A Reply to Posner

In The First Amendment's Purpose,' 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"?