Christopher P. Guzelian
Thomas Jefferson School of Law
Iowa Law Review, Vol. 93, pp. 881-928
Northwestern Public Law Research Paper No. 05-19
Traditional First Amendment categorizations of speech content, entrenched as constitutional precedent through many cases and decades, fail to reflect the three fundamental philosophical categories of speech content: scientific speech, historical interpretations, and viewpoints. In particular, courts ignore or grossly mishandle questions of what First Amendment protection to give scientific speech. This constitutional mistreatment of scientific speech - a considerable fraction of all speech content - suggests that structural infirmities may exist within the First Amendment's purportedly stable core.
In this essay, we identify scientific speech's unique, knowable attributes not shared by the two other kinds of legally relevant speech. We then advance a novel argument: some instances of false scientific speech (i.e. misleading scientific opinion) are theoretically subject to legal liability under existing First Amendment law or its logical, predictable extension, courts' failures to properly apply those principles notwithstanding. We also preliminarily examine the merits of First Amendment and other legal defenses to scientific speech suits.
Number of Pages in PDF File: 48
Keywords: First Amendment, predictable liability, free speech, false speech torts, misleading scientific opinions, uncertainty, science, Evidence-Based Logic, EBL
JEL Classification: D81, D62, D80, D83, D84, K13, K14, K19, K32, Z00
Date posted: September 27, 2005 ; Last revised: December 3, 2009
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