Imagine two speech scenarios. In the first, a noted scientist publishes a paper offering specific, detailed, and accurate empirical evidence concerning the genetic structure of a rare and fatal disease. Few people suffer from the disease, and even fewer will understand the paper, but it represents a great leap forward in understanding the underlying nature of the disease. The paper does, however, include patient information that is supposed to be confidential under federal privacy laws. In the second, a newspaper published a letter to the editor by a local crank charging that the climate change movement is a worldwide conspiracy in which scientists are deliberately lying to the public. The letter is a poorly supported rant. Which speech deserves greater protection under the First Amendment?
Although he would offer some protection to both, Ashutosh Bhagwat argues, in a new working paper, Details: Specific Facts and the First Amendment, that the second speech—the false, unhelpful work of what Holmes would have called a “poor and puny anonymity”—deserves more protection than the paper that may revolutionize understanding and treatment of a variety of genetically based disorders, a Nobel Prize in waiting. His answer is not outrageous, and some may find it unsurprising. But even recognizing that the question exists is important.
Bhagwat is riding at the crest of a wave. The status of facts under free speech law is of increasing interst to various leading First Amendment scholars. They include Frederick Schauer, whose paper Facts and the First Amendment I reviewed here some time ago; Eugene Volokh, who has written on similar issues in his article Crime-Facilitating Speech, 57 Stan. L. Rev. 1095 (2005); Robert Post, who in a forthcoming book discusses the place of knowledge-generation within First Amendment law; and Mark Tushnet, whose recent paper on the Stolen Valor Act discusses “the constitutionality of regulating false statements of fact.” Bhagwat’s paper, with its focus on true rather than false statements, makes a valuable contribution to this emerging literature. But its value lies in its very existence as well as its substance. When this many leading scholars zero in on an issue, that is good evidence of a problem of some kind.
Part of the problem in this area lies with the kinds of sweeping generalities that often festoon First Amendment opinions. A classic example is Justice Holmes’s statement that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Another is the Court’s statement, in Gertz v. Welch, that “under the First Amendment, there is no such thing as a false idea.” Still other generalities are not mere rhetoric, but powerful doctrinal rules. Thus, the central rule of modern First Amendment doctrine is that government may not regulate speech on the basis of its content; and an increasingly important area of First Amendment law is government speech doctrine, whose exclusion of government speech from the strictures of the First Amendment has taken on a vast scope in recent years. These tropes and rules are grounded in sound intuitions. But in leveling so much speech, they leave profound complications concerning the value and nature of factually detailed speech unaddressed. Bhagwat’s paper represents an effort to bring First Amendment law back to reality.
Bhagwat helpfully lays out several areas in which factually detailed speech may raise First Amendment concerns: 1) the public disclosure of personal details, such as newspapers’ publication of the identity of sexual assault victims; 2) the publication of “detailed instructions for criminal or dangerous behavior,” such as a manual on committing and concealing murders that is later used as a how-to guide by a killer; 3) the publication of scientific and technical details, such as a computer code that enables one to circumvent the encryption of DVDs and make them available for unlicensed copying; and 4) the publication of military and diplomatic secrets, as in the Pentagon Papers or Wikileaks cases. In all these cases, Bhagwat writes, “the fundamental problem posed is whether factual speech, containing very specific details . . . , is fundamentally different for First Amendment purposes from more abstract literary, artistic, or political/ideological speech.”
Bhagwat argues that to answer this, we need to know what key First Amendment value we are seeking to advance. His answer, like that of Robert Post, James Weinstein, and others, is that “the primary . . . function of the Free Speech Clause of the First Amendment is to facilitate political dialogue, and more generally, to enable the process of democratic self-governance in the United States.” The value of factually detailed speech must be determined in light of how, and how much, it contributes to public discourse.
That value will vary depending on the information involved. For example, “speech concerning scientific and technical details will often play a central role in democratic discourse.” So may some military or diplomatic secrets. On the other hand, “personal details and instructions for criminal or dangerous behavior . . . seem to have far less to do with the political sphere.” They may matter in particular contexts, but on the whole, the relationship of such specific details “to any form of self-governance is tangential at best, and even where the relationship exists, it is often less direct than with respect to pure ideas”—no matter how idiotic the idea.
The need to consider the context of specific speech involving factual details is ultimately unavoidable, Bhagwat argues. But it can proceed on a sounder footing than we have today. Under current law, “the same doctrinal rules that apply to regulations of ideas apply to the regulation of details.” That makes for an awkward fit, because “laws seeking to directly suppress details will almost always be content-based,” given that they will single out precisely the details that need to be suppressed, and will thus face a heavy burden. But, as is often the case in First Amendment law, “when faced with such regulations, courts have tended to twist or even ignore that doctrine” in order to respond to the particular exigencies of a case.
Bhagwat argues that reform must start by recognizing that “not all details are created equal. Some factual speech is central to the process of self-government, and so deserving of the highest constitutional solicitude, while other such speech is far more peripheral.” In each case, the court must begin by considering a mix of factors, such as “whether the speech was a part of public discourse, and the extent of the public interest in that speech.” Factual details that lie within the core of public discourse should be vigorously protected. “Factual details outside that core,” on the other hand, should undergo intermediate scrutiny. That test, which is designed to “analyze regulations of speech which has some substantial value, but which clearly falls outside the core of the First Amendment’s protections,” will allow courts to weigh the value particular factual details for public discourse against their potential harms. And it will be more forgiving than the test used for some forms of opinion or advocacy, such as speech urging the violent unlawful overthrow of the government, because it will not insist that the speech be highly likely to cause imminent harm.
As with most First Amendment reform pieces, the value of Bhagwat’s piece lies less in the outcomes it recommends—judges do a reasonably sensible job already, and the changes he would like to see aren’t that dramatic—than in its capacity to better explain our intuitions, enhance judicial transparency, and offer guidance in future cases. Even so, I have some bones to pick with it. Bhagwat’s focus on particular kinds of restrictions on factually detailed speech gives us something more than the trees but something less than the whole forest. In particular, he neglects three questions that may yield less of an immediate doctrinal payoff, but have a greater relationship to the doctrinal and epistemological difficulties that seem to plague the courts in this realm. First is the question of institutional allocation: the key issue with respect to factually detailed speech may not be how much of it should be regulated, but who regulates it. Second, Bhagwat’s suggestion that much factually detailed speech is less valuable to public discourse and self-governance than pure opinion speech is questionable. Opinions may constitute the surface of public discourse, but they rest on a foundation of facts. Opinions are plentiful and cheap; good facts are hard to come by. As important as the question of how much we should protect factually detailed speech, then, may be the question of how we protect the generation of factually detailed speech. Finally, and on a related point, it is worth asking how we can encourage the production of facts, and how Bhagwat’s approach contributes to the maintenance of sound incentives to produce facts.
What these questions have in common is that they suggest the need to make room in the First Amendment for certain kinds of institutions and institutional practices, despite First Amendment law’s apparent hostility toward ontent discrimination. The courts may like to say that there is no such thing as a false idea, but universities—including public universities—could not survive without the ability to conclude that some thinkers are shoddy and their ideas lousy. In the long run, the facts generated by this disciplinary process can be far more important to public discourse than any single letter to the editor written by a local crank; if we don’t tend to their development and protection, democracy will become idiocracy. The best way to do so may be to recognize the role played in public discourse and the First Amendment by specialized institutions. Although First Amendment law does a good deal along these lines in practice, it has little to say about it in theory. Given his focus on the government as censor, neither does Bhagwat. Over the long haul, however, these questions may be both more important than the question what to do with a hit man’s manual, and more deeply connected to the problems that confront current First Amendment theory and doctrine.
That said, simply by putting the spotlight on the issue of factually detailed speech, Bhagwat has rendered a great service. Although his focus on the government’s censorial role may leave a good deal of terrain to be explored, he deals clearly and well with the issues within the scope of his paper. This is a leading contribution to the emerging literature dealing with the epistemological crisis of the First Amendment.