Joshua P. Davis and Joshua D. Rosenberg (University of San Francisco – School of Law and University of San Francisco School of Law) have posted The Inherent Structure of Free Speech Law on SSRN. Here is the abstract:
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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.
A very interesting piece. The most controversial piece of this is surely the claim that constrained cost-benefit analysis can do the necessary explanatory work (explain the structure of free speech doctrine and the pattern of decisions) without ad hocery (manipulating the cost-benefit analysis after the fact to fit the pattern). The difficulty with "constrained" and "pragmatic" cost-benefit analysis in this regard is that it is difficult to discern what would and wouldn't count as a counterexample.
My own take on the structure of free speech doctrine was outlined in Freedom of Communicative Action. Here is one difference in the two approaches. Davis and Rosenberg see the doctrine that fraud is not protected by the freedom of speech as expressing implicit cost-benefit analysis. This does not seem plausible to me–because the general understanding is that fraud is altogether outside free speech protection and would not be protected–even if it were to turn out that the costs of prohibiting fraud exceeded the benefits. (You can specify the hypothetical in various ways, e.g,, stipulate that the legislature itself acknowledge this.) My position is that the Habermasian distinction between "strategic action" and "communicative action" accounts for our intuition that economic fraud is entirely outside the animating principle of the freedom of speech.
Interesting and recommended.