The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This post will summarize my essay, "The Empirical First Amendment," forthcoming in the Ohio State Law Journal as part of a symposium on "the Expanding First Amendment." The essay argues that the First Amendment's protections are surprisingly shallow when it comes to scientific discovery.
I say "surprisingly" because free speech law aspires to be scientific. The Founders were influenced by the ideas coming out of the scientific revolution. In the modern era, the Supreme Court has consistently placed its bets on the "marketplace of ideas" theory that truth will emerge from competition between factual claims, much like scientific progress itself. Fortunately, the scientific approach to the creation of knowledge is extraordinarily good, at least compared to its alternatives.
As Jonathan Rauch neatly explains, it requires adherence to just two simple rules: First, no claim, no matter how absurd, unconventional, or unpopular, can be removed from consideration. That is, there is no final say, by the government or any other institution, about what is and is not true. I will call this "Claim Liberty" for shorthand. This is the familiar freedom to speak. Second, every person should be able to test the claim for himself to ensure that he gets the same results. That is, nobody should have to rely on the personal authority of the speaker making a claim if they would prefer to verify its accuracy themselves. I refer to this as "Empirical Liberty," but it can also be understood as a freedom to test. Empirical liberty often (though not always) requires people to have the means to collect information, observe evidence, or experience things directly from the world.
First Amendment law gives full and unabashed support to Claim Liberty. Even verifiable lies and hateful claims are protected from official suppression in order to avoid the problems that arise if the state has final authority over what is and is not true. The First Amendment "presupposes that there are no orthodoxies-religious, political, economic, or scientific-which are immune from debate and dispute."
But the First Amendment does not and cannot give that type of support to Empirical Liberty. To see why it does not, consider the claim that the iPhone is water-proof. Nearly every part of an empirical test, from the purchase of the phone, its transport and its submersion into water involves non-communicative conduct that can be regulated on the basis of its non-communicative effects. To see why the First Amendment cannot give full support to Empirical Liberty, one needs only a brief tour through the broad range of descriptive claims that are theoretically testable, but not without severely interfering with the autonomy of others.
Thus, the First Amendment's support for the scientific process of truth-seeking is incomplete. It permits every claim to be submitted to the "marketplace of ideas," (Claim Liberty), allowing a cacophony of proposed hypotheses, many of them wrong, many provably wrong. But First Amendment case law and theory has done much less to give listeners the means to rationally choose between those competing theories.
This is not entirely surprising because Empirical Liberty is a modern fixture in the philosophy of science. During the time of the Founding Fathers, a commitment to Claim Liberty was revolutionary enough by taking control over the claims that can and cannot be put forward out of the hands of religious or government decision-makers. It left the decision about which claim is acceptable, and why, up to the individual listeners.
The scientific community did not fully flesh out and appreciate the importance of empirical methods until the early 20th century, when Karl Popper formalized the requirement that a claim must be testable and falsifiable in order to be valid. This requirement advances human knowledge by assuring all participants that they can see for themselves whether a claim gives an accurate account of the world, and therefore helps kill off the theories that do not match the evidence.
The value of Popper's contribution was also illustrated in real time by Albert Einstein's theory of special relativity. The theory caused an uproar. The scientific community mobilized to publish a collection of essays titled "One Hundred Authors Against Einstein." Though it may be apocryphal, I would like to believe that Einstein really did have a doozy of a retort: "If I were wrong, one would have been enough." If his theory were wrong, any one person could go collect astronomical data that would disprove all or part of the theory.
Popper helped elucidate the importance of Empirical Liberty to scientists, but jurists and free speech theorists have not caught up. Without Empirical Liberty, people do not have the means to gather data and test competing propositions for themselves. A First Amendment that promotes Claim Liberty without protecting Empirical Liberty may not actually facilitate knowledge if the laws leave few opportunities for testing. Instead, it trades one monolithic, governmental or religious authority over claims for millions of individual kings-popes who must resort to unscientific hunches or blind faith in the reports of others since they cannot gather corroborating or disproving evidence about any of the competing claims.
I am not the first to observe that the First Amendment is an imperfect vehicle for generating factual truth, particularly since its design permits false claims to fester. Robert Post, Vincent Blasi and Fred Schauer have made similar critiques. But the scholars who have tackled the epistemic problems in First Amendment theory have advanced corrections that abandon Empirical Liberty (and even Claim Liberty in some contexts) and encourage reliance on experts.
These are serious concessions to the ideal of building a First Amendment in the image of the scientific method. But they are also so practical that they seem to cause no major loss. After all, the best scientists rely on expert opinions in fields outside their own. Even if we had access to very good evidence or had unlimited opportunities to run experiments, no single person could test and verify every plausible claim that interests him or has importance to his life. It will, therefore, always be necessary to rely on other people's expert opinions in order to choose among claims. For the foreseeable future, the law will play some role in that process in some contexts where health or safety are at stake.
However, without sufficient attention on the protection of Empirical Liberties, the legal rules that optimize collective knowledge for the short term, under assumptions of static or slow-moving access to empirical evidence, will not be optimal in the long term. Over time, they may require a person to remain reliant on the purported expertise of others even if there is no impediment to empirical inquiry. If the state directly restricts a person's ability to test and verify competing claims, or if the state indirectly and unnecessarily restricts his ability to do so, then any claim that the law must treat listeners as dependents on (state-selected) experts rings hollow. More importantly, it raises legitimate questions about what value strong Claim Liberty can have if our Empirical Liberty is anemic by design.
Can the First Amendment protect the people's right to test proposed claims for themselves, either through experimentation or through access to relevant information? The courts have not explored the logical implications or necessary limitations of Empirical Liberty. But if we are committed to a scientific approach for First Amendment theory, and I hope we are, then Empirical Liberty must receive more consideration and protection.
A limited interest in Empirical Liberty does not have to threaten the fundamental distinction between speech and conduct that keeps the First Amendment within bounds. There are at least two areas of low-hanging fruit where Empirical Liberty can be protected without risking serious detriment to the government's ability to regulate more generally.
First, the First Amendment should scrutinize legal restrictions on research. Philip Hamburger has written about the constitutional flaws in human subjects research (as have I.) Federal research restrictions apply any time a researcher has the intent to produce generalizable knowledge, even if the acts in which he engages are otherwise perfectly legal. Since these restrictions target research qua research, any level of commitment to Empirical Liberty should trigger some form of constitutional scrutiny of these laws.
The second area ripe for reform is regulation that directly and purposefully restricts access to private information. These laws include civil and criminal trade secrets laws, privacy laws and anti-hacking laws (including the Computer Fraud and Abuse Act). These laws differ from conduct regulations of general applicability because they are designed to target and obstruct information-gathering activity. However, they also serve concrete and important state interests. Trade secrets can help foster innovation. Anti-hacking laws prevent espionage, denial-of-service attacks and downstream identity theft. Wiretapping laws and legal duties of confidentiality provide a healthy and necessary respite from the pressure of social judgment. Many of the laws designed to manage information flows have a sufficiently compelling explanation at their center that they should withstand facial challenges and avoid wholesale razing.
Nevertheless, First Amendment interests in Empirical Liberty should give litigants an opportunity to challenge the edges of information-gathering prohibitions through as-applied challenges when the laws are used to obstruct harmless and socially beneficial empirical inquiry.
For example, as Orin Kerr has written about extensively, the CFAA has been interpreted in some jurisdictions to apply serious civil and criminal penalties to anybody who accesses a website for a purpose that violates the website's terms of service. Both the criminal and civil remedies in the CFAA expose violators to much more liability than an ordinary contract claim would. In theory, a website's terms of service could restrict access to users who prefer dogs to cats, and unsuspecting cat-lovers would become criminally liable by continuing to engage the website. Of course, websites do not have these sorts of wacky terms, but they do have terms that forbid scraping publicly available information or the use of fake identities to make online accounts.
The CFAA is a big threat to researchers who test online services for evidence of racial bias or who scrape publicly displayed information in order to put it in a more usable form for sociologists. The ACLU is currently representing a group of researchers to challenge the CFAA on First Amendment grounds using a theory quite consistent with Empirical Liberty, and I wish them luck.
Of course, courts cannot give the robust constitutional protection to Empirical Liberty that they currently apply to Claim Liberty. Unbridled experimentation and information-gathering would run roughshod over the rights and interests of other people. But courts can and should recognize a constitutional interest when the law cuts off empirical inquiry that poses little or no social harm.