The Inherent Structure of Free Speech Law
95 Pages Posted: 25 Jan 2010
To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech, or restricts expression in managing an internal governmental function; second, government regulation is subject to the Free Speech Clause only if it targets communication; and, third, government regulation targeting communication is constitutional if it survives a constrained cost-benefit analysis. We first set forth our general theory and provide examples of its explanatory power. We then argue that our framework finds confirmation in the works of three renowned scholars: Dean Robert Post of Yale Law School on role of government, Professor Jed Rubenfeld of Yale Law School on the target of government regulation and the constraints on balancing, and Judge Richard Posner on cost-benefit analysis. The work of these scholars supports our position in two ways: first, each agrees with part of our framework; and, second, the writings of each are unpersuasive to the extent they are at odds with our rational reconstruction of free speech law.
Keywords: free speech, first amendment, government regulation, constrained cost-benefit analysis
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