Washington Law Review

Essay

Democratic Competence, Constitutional Disorder, and the Freedom of the Press

June 01, 2012 | 87 Wash. L. Rev. 529

Abstract:  In Democracy, Expertise, and Academic Freedom: A First Amendment Jurisprudence for the Modern State, Robert Post offers a powerful argument for why the First Amendment should protect the manner in which professional disciplines produce expert speech. This symposium Essay responds to Post’s book by focusing on the potential interaction between Post’s theory of “democratic competence” and the freedom of the press. Using the WikiLeaks affair as a foil, this Essay concludes that a “democratic competence” approach might provide a more coherent theoretical underpinning for according constitutional protection to newsgathering (as distinct from publication), and might thereby help to answer the unanswerable question about what the First Amendment’s Press Clause actually protects. By the same logic, though, it might also provide for greater restraint on the media insofar as it constitutionalizes conventional arguments about the need to honor the government’s expertise when protecting national security secrets against public dissemination. Thus, the question Post really raises is whether such a deeper but narrower First Amendment is one to which we should aspire.

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