64 Pages Posted: 30 Mar 2016 Last revised: 5 Aug 2016
Date Written: March 28, 2016
EXTENDED ABSTRACT FOR TPRC AUDIENCE:
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. Implicit in every theory of free speech is a quintessentially libertarian insight: When the state censors information, the results are usually bad. This Article presents a modern case for skepticism. We explain why regulating information is likely to be deceptively difficult, and we present the available evidence that, while incomplete, bears out the theory.
Speech marks the beginning of things. Its harms, like its benefits, are inchoate. A wealth of behavioral research has shown that people anticipate serious risks from speech, and that those risks rarely materialize. Countervailing benefits, by contrast, are routinely discounted.
These phantom harms and ignored benefits have a magnetic pull for corrupt and blundering regulation. Speech regulations seethe with public choice and collective action problems. The speculative risks of speech can mobilize the democratic process into regulation by those who have something concrete to lose, even when risks prove illusory. More often, “risks” of speech to the politically connected are actually benefits to their competitors and to the public. But the development of those benefits is just unpredictable enough that potential political opponents will not be sufficiently invested in the enterprise. Consequently, speech regulations can be exploited to dispose of information that challenges entrenched interests and to kill nascent ideas. Worse yet, government can employ speech regulation to maintain or expand its powers. Agencies can and often do censor speech to achieve regulatory ends that they could not achieve directly, either because direct regulation is politically impracticable or forbidden by other law.
All of these troubles occur in regulatory contexts other than speech, of course, but they are particularly attracted to censorship. Because the beneficiaries of speech are diffuse and overly fearful of its dangers, speech is politically weak before it is strong. If caught early enough, disfavored speech can be quashed before it changes preferences and political will. The First Amendment provides structural counterbalancing. It instructs courts to harbor a healthy skepticism about the threats regulators forecast to justify censorship.
For these reasons, this Article argues that libertarianism is wise in the context of speech. It explains why information libertarianism improves governing no matter what the democratic goals may be. Info-libertarianism is in this sense a hard center for libertarian political theory. But this approach does not require adherence to other forms of libertarianism. In fact, it often dis-serves them. Info-libertarianism as defined here invites the government to regulate directly, by imposing restrictions or obligations on conduct. Direct regulations are perfectly acceptable for information libertarianism even if repulsive to libertarianism writ large. This is because the unique properties of information apply, obviously, only to information. A direct regulation imposing significant restrictions on trade and on people may have many problems, but it is tailored quite transparently to physical or transactional effects. These burdens are felt directly. Such rules are less likely to distort democratic debate or to corrupt development of new ideas.
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.
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