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Washington Law Review

Paul Horwitz

Abstract

In this Article, I treat the recent interest in these epistemological issues as an opportunity to explore an important aspect of Post’s project: the uneasy role of truth within First Amendment doctrine, and the relationship between courts and those institutions that we view generally as epistemically reliable sources of knowledge. My examination suggests that the First Amendment faces what I call an epistemological problem: specifically, the problem of figuring out just how knowledge fits within the First Amendment. The growing attention to the epistemology problem among leading First Amendment scholars is significant enough to warrant examination. Although I offer some views of my own, my approach is primarily descriptive. We must see the epistemological problem clearly before we can do anything about it (if anything can be done, that is). That is the goal of this Article. Part I presents some basic theoretical and doctrinal views concerning free speech and its relation to epistemological questions. I show that current theory and doctrine recognize, but do not resolve, a host of difficult questions about the relationship between truth, falsity, knowledge, and freedom of speech. I offer as an example the recent litigation over the federal Stolen Valor Act, which was heard this Term in the U.S. Supreme Court. Part II analyzes the recent scholarship discussing these epistemological questions. Part III draws on Post’s book and my own forthcoming book on what I call “First Amendment institutions.” I ask whether we can say more about what Post calls “the relationship between the marketplace of ideas and the production of expert knowledge.” In other words, are there ways that First Amendment law could better protect or encourage the production of useful facts? Part IV presents some conclusions about the relationship between knowledge, truth, and the First Amendment. The Conclusion seeks to move the conversation forward by speculating about the reasons for the recent surge in scholarly interest in this question.

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