Probability Thresholds

Abstract:     
Scholars and lower courts have traditionally operated under the belief that cases involving direct tradeoffs between free speech and national security call for the application of straightforward cost-benefit analysis. But the Supreme Court has refused to adhere to this approach, instead deciding difficult liberty-versus-security questions with reference to a “probability threshold” - a doctrinal floor defining how likely a potential threat must be in order to register in the constitutional calculus. This doctrinal innovation has served as a necessary corrective to what would otherwise be the systematic overestimation of speech-based threats driven by the interaction of two factors. First, distinct informational asymmetries favor the government, the putative censor. Second, courts and other lay risk analysts - through the exercise of bounded rationality - tend to overstate very low-probability, highly emotionally salient dangers.

Number of Pages in PDF File: 65

Keywords: first amendment, probability, clear and present, behavioral law and economics, availability heuristic, cost-benefit, balancing, cognitive

JEL Classification: K39

Accepted Paper Series