A reply to Posner.

• Author: Rubenfeld, Jed
• Position: Response to article by Richard Posner on p. 737 of this issue

In The First Amendment's Purpose, (1) I criticized the cost-benefit approach to free speech, of which Richard Posner has been a leading advocate. (2) On the cost-benefit view (or at least Posner's view of that view), speech can be prohibited when "in American society its harmful consequences are thought to outweigh its expressive value." (3) Or, in another formulation: "[S]peech should be allowed if but only if its benefits equal or exceed its costs." (4)

In a sense, stating these formulations should be sufficient to refute them. After all, from the cost-benefit viewpoint, all activity "should be allowed if but only if its benefits equal or exceed its costs." In other words, the cost-benefit approach to free speech holds that individuals have no greater freedom to speak than to engage in any other activity. Which is to say, in an important sense, that there is no freedom of speech at all--no special, constitutional freedom to speak that is different from and greater than the freedom to do anything else.

Nevertheless, cost-benefit notions, together with their cousin, the "balancing test," are legion in First Amendment law today. (Example: Fort Lauderdale can ban begging on its beach and boardwalk because this "speech," although "entitled to First Amendment protection," "adversely impacts tourism" and interferes with "a safe, pleasant environment." (5)) This way of thinking seems natural to a lot of people, even unavoidable. Don't we all know that the freedom of speech is not "absolute," that it must be "weighed" against other "interests"?

In fact, cost-benefit "reasoning" in free speech law is unnecessary and unacceptable--or so I tried to show. It turns judges into legislators, evaluating pure policy matters under the guise of constitutional review. Worse, it betrays fundamental First Amendment commitments.

Whenever a majority wants to abridge the freedom of speech--let's say, hypothetically, by banning the teaching of Islam--we can be pretty sure that "in American society the harmful consequences" of the speech "are thought to outweigh its expressive value." Moreover, perhaps the costs of the speech do outweigh its benefits. The teaching of Islam today might well offend and alarm a hundred million people; by contrast, it might benefit only a relatively small minority. If such costs and benefits can intelligibly be "weighed" at all, the former may exceed the latter; at a minimum, we can stipulate hypothetically that the costs do in fact exceed the benefits. In such circumstances, cost-benefit analysis tells us that the speech is properly prohibited.

In place of such balancing, I argued that judges ought to ask and historically have asked, much more categorically, whether the government has sought to punish the expression of opinion or to further other objectives impermissible under the First Amendment. Responding to my article, Posner defends the cost-benefit approach to free speech and takes a few shots at my alternative, purpose-based account. This reply replies to Posner's reply.

A confession: I am a die-hard Posner admirer. His concurrence, for example, in the Barnes litigation, however wrong I regard it on certain important points, is in my judgment one of the finer First Amendment opinions written since the Second World War. (6) Posner's academic work, however, is another story. It is increasingly filled with hair-raising propositions that even those who find Posner basically congenial would ridicule if other judges asserted them.

Here are three examples, taken from his response to my article:

1. Government may prohibit dissenting political opinions when the country "feels" (the word is Posner's) that such opinions are dangerous. (7)

2. There is no such thing as "`reality'" (the internal quotation marks are Posner's) in the sense that we commonsensically suppose. When we evaluate any proposition--for example, "O.J. Simpson killed his wife"--we should not think of ourselves as trying to get "`reality'" right or wrong. Instead we should adopt the belief that produces the most desirable consequences. "[A] proposition should be tested not by its correspondence with `reality' but by the consequences of believing or disbelieving it." (8)

3. An American judge has no duty to abide by Supreme Court precedent or even the text of the Constitution. Readers will think this cannot be Posner's view; they will think I must be distorting his text. Here is what he says: "The point is not that the judge has some kind of moral or even political duty to abide by constitutional or statutory text, or by precedent; that would be formalism." (9)

A judicial nominee who confessed to these views at a confirmation hearing would, I hope and expect, be rejected. A "liberal" judge who took position (2) or (3)--for example, to support rights of abortion--would be ridiculed by "conservative" academics, newspapers and talk show hosts around the country. In fact, if any sitting judge other than Richard Posner took these positions in print, there would be genuine reason to fear for his judicial competence.

Fortunately, in Posner's case, we can be confident that the judge is too smart actually to believe what he's saying, or at any rate too pragmatic to act on it. In what follows, I will try to show how positions (1) through (3), as well as other astonishing arguments that appear in Posner's response, confirm everything that is wrong with the cost-benefit approach. I will also say a few words in defense of my purposivist account of free speech.

1. FEELING DANGEROUS

   Proponents of First Amendment balancing begin with the proposition that speech can be prohibited, as current doctrine puts it, if it threatens compelling state interests. The usual example offered to prove this point is incitement law. Preventing violence is a compelling state interest; that is why (the argument goes) incitement can be made a criminal offense, even if the inciter is doing no more than making fiery statements of a political opinion. Incitement law is thus supposed to demonstrate that the freedom of speech is not "absolute," but must give way when its costs are high enough.

   Taking this logic seriously, however, produces a First Amendment with very little spine when it comes to protecting "seditious" or "subversive" speech. Sedition and subversion laws are typically enacted in turbulent times when such speech really might have a high probability of leading to violence. In addition, in just these circumstances, seditious and subversive speech will seem very "low in value," while also highly offensive and alarming to a great many people--costs that a consistent cost-benefit judge would have to take into account as well. As a result, nothing could be easier to justify, from a cost-benefit view, than a prosecution for maligning the President in 1798, opposing war in 1918, demonstrating for civil rights in 1968, or teaching Islam today.

   Many proponents of "balancing" would try to dodge this conclusion. Posner, with characteristic candor and consistency, does not. Will the cost-benefit judge say that mere offense is not a legally cognizable harm? Not Posner: "People are often deeply offended by hearing their religious, moral, political, or even aesthetic beliefs challenged; and offense is a cost." (10) Will the cost-benefit judge say that what counts is the value of the speech "category" (e.g., "political speech"), not the particular speech acts, in order to circumvent the problem that some seditious or subversive political opinions may be "low in value"? Not Posner: "There are indeed valueless, noxious, and dangerous opinions," (11) and the attempt to avoid this problem by focusing on a speech category "fails, because it confuses total with marginal benefits." (12) Might a consistent cost-benefit judge be obliged to uphold the suppression of religious or political dissent just because "the country feels endangered" by such dissent? Most balancers would surely say no. Not Posner: "When the country feels very safe," judges and professors can "plume themselves on their fearless devotion to freedom of speech," but

   they are likely to change their tune when next the country feels endangered. The word 'feels' is important here. The country may have exaggerated the danger that Communism posed [in the 1950s]. But the fear of Communism was a brute fact that judges who wanted to preserve their power had to consider. (13) As a purely descriptive claim, this passage is trivial. Of course some judges and professors "may" turn coward when they have to put up or shut up. Of course "the fear of Communism was a brute fact" in the 1950s, as was McCarthyism, which judges "who wanted to preserve their power had to consider." But Posner does not mean only to state facts we already know. He may not want to say so unequivocally, but he favors First Amendment cowardice.

   Posner observes without qualm that cost-benefit thinking "endorses what may seem an unbecomingly timid judicial response" whenever there is "public concern with offensive or dangerous speech." (14) Why? Because judges knuckling under to McCarthyism is not merely a fact of life for Posner. Such judges may be engaging in proper cost-benefit analysis. Remember: Expression is prohibitable when "in American society its harmful consequences are thought to outweigh its benefits." (15)

   Consider that...