Judicial Independence as Free Speech

I wrote last fall about some implications of the metaphor of the “marketplace of ideas,” much used (especially in the United States) in the realm of free speech law. What prompted my reflection was a presentation by Robert Post, the Dean of Yale Law School, who argued that institutions engaged in the production of specialized knowledge indispensable  in a democracy―first and foremost universities―actually do not practice free speech internally. Not all ideas are equal in an academic setting. Academic disciplines accept some claims as true and reject others as false, and so, argues Dean Post, it is misleading to apply the notion of a marketplace of ideas, which implies the equality of all the competing ideas, when discussing academic freedom. Academic freedom is not the freedom of individual academics to say whatever they want without suffering negative consequences for it, but rather the freedom of academia as a whole to apply only its own disciplinary criteria to judging purportedly academic ideas.

For my part, I think that Dean Post is right to point out that some institutions that are essential for a healthy marketplace of ideas do not function on market principles internally. I also said, however, that he is wrong to say that this makes the marketplace metaphor inapplicable, because the same situation prevails in most real market too―firms, which are essential sellers in most markets, also do not follow the market principles internally, as the great Ronald Coase pointed out.

Academic institutions are not the only ones to which these thoughts apply. And here’s a crazy thought: judicial independence, at least as it has developed in Canada, looks a lot like an instance of the sort of free speech for an expert community described by Dean Post.

Like universities, the courts are in the business of producing a particular kind of ideas―specifically, ideas about the truth or falsity of certain propositions of law. And perhaps to an even greater extent than in scientific research, there are recognized ways of generating such ideas (the rules of procedure and evidence that courts must follow) and for evaluating them (appeals). As in scientific research, the institution engaged in the production and evaluation of these ideas (the court system) does not function, internally, as a free marketplace. Unlike in a market, there is a hierarchy, with some producers having higher status than others―courts of appeal, which intervene to correct the errors of trial courts, and which are deemed to be correct simply by virtue of their hierarchical position, rather like in academia hiring or tenure committees, or the editors of scientific journals, are deemed to be right by virtue of their functions.  They, as well as appellate courts, may actually be wrong, and their decisions might be open to external criticism, just as decisions of appellate courts are, but in both cases their judgment is regarded as authoritative notwithstanding external criticism.

And, much as academic freedom means that an academic, can suffer penalties for his work if, but only if, authoritative academic processes or institutions conclude that he or she must so suffer, judicial independence means that a judge can suffer (be punished and, eventually, dismissed from office) only if the members of the institution to which he or she belongs so decide. This is the idea behind judicial councils―advisory bodies which consist mostly (though not exclusively) of judges and which make recommendations regarding judicial appointments and, perhaps more importantly, sanctions to be applied to judges for misbehaviour in office. Now admittedly there are some differences between judicial councils and, say, tenure committees. For one thing, as I just mentioned, their membership does not only consist of judges. For another, their recommendations are not determinative of judicial appointments, and in even in the realm of judicial dismissal, the final decision belongs to political authorities (Parliament and the Governor General in the case of s. 96 judges, provincial governments in the case of provincially-appointed judges). Still, I think that the similarities outweigh the differences.

But does it make sense to speak of judicial independence is a sort of free speech right rather than a self-standing principle? I think it does, at least if we do not take this description to be the only correct one. From the standpoint of judges, independence means being able to say things that they believe to be correct within the parameters of their discipline―for example that an Act of Parliament is constitutional―without suffering unless, as a matter of their own discipline, they are wrong. (Now, judges aren’t punished simply if their decisions are overturned on appeal, but they hate it when that happens; and I suppose that if a judge turns out to always be making wrong decisions―if he or she turns out to be blatantly incompetent―he or she can in fact be punished.)

It is interesting to refer here to what is, I believe, the first formal protection of freedom of speech―that of the 1688 Bill of Rights, which provided “[t]hat the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” This also looks a lot like a right, for members of a specific community engaged in the production of a special kind of public good in the marketplace of ideas―namely, ideas about the government of the country―not to be punished for what they say except insofar as such punishment may be imposed by their colleagues, in that case fellow parliamentarians. Formal protections of freedom of speech, such as that of the American First Amendment and of s. 2(a) of the Charter were then extend to the citizenry as a whole (and to non-citizens too), but, as Dean Post reminds us, the somewhat different institutional version of the freedom of speech has not gone away.

Now, even if my re-conceptualization of judicial independence is not crazy, there remains the question of whether it is useful. I’m not sure that it is. But re-conceptualizations are a favourite pastime of legal academics. Some―the re-invention of areas of the law formerly understood in terms of duty in terms of economics comes to mind―are wildly successful. Others are just games, really. Mine is not exactly likely to bring me Posnerian fame and fortune, but it is fun all the same, for me at least.

The Idea of the Marketplace

Apologies for the lack of blogging for the past week. We had this minor disturbance of a hurricane, and then I went to a conference in Chicago to present my paper on federalism and judicial review.

My topic today is the highlight of that conference, a keynote address by Robert Post, Dean of the Yale Law School. Dean Post spoke about academic freedom, and how (American) courts struggle to understand it and integrate in the the First Amendment jurisprudence. Dean Post as expressed much the same ideas in a brief essay, “Discipline and Freedom in the Academy”, (2012) 65 Ark. L. Rev. 203 (which will, presumably, be available on the Review’s website in some not too distant future), and in a book he published this year (which I haven’t yet looked at). There is a lot of food for thought there, but I would like to focus on one specific claim.

One source of difficulty that courts have with figuring out the true meaning of academic freedom, says Dean Post, comes from the interference of the notion of the “marketplace of ideas.” It is a staple of the American free speech jurisprudence; and of course it sounds intuitively relevant to a discussion of universities, since they are in the ideas business. Unfortunately, this intuition is misguided, according to Dean Post. In the “Discipline and Freedom” paper, he writes that “[t]he marketplace of ideas is designed … to eliminate content discrimination. It is supposed to enshrine an equality in the field of ideas.” But there is, and can be, no such equality in academia, or in any setting that is devoted to the pursuit of knowledge, especially of expertise, the institutionalized sort of knowledge universities are charged with producing. Academic disciplines recognize claims as true or false; arguments as valid or not. A university (as well as, say, a scientific journal) must be able to say that some ideas are brilliant and others rotten, and it does so all the time―when hiring a would-be professor, when granting him or her tenure, etc. Importing the notion of the marketplace of ideas into the academic setting contributes to the belief that academics are free to say whatever they please, but that’s nonsense. Once we understand that the purpose of universities is not to foster an equality of ideas but to generate expertise, we also understand, concludes Dean Post, that academic freedom is really the freedom of the academic profession to judge its members and their output by the standards of truth and validity it sets itself.

This is just a bare-bones sketch of one of the lines in Dean Post’s rich argument. I hope it is fair to him, even if it surely does not do it justice. Dean Post’s idea that universities, and the production of knowledge more generally, require discipline and judgment about what is true and valid, and what is not, seems obviously right to me. And I think Dean Post is right too that there is a danger in relying on the metaphor of the marketplace of ideas to develop a jurisprudence of academic freedom. But the danger is not exactly the one he sees. It is not that the marketplace of ideas is an inapt metaphor for describing the production of knowledge, but that it is a complex one, and easily misunderstood. Dean Post, I am afraid, it guilty of misunderstanding it in two ways.

First, a marketplace isn’t a place of equality. If the market is free, then everyone is equal in the sense of being legally able (which is of course not to say capable, or inclined) to enter it as a buyer or a seller. But not every seller will be successful, because every seller competes against other sellers of the same or similar products. Some products fare well; others do not. If the market is free, it is the preferences of the buyers, rather than the decisions of the government, that determine who succeeds and who fails. The marketplace of ideas is no different. It is not a place of equality. Some ideas are accepted, others rejected. When we rely on the metaphor of the marketplace of ideas in discussing freedom of speech, we imply that this particular marketplace must remain a free one, in the sense that the preferences of the “buyers”―the readers, the listeners, etc.―determine which “products”―ideas―succeed, and which fail. The government cannot pick winners here, or erect barriers to entry, or even engage in much of the regulation that we consider acceptable in other markets.

Second, the market doesn’t consist just of individual sellers and buyers. In most markets, (most) sellers (and often buyers, but the demand side is less important here) are firms. And firms, as Ronald Coase pointed out in his brilliant paper on “The Nature of the Firm“, do not function internally according to the market principles of free competition at all. They are like islands of central planning, little command economies, even as their relationships with each other are structured according to market principles. The reason for this, Coase explains, is that on (relatively) small scales, command economies are actually more efficient than markets, because they avoid transaction costs. What about the marketplace of ideas then? Does it too have its “firms”―organizations which, internally, are not structured on free market principles? Arguably, Dean Post’s insight about universities not obeying marketplace of ideas principles is the equivalent of Coase’s insight about firms―universities are (one sort of) firms in the marketplace of ideas. (Others probably include the institutional press, and perhaps other producers of ideas). Internally, as Dean Post points out, universities or scientific journals are not marketplaces of ideas. But externally, they are producers on the great marketplace of ideas of our society. When, for example, I submit a paper to an academic journal, the journal evaluates it according non-marketplace criteria of truth and validity. But once it decides to publish it, it arrives on a market place of ideas, where it might have to compete against other papers in the same area, which have also passed the tests of truth and validity, and where its success or failure will be measured not by any institutional assessment, but by the interest of the readers and their willingness or not to accept my claims.

Now I’m not yet sure what, if anything, the takeaway from this is. I think that Dean Post’s key insight about the importance of institutional practices of assessment of truth and validity of scientific claims and arguments holds true whether we describe this assessment as taking place outside the marketplace of ideas altogether or within special structures, not organized on marketplace of ideas principles, which are nonetheless themselves part of the marketplace of ideas. My thinking here is still a prototype―I want to show it off, but am not yet ready to put it on the market.