Today’s political and cultural debates reflect a lack of consensus not just on policy but on the facts themselves—and on who is qualified to judge the truth. Robert C. Post, the dean of Yale Law School, argues for an approach to free speech that preserves the role of expertise.
On September 27, the United Nation’s Intergovernmental Panel on Climate Change released a report, its fifth since 1990, summing up the current state of climate science for policymakers. “It is extremely likely that human influence has been the dominant cause of the observed warming since the mid-20th century,” the report read. The reaction was split along partisan lines, with conservative commentators insisting, contrary to scientific consensus, that the rise in temperature has stopped and the link to human activity is unproven.
Climate change is the most prominent of many areas in which political opponents disagree, not just on policy, but on the underlying facts—and on the reliability of scientific expertise in determining those facts.
“There are political groups in the United States that are anti-expertise,” says Robert C. Post, the dean of Yale Law School. “They believe they know what is necessary without reference to experts.” This “dilution of epistemological authority,” Post says, is dangerous in a democracy, in which citizens require reliable information to make decisions about how to govern themselves.
Post’s latest book is Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State. In the book, he argues against the prevailing “marketplace of ideas” theory of free speech, which holds that in a competition among viewpoints with equal footing, the truth will prevail. In the political realm, all viewpoints are indeed equal, he says. But in the academic world—and in related fields like science, medicine, and architecture—society needs systems for identifying and distributing expert knowledge, and that means having the ability to judge some viewpoints as true and others as not.
“Every person is entitled to their own opinion,” Post says, quoting Senator Daniel Patrick Moynihan. “But they're not entitled to their own facts.”
Q: Why is expert knowledge necessary in a democracy?
Robert C. Post: Well, I think the best way to answer that question is first to ask, “Why is expert knowledge necessary?” And second, “Why is it necessary in a democracy?” So, with regard to the first question—“Why is expert knowledge necessary?”—we live in a knowledge economy. We live in an economy which is powered by innovation, by technology—all of which is funded by expert knowledge. If you don’t know the nature of the world, you can’t innovate. You can’t market. You can’t control natural forces or social forces. You can’t have scientific development. You can’t have innovation. You can’t have any of the things you need to power a modern world. A modern administrative state needs knowledge in order to function.
What about democracy? Well, a democracy is different than other forms of states because, in a democracy, the people govern themselves. The people can’t govern themselves unless they know the options. The people can’t govern themselves unless they understand the choices being put to them and the alternatives being presented to them. And the only way they can evaluate those choices, or those alternatives, is to have the knowledge to see which choice leads to which consequences. So, a people governing themselves without knowledge is blind.
There are political groups in the United States that are anti-expertise. They believe that they know what is necessary without reference to experts. They denigrate expertise. And so, every person has their opinion. This dilution of epistemological authority is reinforced by many factors in our society. One is the internet. In the internet, everyone gets to say their piece. But as Senator Moynihan used to say, “Every person is entitled to their own opinion, but they’re not entitled to their own facts.” It makes a difference whether carbon emissions really do cause climate change. It makes a difference whether nicotine really does cause cancer. And that’s not just a matter of opinion. And yet, given many political forces in this country, which want to eliminate epistemological authority on which expertise is grounded, it doesn’t matter what the facts are because they have their opinion. And so, that makes the protection of knowledge and expert opinion of very great importance in the United States.
Q: You are critical of the marketplace of ideas theory. What is this idea, and what is troubling to you about it?
Post: Well, the marketplace of ideas is a theory of why we protect speech. It’s a constitutional theory of freedom of speech. This account of freedom of speech holds that we live in a marketplace of ideas, and the best power—the best evidence of truth—is the power of an idea to get itself accepted in the marketplace of ideas. So there are no external criteria of truth. There is merely what people happen to believe. And everyone is entitled to their opinion and to participate in the marketplace equally with everyone else. So, the marketplace of ideas theory is actually a theory that is at odds—deeply at odds—with the epistemological authority that makes for expert opinion. So, if one wants to know the half-life of plutonium, one doesn’t take a poll.
No university, which is designed to produce knowledge, functions according to the marketplace of ideas. We make judgments. We give tenure to the person with good ideas, and we don’t give tenure to the person with bad ideas. The marketplace of ideas theory within the First Amendment holds that there is no such thing as a false idea. And that’s it. That’s meant to imply that every person is entitled to their own view, which is true for certain aspects of the First Amendment and freedom of speech. But in my view, that is explained by political equality, not by epistemological equality. Because if there’s no such thing as a false idea, there’s no such thing as a true idea; and if there’s no such thing as a true idea, you can’t have knowledge. You can’t have expert knowledge, which rests on disciplinary hierarchy. So this aspect—this way of understanding the First Amendment—is actually deeply at odds with the protection and respect for disciplinary knowledge that any society needs to succeed.
Q: What are the implications for freedom of speech in different arenas?
Post: Well, the implications are you have to understand why we protect freedom of speech. You have to have a very clear idea of why we protect freedom of speech, and then you begin to apply a clear theory to the different domains of speech. Some domains require political equality. If I’m talking about affecting public opinion in public opinion, then I want to be treated equally. They shouldn’t be able to exclude me because of my opinion, and I’m entitled to my opinion. And I might even be entitled to my own facts—if I’m talking in public spaces. We don’t want the government to be able to prosecute the New York Times because they get the facts of their reporting wrong. That’s not typically what we do. But there are other domains of speech—like universities, like advertisements for commercial products, like doctors and lawyers and architects—in which we may not want to apply the marketplace of ideas theory. You have to be very clear which theories apply in which context and why that’s true.
Q: How do you think about freedom of speech within an organization versus the larger society?
Post: So, one way to understand freedom of speech is that it protects the capacity of a citizenry to govern themselves. So, how does a citizenry govern themselves? They don’t agree with what the government does. How am I governing myself if I vote with the minority all the time? The answer is—the rough answer is—in a democracy, we make the government responsive to public opinion, and we give people freedom to participate in the formation of public opinion. So, the First Amendment restrictions on government regulation of participation in public opinion formation are very strict. And that’s because we should always be able to say what we think in that area. Let’s call that public discourse. And we should always be thinking about what our ends are. What do we want to do? And public discourse is a site in which we debate what we want to do.
So, suppose we get together and we debate, and we say, actually, we want a public health care system. Let’s say we decide that through Congress, being responsive to public opinion. How do we make a public health care system? How do we do anything in the modern state? The modern state accomplishes something by creating an organization to do it. What is an organization? An organization is an arrangement of resources that is instrumentally dedicated to a mission. Let’s say we create the public health agency, which is dedicated to the mission of providing a health care system—a public health care system. So, everything within that organization is dedicated to the accomplishment of the end that we have taken together—decided together to accomplish within public discourse. So, when you’re in an organization, you’re in a space—a social space—which is instrumentally organized toward the accomplishment of an end, maximization of profit; if you’re in a court system, the extension of justice; if you’re in the military system, the public defense. And so on.
So, what does it mean to arrange resources to accomplish an end? It means I assemble paper, and I assemble people, and I assemble cars—all in ways that are dedicated to doing what the mission of the organization is. That means I have to manage the people in the organization to accomplish that end. And that means, also, that I have to manage their speech. So, if I have a bureaucracy—a social security bureaucracy that’s dedicated to providing social security benefits—if my employee doesn’t do what she’s supposed to do to hand out employee benefits and to determine whether someone is eligible for social security benefits and, instead, stands on her desk and sings all day, I get to fire that person. They don’t get to speak freely. Their speech is organized by the instrumental goals of the organization and can be managed to attain the instrumental goals of the organization, or the organization couldn’t function. Right? So notice, if I’m speaking in an organizational space, my speech can be regulated so as to attain the organizational goals of that space. If I’m speaking in public discourse, my speech must be free to determine what my goals are. So, entirely different constitutional rules apply in an organization and outside of an organization.
Q: How much should a manager regulate speech in the workplace?
Post: The literature that I read—the account of management I find to be most convincing is given by someone like a sociologist like Philip Selznick, for example, who says, “Management within an organization should be analogized to leadership.” A good manager leads the people who are working for him. He doesn’t manage them so much as leads them, which means encourages them to internalize and take on the projects and the values he views as appropriate for the organization. Now, what does it mean to lead? It means that you have to allow people to buy in to your project. Now, people don’t buy in unless they’re given the freedom to consider, and to speak about, to puzzle over, to adopt it in their own way. If you manage, and you say you can only say this, and not this, then you create a set of employees who are sullen, who are resentful, who do what they’re told, but only what they’re told—and that’s a very inefficient organization.
I don’t think you can lead someone and inspire them if you don’t permit them to talk and to assimilate your message in their own way. And to reiterate it in their own way. Of course, you have to set limits. They have to be within the bounds, but you want to make that a matter of—as much as possible—the internalization of the message, rather than external censorship and control. The more you resort to external censorship and control, the more you create an adversarial position vis-à-vis your subordinates, and the less you are leading them.