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Washington Law Review

Joseph Blocher

Abstract

This Essay identifies and elaborates two complications raised by Robert Post’s Democracy, Expertise, and Academic Freedom, and in doing so attempts to show how Post’s theory can account for constitutional protection of the press. The first complication is a potential circularity arising from the relationships between the concepts of democratic legitimation, public discourse, and protected social practices. Democratic legitimation predicates First Amendment coverage on participation in public discourse, whose boundaries are defined as those social practices necessary for the formation of public opinion. But close examination of the relationships between these three concepts raises the question of whether public discourse and social practices can do any analytic work independent of the value of democratic legitimation, or instead are simply labels for speech that furthers it. Consideration of the press helps to illuminate the problem and a potential solution. The second complication is the interface between expert knowledge and public discourse. Post’s theory of democratic competence convincingly explains how such knowledge is created and circulated outside of public discourse. But in order to inform self-governance, expert knowledge must ultimately be disseminated into public discourse. The theory does not yet account for how this happens, nor how such expert knowledge can serve an informative function, given that public discourse transmutes claims of expert knowledge into statements of opinion. Again, the press serves as an illustrative and important example.

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