The Logic of the First Amendment
Clifford G. Holderness
Boston College - Department of Finance
Michael C. Jensen
Harvard Business School; Social Science Electronic Publishing (SSEP), Inc.; National Bureau of Economic Research (NBER); European Corporate Governance Institute (ECGI)
William H. Meckling
Simon School, University of Rochester (Deceased)
March 1, 2000
Harvard Business School NOM Unit Working Paper No. 00-01
We develop a framework that is applicable to all freedom of expression disputes. Our framework is based on the meaning of freedom which is based on the meaning of scarcity, and which, in turn, is based on the existence of physical incompatibilities. To maximize freedom, one must differentiate between scarce and non-scarce rights. Scarce rights can not be granted to everyone because of natural limitations caused by physical incompatibilities. If one person burns a tree for warmth, another cannot use the tree to build a house. Conflicts caused by such physical incompatibilities are resolved peacefully by giving exclusionary rights in the physical use of the tree to a single, private party. These are scarce rights because more than one person cannot use the tree when there are physical incompatibilities. Non-scarce rights, in contrast, can be granted to everyone. The contents of one's speech, for example, in no way limits what other people can may say or do. To maximize freedom, each scarce right must be assigned to some individual person, and all non-scarce rights should be assigned to everyone. We use this framework to provide an integrated and consistent analysis of prominent Supreme Court rulings on free speech issues, including public access to government and private property, symbolic speech (including flag burning), libel, and obscenity.
Number of Pages in PDF File: 40
Keywords: Freedom, First Amendment, property rights, externality, physical incompatibility, scarce rights, non-scarce rights, constitutional law
JEL Classification: K10, K11working papers series
Date posted: March 5, 2000 ; Last revised: January 17, 2011
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