Working Paper No. 04-06:
The Daubert Trilogy In The States

Author(s):

David Bernstein, Jeffrey Jackson

Date Posted: 2004

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Abstract:

Of late, leading legal scholars have argued that the First Amendment should not stand in the way of restrictions on freedom of expression intended to alleviate discrimination. A powerful, normative defense of the First Amendment from the competing claims of the antidiscrimination agenda is therefore greatly needed.

This Essay seeks to provide the outlines of such a defense. Part I of this Essay argues that an unregulated marketplace of ideas is preferable to government restrictions on freedom of expression, not because the marketplace of ideas is efficient and always leads to benign results, but because the alternative of government regulation is far worse. Part II of this Essay defends the ability of judges to enforce a relatively neutral conception of freedom of expression from Stanley Fish and others who argue that 'there is no such thing as free speech.' Fish and his allies ignore cultural and social incentives and restraints that prevent judges from simply voting in favor of their preferred political outcomes. Part III of this Essay critiques scholars who argue that courts should tolerate partial restrictions on freedom of expression until certain egalitarian goals are met. Such views rely on a naive conception of politics that bears little relation to how political markets actually work. Part IV of this Essay argues that if the courts were to allow the First Amendment to be subordinated to antidiscrimination concerns, authoritarianism would inexorably follow--a conclusion supported by experience with speech restrictions on college campuses and, recently, in Canada. This Essay concludes by pointing out that those legal scholars who are most eager to restrict the First Amendment are ironically among those most in need of its protections.