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Law, Economics, and Morality$
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Eyal Zamir and Barak Medina

Print publication date: 2010

Print ISBN-13: 9780195372168

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195372168.001.0001

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Freedom of Speech

Freedom of Speech

(p.177) seven Freedom of Speech
Law, Economics, and Morality



Oxford University Press

This chapter discusses freedom of speech. It briefly describes current constitutional protection of this freedom and surveys its standard economic analysis. It then introduces the deontological constraint against curtailing free speech and analyzes in some detail the normative judgments involved in conducting a constrained cost-benefit analysis of speech regulation. As to calculating the benefit of speech regulation — which is tantamount to calculating the speech's expected harm — it examines the desirability of excluding, or radically discounting, various types of harms, such as chronologically-remote and low-probability harms, small harms, harms brought about through rational persuasion, and mere offensiveness. Various ways of formalizing such excluders and combining them are examined. The chapter then analyzes the threshold that has to be met to justify speech regulation, including its shape, the setting of different thresholds for content-based and for content-neutral regulation, and different thresholds for different categories of speech.

Keywords:   freedom of speech, first amendment, hate speech, marketplace of ideas, present danger, incitement, probability threshold, economic analysis of freedom of speech

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