Winning Arguments

51 Pages Posted: 23 Mar 2018

See all articles by Julie Seaman

Julie Seaman

Emory University School of Law

Date Written: January 1, 2017


The classical model of reason depicts a person who, like Rodin’s Thinker, applies her higher mental faculties to the available evidence and arrives at the correct – or at least the best – answer to a given problem. Likewise, the dominant metaphor of the First Amendment envisions the ideal of a free speech marketplace in which rational consumers choose the best ideas from among those on display, ultimately resulting in the discovery of truth. Thus, the marketplace model as a justification for free speech protection closely tracks the classical view of reason and appears to depend on such a view as its foundation. Yet, as has become apparent in recent decades, people are very often irrational: we harbor a multitude of cognitive biases, engage in motivated reasoning, and frequently choose false and pernicious products from the marketplace of ideas. It is thus not surprising that most First Amendment scholars have abandoned epistemic rationales for freedom of speech in favor of justifications grounded in process-based models of democratic self-governance. Recently, however, a new theory has emerged positing that the evolved function of human reason is not to discover truth but, instead, to make and win arguments. This “Argumentative Theory of Reasoning” explains many of the cognitive biases and irrationalities long observed across many fields of academic study; as an alternative explanation of human reasoning, it has intriguing, if somewhat counterintuitive, implications for First Amendment law. Although reasoning may have evolved to serve the purpose of winning arguments rather than gaining accurate knowledge, it turns out that understanding the psychology of reasoning can illuminate the ways in which a free marketplace of ideas can actually lead to optimal epistemic outcomes. The Argumentative Theory of Reasoning ironically suggests that we should give truth another look as a solid foundation for freedom of speech protection.

Keywords: Free Speech, First Amendment, Marketplace of Ideas, cognitive bias, democratic theory, argumentative theory of reason

Suggested Citation

Seaman, Julie, Winning Arguments (January 1, 2017). Law & Psycology Review, Vol. 41, No. 1, 2017, Available at SSRN:

Julie Seaman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics