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9 Comm. L. & Pol'y 1 (2004)

handle is hein.journals/comulp9 and id is 1 raw text is: COMMUNICATION LAW AND POLICY Volume 9 Winter 2004 Number 1 Copyright © 2004 Lawrence Erlbaum Associates, Inc. STANDING AT THE CROSSROADS: SOCIAL SCIENCE, HUMAN AGENCY AND FREE SPEECH LAW MATTHEW D. BUNKER* DAVID K. PERRY** The disjunction between First Amendment free speech thought, in which the human self is conceived as rational and autonomous, and empirical social scientific notions of human thought and action, which tend toward a more causally deterministic view, poses great difficulties. After examining several recent court cases that confront this theoretical disjunction, this article analyzes the conflicting First Amendment standards that may apply in such cases, including the incitement test enunciated in Brandenburg v. Ohio and First Amendment strict scrutiny. Next, the article analyzes a variety of philosophical positions on the issue of human free will. Finally, it identifies and discusses a number of key questions in the debate and offers suggestions for further research. The intersection of social science and the law has long been contro- versial. The extent to which social scientific methods and theoretical structures can or should contribute to the law has been contested in American legal thought since the early twentieth century.1 At the *Reese Phifer Professor of Journalism, University of Alabama. **Associate Professor of Journalism, University of Alabama. 1For an interesting discussion of the interaction between legal studies and com- munication research, see JEREMY COHEN AND TIMOTHY GLEASON, SOCIAL RESEARCH IN COMMUNICATION AND LAW (1990). See also PAUL L. ROSEN, THE SUPREME COURT

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