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The Empirical First Amendment

17 Pages Posted: 23 Aug 2017 Last revised: 26 Aug 2017

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Date Written: August 20, 2017

Abstract

The First Amendment should protect not only the right to share ideas and factual claims, but also a (limited) right to test them. At first, this proposition will seem implausible, even dangerous. The right to share and receive ideas is protected in part because expression causes no direct, physical harm. Testing the validity of a claim, by contrast, often involves conduct that can directly bring non-communicative harms. But despite these legitimate concerns, a limited right to information-gathering and experimentation is necessary for a coherent and well-functioning First Amendment.

First, the performance of the “marketplace of ideas” depends on our ability to validate and invalidate competing claims. Most claims, whether trivial or profound, are empirical claims that should be accepted or rejected by their audience on evidentiary grounds that the listeners can experience for themselves. The proverbial marketplace cannot function if listeners are unable to access information or to run the experiments they need to assess the validity of the claims that are offered to them. The state therefore exercises great control over human knowledge if it has unfettered power over the means of empirical testing, even if it has no ability to suppress the claims that are offered for public acceptance.

Second, the prospect of state suppression of empirical testing is not hypothetical. The government frequently exercises state power in ways that not only have the effect but the very purpose of suppressing empirical inquiry. Federal and state regulations of research prohibit otherwise legal conduct that is done with an intent to learn. Proposals for more and greater restrictions on research are emerging in the wake of advances in machine learning and AI-generated research. Other laws indirectly but severely limit the ability to test hypotheses and generate new knowledge in the course of regulating trade secrets, privacy, professional malpractice, computer hacking, and public records, again often with the very purpose of obstructing access to knowledge.

This essay explains why free speech theory and case law should, can, and to some extent already does recognize a First Amendment interest in testing competing theories. It then suggests how this constitutional interest can be cautiously expanded. This expansion will inure to the benefit of not only the participants, but the modern regulatory state as well.

Keywords: First Amendment, free speech, experimentation, epistemology, scientific claims

Suggested Citation

Bambauer, Jane R., The Empirical First Amendment (August 20, 2017). 78 Ohio State Law Journal ___ (2017, Forthcoming); Arizona Legal Studies Discussion Paper No. 17-19. Available at SSRN: https://ssrn.com/abstract=3023396

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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