Rorty, the first amendment and antirealism: Is reliance upon truth viewpoint-based speech regulation?
David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Journal of Moral Philosophy 1 (1):69-88 (2004)
In this article I investigate the implications of antirealism, as characterized by Richard Rorty, for First Amendment jurisprudence under the United States Constitution. It is hoped that the implications, while played out in the context of a specific tradition, will have more universal application. In Section 1, Rortys pragmatic antirealism is briefly outlined. In Section 2, some effects of the elimination of the concept of truth for First Amendment jurisprudence are investigated. Section 3 argues for the conclusion that given the antirealist stance, the Supreme Courts usage of the true/ false fact distinction is actually an uncritical allowance of viewpoint-based discrimination into speech protection that has potentially far-reaching and restrictive results for important speech. Finally, in Section 4 Rortys antirealism is combined with various traditional models of First Amendment analysis to see how it would function. The conclusions aimed at are twofold. First, that Rortian antirealism is compatible with the traditional models underlying First Amendment theory. Second, that a realization that truth is the result of, in Rortys words, intra-mundane discourse leads to an argument for different and potentially stronger and more farreaching protections to speech.
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