Protecting Public Knowledge Producers
Knight First Amendment Institute at Columbia University, Paper Series on "Lies, Free Speech, and the Law" (2022)
Northwestern Public Law Research Paper No. 22-36
25 Pages Posted: 4 Nov 2022 Last revised: 1 Feb 2023
Date Written: October 30, 2022
In this Essay, I consider the crucial role played by “public knowledge producers” in a healthy democratic system, current threats to public knowledge production in the United States, and doctrinal tools to protect it. I define public knowledge producers as publicly funded individuals or entities whose ordinary professional responsibilities include knowledge production or dissemination, according to disciplinary norms. This definition is similar to Vicki Jackson’s definition of “public knowledge institutions,” but with some differences that I explain in the Essay. Public knowledge producers are essential to a functioning democracy, helping to foster a shared epistemic base, critical thinking skills, and government accountability. Yet their integrity – specifically, their ability to operate with some independence from partisan politics – is threatened by legal, cultural, and political events. On the legal front, developments in both First Amendment law and separation of powers law bode poorly for public knowledge producers’ political independence. These developments include the growing influence of government speech doctrine and unitary executive theory. These legal phenomena parallel, and share a populist bent with cultural and political developments that similarly threaten public knowledge production, including right-wing attacks on “the deep state” and ongoing campaigns against instruction touching on race and gender in public schools. Finally, I turn to counter-forces in First Amendment and separation of powers law that can be marshalled to staunch the damage done by government speech doctrine and unitary executive theory, and to combat efforts to decimate public knowledge production in the United States.
Keywords: first amendment; free speech; government speech; unitary executive theory; democracy
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