« Bad English | Main | Are too »
Free speech by the numbers
By Steven | November 4, 2009
In case you were wondering what the First Amendment was all about, US Court of Appeals judge and law and economics whizz Richard Posner has the answer: Ax – Bx = -(pH / (1 + d)n + O)x where the xs are subscripts denoting derivatives and relate to potential strictness of regulation; the n is a superscript/power; A is cost of regulation; B is the benefits of speech; pH is the probability of harm (the denominator is a discount for futurity); O is offensiveness.
More specifically, this is the optimum level of speech regulation. And you thought this free speech stuff was hard.
I read about this in the excellent collection of essays in Eternally Vigilant: Free Speech in the Modern Era (2002, University of Chicago Press) but he also eleborates on it in his seminal text Economic Analysis of Law.
Of course, this is really just a cost-benefit equation. My dirty secret: I have an undergraduate degree in economics. So I’m intrigued by the interface between law and economics, which I think brings a useful rigour to legal policy analysis and sometimes yields interesting insights. I’m also faintly appalled by the simplistic and mechanistic nature of some law-and-economists’ thinking, and often feel that their reasoning and assumptions (particularly about our response to incentives) seem far distant from the world I inhabit.
Read up on it if you like. A few interesting points, though. Posner is inclined to take offensiveness out of the equation altogether as a justification for regulating speech (that is, adding to its harms) because it is often the byproduct of speech that challenges important values and beliefs, and can pave the way for new ways of thinking. He argues that some types of regulation can sometimes actually promote speech. He accepts that it’s so difficult to quantify the costs and (in particular) the benefits of speech, so it’s hard to make his formula work.
I’m with him so far.
He also rejects political speech as a special category deserving of greater protection. He’d tolerate hate speech (“It is after all only a dogma, and recent dogma, that the races, sexes and so forth, are equal; and to punish people for challenging it seems as objectionable as punishing people for advocating communisim or laissez-faire.”) He accepts the that there are arguments in favour of campaign finance regulation, but thinks them overstated and outweighed by the disadvantages of regulation.
Not so sure about any of that.
Interestingly, Posner is no “marketplace of ideas” idealogue, and goes into some detail about the imperfections of the analogy. But in the end:
While markets in ideas do not come very close to the economist’s ideal of perfect competition, it is difficult to see how regulation can bring them any closer except in a few areas where objectivity in a strong sense can be achieved by agencies or courts [he thinks defamation comes in here] or where unregulated speech creates calamitous dangers. And looking back over the whole course of history we realize that the marketplace of ideas has been responsible for much of what we think of as civilization. The value of competition in ideas, coupled with the costs (including error costs) of effective regulation, provides some grounding for a legal approach that deems the benefits of free speech to be great, and thus requires proof of great cost… to justify restricting speech.
That’s pretty much where I come down too.
Topics: Electoral speech, Free speech theory | 50 Comments »
50 Responses to “Free speech by the numbers”
Comments
You must be logged in to post a comment.
November 5th, 2009 at 8:51 am
Yawn. This is basically Mill, with a psuedo-scientific formula attached to make it look rationally necessary. But, of course, that formula is useless as a pragmatic (Posner’s touchstone of relevance) matter. Compare it to, say, F = M x A. This is “useful” as we have universally agreed units to measure each variable – M in kgs, A in m/s, etc. But in Posner’s equation, all the variables are observer specific. O stands for offensiveness to whom … the most sensitive observer? Probability of Harm is decided by whom … the most risk-averse? And in the chunk you quote, Posner himself tacitly recognises that B – the “benefit” of speech – simply must be “deemed” to be great, which rather skews the equation.
Point is, Posner has a particular ideological preference for a particular approach to speech, which he then hides behind a faux-scientific formula to make it look more than it is. Not that I have particular problems with his basic conclusions – I’m a good Western liberal too.
May 21st, 2020 at 10:24 am
… [Trackback]
[…] Read More here on that Topic: medialawjournal.co.nz/?p=304 […]
June 4th, 2020 at 1:04 am
… [Trackback]
[…] There you will find 60543 more Information on that Topic: medialawjournal.co.nz/?p=304 […]
June 17th, 2020 at 12:17 pm
… [Trackback]
[…] Info to that Topic: medialawjournal.co.nz/?p=304 […]
June 20th, 2020 at 1:28 am
… [Trackback]
[…] Find More to that Topic: medialawjournal.co.nz/?p=304 […]
July 16th, 2020 at 6:36 am
… [Trackback]
[…] Read More Information here to that Topic: medialawjournal.co.nz/?p=304 […]
July 17th, 2020 at 8:09 am
… [Trackback]
[…] Here you will find 3081 more Information to that Topic: medialawjournal.co.nz/?p=304 […]
July 19th, 2020 at 10:54 am
… [Trackback]
[…] Find More Info here on that Topic: medialawjournal.co.nz/?p=304 […]
July 24th, 2020 at 5:10 am
… [Trackback]
[…] Information on that Topic: medialawjournal.co.nz/?p=304 […]
August 24th, 2020 at 9:52 am
… [Trackback]
[…] Here you will find 93110 more Information on that Topic: medialawjournal.co.nz/?p=304 […]
August 29th, 2020 at 2:37 am
… [Trackback]
[…] Find More to that Topic: medialawjournal.co.nz/?p=304 […]
September 2nd, 2020 at 7:34 pm
… [Trackback]
[…] Find More on on that Topic: medialawjournal.co.nz/?p=304 […]
September 2nd, 2020 at 10:50 pm
… [Trackback]
[…] Read More here on that Topic: medialawjournal.co.nz/?p=304 […]
September 3rd, 2020 at 2:57 am
… [Trackback]
[…] Here you can find 68424 additional Info to that Topic: medialawjournal.co.nz/?p=304 […]
September 22nd, 2020 at 12:54 pm
… [Trackback]
[…] Find More on on that Topic: medialawjournal.co.nz/?p=304 […]
October 2nd, 2020 at 11:26 am
… [Trackback]
[…] Information on that Topic: medialawjournal.co.nz/?p=304 […]
November 19th, 2020 at 12:24 pm
… [Trackback]
[…] Information to that Topic: medialawjournal.co.nz/?p=304 […]
November 22nd, 2020 at 3:22 am
… [Trackback]
[…] Here you can find 8738 more Information to that Topic: medialawjournal.co.nz/?p=304 […]
November 27th, 2020 at 9:06 am
… [Trackback]
[…] Read More on on that Topic: medialawjournal.co.nz/?p=304 […]
December 16th, 2020 at 12:58 am
… [Trackback]
[…] Here you will find 15407 more Information on that Topic: medialawjournal.co.nz/?p=304 […]
December 18th, 2020 at 4:40 pm
… [Trackback]
[…] Find More Information here on that Topic: medialawjournal.co.nz/?p=304 […]
December 20th, 2020 at 1:40 pm
… [Trackback]
[…] Read More on to that Topic: medialawjournal.co.nz/?p=304 […]
December 25th, 2020 at 11:18 pm
… [Trackback]
[…] Find More Info here to that Topic: medialawjournal.co.nz/?p=304 […]
January 6th, 2021 at 1:15 pm
… [Trackback]
[…] Here you can find 57221 more Info to that Topic: medialawjournal.co.nz/?p=304 […]
January 22nd, 2021 at 12:30 pm
… [Trackback]
[…] There you can find 92574 additional Info to that Topic: medialawjournal.co.nz/?p=304 […]
February 10th, 2021 at 6:56 pm
… [Trackback]
[…] Info to that Topic: medialawjournal.co.nz/?p=304 […]
February 15th, 2021 at 3:11 pm
… [Trackback]
[…] Here you can find 28131 more Info on that Topic: medialawjournal.co.nz/?p=304 […]
March 14th, 2021 at 7:09 pm
… [Trackback]
[…] Find More here on that Topic: medialawjournal.co.nz/?p=304 […]
April 3rd, 2021 at 4:49 am
… [Trackback]
[…] Info to that Topic: medialawjournal.co.nz/?p=304 […]
April 13th, 2021 at 1:16 am
… [Trackback]
[…] Info on that Topic: medialawjournal.co.nz/?p=304 […]
May 8th, 2021 at 6:54 am
… [Trackback]
[…] Find More here on that Topic: medialawjournal.co.nz/?p=304 […]
May 20th, 2021 at 7:48 am
… [Trackback]
[…] Here you will find 72971 additional Information to that Topic: medialawjournal.co.nz/?p=304 […]
June 28th, 2021 at 2:01 pm
… [Trackback]
[…] Read More Information here to that Topic: medialawjournal.co.nz/?p=304 […]
June 28th, 2021 at 11:38 pm
… [Trackback]
[…] There you will find 3861 more Information to that Topic: medialawjournal.co.nz/?p=304 […]
July 25th, 2021 at 1:57 pm
… [Trackback]
[…] Find More here on that Topic: medialawjournal.co.nz/?p=304 […]
September 28th, 2021 at 7:23 am
… [Trackback]
[…] Find More here to that Topic: medialawjournal.co.nz/?p=304 […]
October 10th, 2021 at 4:55 pm
… [Trackback]
[…] There you can find 93341 additional Info to that Topic: medialawjournal.co.nz/?p=304 […]
October 18th, 2021 at 1:15 pm
… [Trackback]
[…] Here you can find 28476 additional Info to that Topic: medialawjournal.co.nz/?p=304 […]
December 5th, 2021 at 6:42 pm
… [Trackback]
[…] Information to that Topic: medialawjournal.co.nz/?p=304 […]
December 10th, 2021 at 12:23 pm
… [Trackback]
[…] Read More on that Topic: medialawjournal.co.nz/?p=304 […]
December 29th, 2021 at 4:15 am
… [Trackback]
[…] Read More here to that Topic: medialawjournal.co.nz/?p=304 […]
January 25th, 2022 at 2:41 pm
… [Trackback]
[…] Find More on that Topic: medialawjournal.co.nz/?p=304 […]
February 2nd, 2022 at 12:53 pm
… [Trackback]
[…] Read More on that Topic: medialawjournal.co.nz/?p=304 […]
March 3rd, 2022 at 1:45 pm
… [Trackback]
[…] Information to that Topic: medialawjournal.co.nz/?p=304 […]
March 6th, 2022 at 9:44 am
… [Trackback]
[…] There you will find 27248 more Information on that Topic: medialawjournal.co.nz/?p=304 […]
March 19th, 2022 at 12:28 pm
… [Trackback]
[…] Find More on on that Topic: medialawjournal.co.nz/?p=304 […]
May 5th, 2022 at 12:11 pm
… [Trackback]
[…] Read More Info here on that Topic: medialawjournal.co.nz/?p=304 […]
June 20th, 2022 at 2:01 pm
… [Trackback]
[…] Find More here on that Topic: medialawjournal.co.nz/?p=304 […]
July 2nd, 2022 at 12:40 am
… [Trackback]
[…] Here you can find 57118 more Info on that Topic: medialawjournal.co.nz/?p=304 […]
July 4th, 2022 at 12:47 pm
… [Trackback]
[…] Here you will find 49055 more Info to that Topic: medialawjournal.co.nz/?p=304 […]