AbstractTruth as a fundamental ingredient within the flow of discourse and the application of freedom of expression in democratic society has historically received considerable attention from the U.S. Supreme Court. Many of the Court’s central precedents regarding First Amendment concerns have been determined by how justices have understood truth and how they have conceptualized the complex relationship truth and falsity share. Despite the attention truth has received, however, the Court has not provided a consistent understanding of its meaning. For these reasons, this article examines how the Supreme Court has conceptualized truth in freedom-of-expression cases, ultimately drawing upon the results of that analysis, as well as pragmatic approaches to philosophy, the so called “pragmatic method” put forth by American philosopher William James, to propose a unifying conceptualization of truth that could be employed to help the Court provide consistency within its precedents regarding the meaning of a concept that has been central to the Court’s interpretation of the First Amendment since, in many ways, another pragmatist and friend of James’s, Justice Oliver Wendell Holmes, substantially addressed truth in his dissent in Abrams v. United States. The article concludes by proposing that the courts conceptualize the nature of truth via three substantially related understandings: that truth is a process, that it is experience-funded, and that it is not absolute and is best approached without prejudice. Each of the three ingredients relates, at least to some extent, with thematic understandings put forth by the Court in previous freedom-of-expression cases, and therefore does not represent a significant departure from justices’ traditional approaches to truth. The model, most ideally, does seek, with the help of pragmatic thought and ideas put forth by Justice Holmes, to encourage consistent recognition of certain principles regarding truth as justices go about considering its nature in First Amendment cases.
British Journal of American Legal Studies – de Gruyter
Published: May 30, 2018
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