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Robert Post on Freedom of Expression

At the end of a debate, Mr. Sum realized how strong the position that Donald Trump has now acquired is. He felt that at the same time the positions of scientific expertise and independent news provision have weakened. He thought that these things were related and went on YouTube to search for a relevant analysis. About the meaning(s) of the fundamental right to free expression in American politics and academia. He found a podcast with Robert Post, a professor who oversees the subject at Yale.

Post takes a functional approach, anchoring the validity of a fundamental right in the interest it seeks to protect. This leads to the question of the importance of protecting freedom of expression (the first amendment in the USA). Post finds the answer in the interest of individual citizens to be sovereign over their state, to participate meaningfully in the We, the people from which the US Constitution derives its authority. Post argues that in order to play that role vis-à-vis the government, citizens must be free from three types of government interference: (i) determining what they can and cannot say, (ii) determining what is and is not good to say, or (iii) deciding that they must speak. These freedoms are essential for citizens’ sovereignty over government.

Arguing about how to limit that freedom has now almost become a taboo. Yet it is clear to everyone that the freedom of expression from the first amendment is not unconditional. The plagiarizing professor who claims freedom of speech has a problem. Briefly, Post argues that a society cannot exist other than on the basis of specialization and the division of labor among institutions. The state is developing legal rules to that end. And in order for these institutions to function, rules are needed again.

So, according to Post, the USA has citizens who are not only sovereign in their relationship to the state, but are also subject to the rules of the institutions they work in or with. With this approach, Post shows that work in universities hardly allows an appeal to freedom of expression. Their function is education and research, and the supervision of the quality of the work delivered is in the hands of the discipline (the relevant forum of scientists) and not that of the citizen (as sovereign over the state).

It seems that Post’s functional approach offers room to question taboos. But not that he will be able to solve the question as yet unsolvable by science of how the goals (such as the sovereignty of the citizen over the state) should be found and listed as fundamental.