Mark Tushnet, The Next Generation of Free Expression Scholarship: A Very Short Manifesto (In Memory of Fred Schauer) (Harv. Pub. L. Working Paper No. 24-12, 2024).
Abstract: This manifesto is inspired by the accomplishments of leading figures of the past generation of free expression scholars—Lee Bollinger, Robert Post, Fred Schuaer, and Geoffrey Stone—and triggered by Brian Leiter’s superb essay in Daedalus, “Free Speech on the Internet: The Crisis of Epistemic Authority.” A great deal of free expression scholarship over the next decade will probably deal with what’s signaled in the title of Leiter’s essay: the regulation of social media and artificial intelligence and other innovations, some now only nascent, in the information economy. I think the most important free expression scholarship over the next decade should deal with what’s signaled by the essay’s subtitle: confronting the implications of serious challenges to the very ideas of information and truth themselves. The manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. That discussion is followed by a description of challenges to the idea of epistemic authority coming from within a number of epistemic communities: the natural sciences, journalism, and the university, including several disciplines. These internal challenges pose obvious questions for ordinary citizens: if insiders disagree, what are outsiders to do? Those questions are deepened by concerns taken up next: what social and political factors affect the ways in which epistemic communities are constituted in the first place and then allocate authority within the communities and determine who is within and who outside the community? The manifesto’s final section briefly examines the normative implications of the preceding discussion. My personal normative takeaway is that the serious (that is, non-frivolous) questions about epistemic authority and the accompanying socio-political analysis should lead to a normative modesty acknowledging that in almost all the interesting cases the question of whether some regulation of expression is likely to be close.