth-based approach, which essentially says – puts truth at the middle by itself. And that’s essentially, I think, even more like we know what’s right and what’s wrong. And what I’m saying is it matters how you get there.
Nico: Yeah. Can it be simpler than – yeah, you posited churches, universities, say government in some sense. Could it even be simpler just saying it matters that you ask why?
Joseph: Absolutely. I refer to this in – I have a whole section of it in the paper.
Nico: So, it doesn’t even need to be an argument to an authority or an institution.
Joseph: Absolutely. Absolutely. In fact, I think that before I talk about these institutions, which I call external justifications, I have a section in the article on what I call internal justifications, which is – it is a totally defensible view of epistemology that a view is justified if you’ve thought hard about it, if you really do believe it. You’re not just irresponsibly throwing out some proto-belief that haven’t actually interrogated.
If you’ve interrogated and you’ve thought hard about something, that’s good enough for that theory of justification. That counts as knowledge on many accounts. So, absolutely. I think that could be plenty. Is times gonna carve some things out? Sure. I think that’s true, too.
Nico: Well, and that’s kinda of the last question I’ll put here, and then I’ll give Ron the closing the questions here. My boss’s argument is that he’s always talked with me – it’s important to know the world as it is. So, he’s never really relied on the marketplace of ideas. It’s important to know what people actually think, not just when you think they’re right, but – or not just when you think they’re wrong, but especially when you think they’re wrong. It’s important to know wrong thinking.
So, how would your justified true belief account for that value if you even think it’s a value, knowing the world as it is, even if it means knowing that there are people out there who believe that there’s a sex ring at Comet Pizza?
Joseph: Yeah, it’s interesting. I think I like the idea that – all else equal, of course I prefer to see the world as it is than as it’s not. That strikes me as not inconsistent, I don’t think. But maybe I should listen to the show where you talked to your boss, so I get more view of this.
Nico: Yeah. He’s a more articulate spokesperson for this –
Joseph: No, no, no. I just meant so that I can hear more about it.
Joseph: Because as you say it, it sounds exactly right to me. But it sounds to me sort of similar to, “See the world as it is,” which sounds like truth.
Nico: To contextualize, we often use it in the discussion of hate speech.
Joseph: Yeah. Yeah, yeah.
Nico: Our cofounder, Harvey Silverglate, when to give a speech –
Nico: – opposing a hate speech code at some university or another. And a student, gay student, in the audience said, “No, I wanna know who the homophobe in the room is so I know not to turn my back to them.” So, in that sense, there’s knowledge – there’s important –
Joseph: Understood. That makes a lot of sense. So, with regard to things like hate speech or things like that, I think that honestly my framework, just like the marketplace of ideas framework, is not particularly well suited because, often what’s being stated, doesn’t have any truth value at all, right. To express a hateful view about somebody else just because of the color of their skin, or their sexual identity, or whatever else is not really the kind of thing for which the cognitive values of the First Amendment are really suited, which goes back to our earlier discussion about how it can’t just be that there’s one First Amendment value –
Nico: Value, yeah.
Joseph: – to rule them all. On the other hand, I also wanna know, if I’m that person, where did that person get the belief from? What are they reading? What are they referring to? Who’s influencing them to kinda come around to that view? That, to me, is part of knowing the world as it is. It’s like, where do these vitriolic, or nasty, or awful, or, to me, objectionable viewpoints come from?
Nico: But that also plays –
Joseph: That’s a story about justifications, to me.
Nico: Yeah. And it also plays into the democratic value too because, in a democracy, you need to bring people along to your side. In order to bring them along to their side –
Joseph: Gotta know where they’re coming from. Absolutely.
Nico: – you need to know the why.
Joseph: So, that’s exactly it. Another name for the article could’ve been “The Need to Know the Why.”
Joseph: If I write the follow-up piece as a Ron has suggested, that kind of goes to it. It’s the knowing the why. Why do we value particular truth? Why does something particularly count as truth? Why do we believe the things we believe? Those are questions, as I frame them, about justification. And that’s to say they’re important and not to say I have a particular, single answer to which justifications count.
Ron: So, talk to me or talk to us about your knowledge base, and true belief theory, and how it would apply in the context of commercial speech. Would the doctrine be the same as it is? Would it be different?
Joseph: That’s a tricky and interesting question, and I’m not sure I can answer it on the spot. I have to think it through more. It’s easier for me to see how there’s implications here for professional speech straight up, to the degree that that’s sort of not even a fully recognized doctrine but kind of a sort of arm of doctrine. I’m not sure I could say anything smart or interesting about how it would apply to commercial speech.
Ron: Well –
Joseph: The fact that you asked suggests that you have some idea here, Ron, so I’m gonna write it down.
Ron: No. Well, no, no, no. By the way, a lot of times I ask questions, I can’t answer precisely because –
Joseph: Oh, good. And then, I fail to answer them. What a nice routine.
Ron: But then let’s just take a spin off of that. Will you just say a few words about your discussion of National Institute of Family and Life Advocates v. Becerra?
Joseph: Yeah. So, this is an interesting case. It’s actually hard for me to do this one sort of on the spot too because I think it’s a complicated case with a lot happening in it. It’s kind of hard to unpack.
Nico: And we should briefly summarize it.
Joseph: Yeah. So, I’ll call it NIFLA for short. This was a 2018 case, which Ron referenced earlier. It involved a California law called the FACT Act, F-A-C-T, which imposed certain disclosure requirements on what are sometimes called crisis pregnancy centers, which might appear from the outside to be standard healthcare providers, but which in fact are designed to provide anti-abortion counseling.
And what the California law would’ve required is that they notify women that California provides free or low-cost services, including abortions, and that unlicensed clinics must notify women that California has not licensed the clinics to provide medical services, right. So, this is challenged on free speech among other grounds. The Ninth Circuit upheld the restrictions. And then, in a 5-4 decision with Justice Thomas reading, the Supreme Court struck them down. There’s a lot to say about that the opinion and to unpack it.
Ron: And he quotes Holmes.
Joseph: He does.
Ron: He relies on the marketplace of ideas.
Joseph: And actually, in kind of an interesting way. I happen to have here in front of me. He actually quotes Holmes almost more confidently than Holmes himself.
So, what Abrams says in 1919 is that the marketplace of – not the – so if it is the marketplace, that is, it’s the best test of truth. What Justice Thomas says in NIFLA actually is even stronger than that, is that the truth will ultimately prevail. That’s even more confident than Holmes. Holmes argument can be read as comparative. This is better than government intervention. Thomas seems to be taking the even stronger position that truth will eventually out. I have a lot of problems with NIFLA, as I say. It’s a little hard for me to kind of unpack them all at once.
Nico: Yeah, we could do a whole podcast.
Joseph: You should. In fact, have you done one?
Nico: No, not on NIFLA.
Joseph: I didn’t know if that was an inside –
Nico: We’re two years out almost at this point.
Joseph: Yeah. I guess that’s true, but still hot and still interesting.
Nico: But the questions are still relevant.
Joseph: They really are and actually think legitimate – I think legitimately hard. I guess the thing that I’d say about NIFLA that I find tricky is the information that California wanted to require these centers to produce was I think by any definition sort of factual, truthful. That is, just that California provides low-cost medical service, including abortions. This center’s not been licensed to provide healthcare services – no debate about whether that’s true or false speech. This isn’t like an Alvarez kind of a situation.
But one of the reasons why Justice Thomas says that’s impermissible is because it involves abortion, which is a controversial area, and that the state can’t require this kind of speech in a controversial area. And I just think that’s too quick. I think that’s too easy, that to dismiss the sort of factual predicates of a normative debate as themselves being controversial is a little bit too broad of a swing, and that we might actually learn something – the reason I talk about NIFLA a bit is because he talks a fair bit about the professions and how’s there’s professional disagreements.
And I’m quoting here from the opinion. “Professionals might have a host of good faith disagreements, both with each other and with the government on many topics in their respective fields. Doctors and nurses might disagree about the ethics of assisted suicide. Lawyers and marriage counselors might disagree about the prudence of prenuptial agreements or the wisdom of divorce.”
I think that’s blurring together a lot of things which are normative disagreements and professional disagreements. There is no, as I see it, truth of the matter about the wisdom of divorce. That’s not a place where the marketplace of ideas is particularly useful. There’s not truth to the matter. The ethics of assisted suicide is not a truth proposition to begin with. But there are other areas in which absolutely we defer to the medical profession or the lawyers with regard to providing legal advice, for example. Which if you do without law license, you’re violating the law. Those, to me, are different kinds of debates. And the conflating of them in NIFLA, I think, is at least potentially problematic.
Ron: One of the things that NIFLA does, ironically, is it cuts off information in the name of the marketplace of ideas.
Joseph: Literally truthful information. And there’s still arguments to be made that compelled speech, even if truthful, distorts the market. And I think that would’ve been a better place to understand harm here.
Nico: Yeah. I don’t know where the limiting principle is there because then you could make the argument that certain universities are compelled to provide certain information alongside speakers, for example. So, I just worry if you open the door to –
Ron: Well, would malpractice laws apply to a doctor who’s a Christian scientist, and has certain normative, religious beliefs about medicine, and that doctor declined to inform you about certain things because he or she didn’t believe in medical treatments? Could you bring a malpractice action against him? If you did, could they raise a NIFLA defense?
Nico: But it’s not illegal to advocate against abortion, which is – I mean, I don’t have all the facts of the case in front of me, but that seems to be what these centers are for.
Ron: I think –
Nico: They exist precisely because you can get an abortion in California, right.
Joseph: The challenge I think is this. And this’ll be for your next podcast because I certainly can’t answer it. Is –
Nico: Yeah, we can keep going. I realize we’re over –
Joseph: That’s fine. I’m enjoying it.
Nico: – as often when I’m talking with Ron.
Joseph: I’m enjoying it.
Ron: I’m in trouble.
Nico: No, you’re not in trouble. They’re just fun. So…
Joseph: The challenge I think is exactly figuring out the context in which if we’re gonna recognize some kind of doctrine or professional speech that professional speech actually attaches it. Certainly can’t be the case that professionals at all times are engaging in professional speech. And this goes a little bit to your point.
It’s not at all to advocate for or against divorce, or for or against flat Earth, or for or against vaccines in public discourse. Even if you’re a medical professional advocating against vaccines in public discourse, that doesn’t at all mean you’re necessarily gonna subject to a malpractice action. You’re just talking in the public forum. If, however, you give – and, again, the standards are high. But if you give such bad medical advice to somebody that they are hurt as a result, you might be subject to a malpractice suit in the context of a professional relationship.
Now, the boundaries of that are hard to define. Claudia Haupt, who’s an interesting young scholar, has been writing on this recently. I recommend her work to everyone. It’s not something I resolve here, but I’m comfortable with a world in which there are contexts in which professionals are held to a different standard and may be subject to malpractice, for example. But it can’t be the thing that – the exception that swallows the public discourse ruling.
Ron: Just one closing comment, and I’ll be brief.
Nico: Yeah, of course.
Ron: I think when one thinks about professional speech, Joseph, it’s far broader than maybe suggested in your article. For example, is there professional speech in the political context? Well, a lot of people say absolutely no. That’s a different matter. Really? Well, what about questions about foreign policy, all right. Isn’t part of the criticism at least of the current administration from certain corners – isn’t a part of the criticism is that the reliance on experts when it has to do with foreign policy, when it has to do with climate change, when it has to do with criminal justice has been abandoned, all right.
And it seems to me that – and certainly the dialogue with Meno really – the reason Socrates is concerned about Meno is because Meno has tyrannical propensities, all right, as a ruler. And he’s trying to show that there’s some relationship between knowledge, if you will, and how a polis is ruled. And so, for us, does this say to cabin professional speech to what doctors do and what others and say, “Well, all the rest is just political. We’ll leave that alone”? Really kind of undermines, if you will, the value of expertise knowledge precisely where sometimes it’s most important. And that’s in the political realm.
Joseph: I wanna end on a cliffhanger here so that we can continue this conversation because it’s a great question, Ron, and I wanna look forward to the rest of the conversation in the future.
Nico: Yeah. Well, I wanted to add, sometimes, people talk about this in the context of the press clause, right, with licensing journalists as well. What justifies a journalist in doing journalism? Or what even is journalism? I was on a panel recently at a high school with a former journalist, now lawyer, who kind of advocates for defining what the press is. And then, the logical question is, how do you do that? And, well, does it require licensure? I mean, is it a sort of profession in that traditional sense? Anyway, we could go down the rabbit hole on that one. But I wanna thank you both for coming. Ron, thank you as all always for joining us.
Ron: Thank you.
Nico: Professor Blocher, thanks for being in DC and making this work.
Joseph: Thank you so much for having me. That was really fun.
Nico: Yeah, the article we discussed is “Free Speech and Justified True Belief.” It was in the Harvard Law Review, correct? Yes. And the other one we didn’t get to is “Bans,” which was in the Yale Law Review. And of course, Ron Collins edits our FirstAmendment.news at the Foundation for Individual Rights and Education. Although editorially independent, he’s the author of many books and has taught law for many, many years, including to many of you here on this podcast.
This podcast is hosted, produced, and recorded by me, Nico Perrino and edited by Aaron Reese. To learn more about So To Speak you can follow us on Twitter at twitter.com/freespeechtalk or like us on Facebook at facebook.com/sotospeakpodcast. We also take email feedback at firstname.lastname@example.org. Or call in a question for a future show. You can do that at 215-315-0100. We love reviews on Apple Podcast or Google Play. They help us attract new listeners to the show. And until next time, thank you again for listening.