The value of economics in the context of free speech

Posted by Anton Hughes on Saturday, June 07, 2008 with No comments
Peter Hammer describes the value of economics in determining free speech issues as follows:
An economic evaluation of free speech must be met with mixed reviews. There is much that a proper view of economics can bring to this field of constitutional law. Economics can be useful when it is viewed as a science which examines the decisionmaking process, the study of optimization behavious subject to constraints. Economics cannot be helpful if it is viewed as a precise tool that can mechanically and independently determine the outcomes of complex problems. As a method, economics can lend valuable insight to the technical process of constitutional decisionmaking. In this capacity it can be used to assist in the framing of issues and in isolating the appropriate factors for judicial consideration. Economics is not helpful, however, in the inherently subjective process of weighing and quantifying competing concerns. It is wrong not to recognize this limitation, and it is dangerous to assume that difficult, value-laden decision areas in areas such as free speech can be decided mechanically by appealing to an economic formula. Difficult constitutional choices cannot be avoided by viewing first amendment issues through the lens of an economic perspective.

(Peter J. Hammer "Free Speech and the "Acid Bath": An Evaluation and Critique of Judge Richard Posner's Economic Interpretation of the First Amendment" (1988) 87(2) Michigan Law Review 499-536)

I think there is also much to be said for the limitations of economics in determining the appropriate levels of intellectual property protection. James Boyle also makes this precisely this point in relation to the gene patent debate.
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