Academic journal article
By Posner, Richard A.
Stanford Law Review , Vol. 54, No. 4
In The First Amendment's Purpose, (1) Jed Rubenfeld sets against the "cost-benefit balancing" approach to free speech issues, (2) with me as spokesman, (3) an approach that forswears balancing in favor of inquiry into legislative or regulatory purpose ("purposivism"). From certain "paradigm cases" (4)--by which he means constitutional interpretations today uniformly accepted as valid--he infers three things: The First Amendment (5) forbids all regulation intended to limit the expression of opinion ("no one can be punished for expressing himself on a matter of opinion" (6)), regardless of consequences. It forbids no regulation of expression, again regardless of consequences, that is not so intended. And it allows all false factual assertions to be punished.
The contrast between Rubenfeld's approach and the pragmatic approach to free speech and other legal issues, an approach that I have defended, (7) is stark, and provides the stimulus for this paper. I shall assume in what follows that the reader has read his article.
I must explain at the outset what I mean by "pragmatism," "pragmatic adjudication," and "the pragmatic approach to free speech." Pragmatism is a complex philosophical movement (8) the core of which is a challenge to the preoccupation of the central philosophical tradition of the West, from Plato to Kant and Russell and Carnap, with establishing the foundations of knowledge--the conditions under which scientific, moral, and political beliefs can be said to be true. Pragmatists believe that the task of establishing such foundations and so validating our beliefs as objective is either impossible or uninteresting, and in either case not worth doing. The test for knowledge should not be whether it puts us in touch with an ultimate reality (whether scientific, aesthetic, moral, or political) but whether it is useful in helping us to achieve our ends. The human mind developed not to build a pipeline to the truth but to cope with the physical environment in which human beings evolved, and so be tested not by its correspondence with "reality" but by the consequences of believing or disbelieving it.
Pragmatism doesn't lead in a straight line to a philosophy of adjudication. But it encourages a mindset that is skeptical of any such philosophy that casts the judge in the role of a quester after certainty who employs to that end tools as close to formal logic as possible. It encourages the thought that the object of adjudication should be to help society to cope with its problems, and so the rules that judges create as a by-product of adjudication should be appraised by a "what works" criterion rather than by the correspondence of those rules to truth, natural law, or some other high-level abstract validating principle.
This approach is easily derided as unprincipled, ad hoc, and "political"; but it is these things only if it is thought to entail the disregard of the systemic as well as immediate consequences of judicial decisions, which no pragmatist judge worth his salt believes. Indeed, a pragmatist would choose to be a formalist judge if he thought formalism in adjudication would produce on the whole better social consequences than attempting to weigh up the likely consequences of each decision. I happen not to think formalism is a workable judicial philosophy, however, and though it would take me too far afield to argue that here, (9) I shall, in criticizing Rubenfeld's approach, be urging the unworkability of a formalist approach to free speech, even one defended on pragmatic grounds.
The pragmatist who has decided to be not a formalist judge (at least in free speech cases (10)) but a pragmatic one reads the relevant language of the First Amendment ("Congress shall make no law ... abridging the freedom of speech, or of the press") but finds nothing very helpful there so far as deciding the actual cases that arise nowadays is concerned. (That is an important qualification, to which I'll return: There is a core of settled meaning to the First Amendment; but settled principles are rarely litigated. …