Expert Knowledge in First Amendment Theory and Doctrine
Creators: Haupt, Claudia E.
Publisher: name: Columbia University
Year: 2017
Subjects: subject: Law
subject: FOS: Law
subject: Specialists
subject: Freedom of speech

description: In this dissertation, through three separately published articles, I interrogate the role of expert knowledge in First Amendment theory and doctrine. I argue that expert knowledge ought to play a prominent role in answering doctrinally relevant empirical questions, as in the case of incorporating a scientifically grounded understanding of visual perception into Establishment Clause inquiries concerning religious symbols. Moreover, the generation and dissemination of expert knowledge itself is worthy of First Amendment protection, for example in protecting professional speech. And expert knowledge should determine the scope of First Amendment protection for professional advice. There is, in other words, a close but often underappreciated connection between expert knowledge and the First Amendment.
      In Active Symbols, I challenge the assumption sometimes articulated in Establishment Clause case law involving religious symbols that visual representations of religious symbols are merely “passive” as compared to textual (spoken or written) religious references. Drawing on one relevant body of expert knowledge—cognitive neuroscience—I argue that images are at least as “active” as text. The lack of judicial expertise on the empirical question of how visual images, as opposed to spoken or written words, communicate has led to a distortion in the development of Establishment Clause doctrine. This distortion can be remedied by taking relevant expert knowledge into consideration where such knowledge can answer germane empirical questions that are doctrinally relevant but tend to be outside the realm of judicial expertise.
      Professional Speech argues that the First Amendment protects the communication of expert knowledge by a professional to a client-within a professional-client relationship for the purpose of giving professional advice. The First Amendment thus provides a shield against state interference that seeks to prescribe or alter the content of professional speech. The key to understanding professional speech, I suggest, lies in the concept of the learned professions as knowledge communities. First Amendment protection for professional speech can be justified on all traditional grounds: autonomy interests of the speaker and listener, marketplace interests, and democratic self-government.
      Unprofessional Advice provides a theory to identify the range of valid professional advice for First Amendment purposes. Building on the concept of the professions as knowledge communities, this article explores the range of professional advice that may be given consistent with the professional knowledge community’s common ways of knowing and reasoning and the respective profession’s agreed upon methodology. Because knowledge communities are not monolithic, there is a range of knowledge that is accepted as good professional advice. Advice falling within this range should receive robust First Amendment protection. Advice not within this range, however, is subject to malpractice liability, and the First Amendment provides no defense.