Information Libertarianism

63 Pages Posted: 3 Mar 2016 Last revised: 31 Mar 2016

Jane R. Bambauer

University of Arizona - James E. Rogers College of Law

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law

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Date Written: March 2, 2016

Abstract

Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing government to employ more direct regulations with fewer collateral consequences. Even an expansive First Amendment is compatible with the regulatory state, rather than being inherently libertarian. Normatively, courts should be skeptical when the state tries to design socially-beneficial censorship.

This Article advances a structural theory that complements classic First Amendment rationales, arguing that information libertarianism has virtues that transcend political ideology. Regulating information is peculiarly difficult to do well. Cognitive biases cause regulators to systematically overstate risks of speech and to discount its benefits. Speech is strong in its capacity to change behavior, yet politically weak. It is a popular scapegoat for larger societal problems and an attractive tool for rent-seeking interest groups. Collective action, public choice, and government entrenchment problems arise frequently. First Amendment safeguards provide a vital counterpressure. Information libertarianism encourages government to regulate conduct directly because when the state censors communication, the results are often counterproductive. A robust First Amendment deserves support regardless of ideology.

Keywords: free speech, First Amendment, information law, intellectual property, IP, commercial speech, public choice, privacy, Lochner, collective action, autonomy

Suggested Citation

Bambauer, Jane R. and Bambauer, Derek E., Information Libertarianism (March 2, 2016). California Law Review, Vol. 105, 2017; Arizona Legal Studies Discussion Paper No. 16-07. Available at SSRN: https://ssrn.com/abstract=2741139

Jane R. Yakowitz Bambauer (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

Derek E. Bambauer

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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