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Can Economics Justify the Constitutional Guarantee of Freedom of Expression?

Published online by Cambridge University Press:  20 July 2015

Ian B. Lee
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The purpose of this article is to explore the resources available within the economic analysis of law for rationalizing the constitutional right to freedom of expression. I have sought to falsify the hypothesis that economics is incapable of supplying a rationale for the constitutional guarantee of freedom of expression. I have argued that, from an economic perspective, the guarantee may be understood as a device for the facilitation of political competition and the mitigation of the agency costs of government. Nevertheless, economics provides no support for the notion that the fact that an act is undertaken by a person in the exercise of her “autonomy” is a licence for that person to set back another individual’s welfare. This applies to expressive acts as it does to all other acts that produce external consequences. There might be good reasons to require each of us to suffer the negative consequences of other individuals' self-fulfillment, or to place the information marketplace as a whole (and not only that part which relates to the political marketplace) under judicial protection. However, any such reasons do not appear to sound in economics; they require other frameworks of analysis and evaluation.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 21 , Issue 2 , July 2008 , pp. 355 - 397
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Copyright © Canadian Journal of Law and Jurisprudence 2008

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References

The author thanks Heidi Libesman, Wayne Sumner and participants at the McGill-Queen's Junior Scholars' Conference for their comments, and Charlene Jones and Tim Barrett for research assistance.

1. Posner, Eric, “Strategies of Constitutional Scholarship” (2001) 26 Law & Soc. Inquiry 529 at 544.CrossRefGoogle Scholar

2. See, e.g., the epigraph to this article.

3. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

4. Coase, Ronald H., “The Market for Goods and the Market for Ideas” (1974) 64 Am. Econ. Rev. 384 Google Scholar; Coase, Ronald H., “Advertising and Free Speech” (1977) 6 J. Legal Stud. 1 [Coase, “Advertising”].CrossRefGoogle Scholar

5. Coase, “Advertising,” ibid. at 15 (“The market for ideas is the market in which the intellectual conducts his trade. The explanation of the paradox is self-interest and self-esteem. Self-esteem leads the intellectuals to magnify the importance of their own market. That others should be regulated seems natural, particularly as many of the intellectuals see themselves as doing the regulating. But self-interest combines with self-esteem to ensure that, while others are regulated, regulation should not apply to them.”).

6. Coase himself, however, denied that he was advocating greater regulation of the market for ideas: ibid. at 7 (“Experience with regulation in the market for goods suggests not the desirability of regulation in the market for ideas but the dangers of introducing regulation, anywhere.”).

7. Indeed, the next two sections discuss possible failures in the market for information and ideas. For a theoretical discussion of the conditions under which regulation of the market for ideas is desirable, see Breton, Albert & Wintrobe, Ronald, “Freedom of Speech Versus Regulation in Markets for Ideas” (1992) 17 J. Econ. Behav. & Org. 217 [Breton & Wintrobe]CrossRefGoogle Scholar. Breton and Wintrobe argue that the case for non-regulation is strongest in the market for political ideas. That is also the argument of this article.

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11. Cooter, supra note 8 at 313; Farber, supra note 8 at 563.

12. Farber, supra note 8 at 562-63; Posner, “Economic Perspective,” supra note 8 at 23.

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15. What follows differs somewhat from Rasmussen’s argument. Rasmussen argues that desecration is presumptively inefficient, since it is often engaged in for the purpose of reducing other people’s welfare, and that flags and other symbols are costly to produce, and like other costly goods, require property rights protection in order to be produced (Rasmussen, ibid. at 269).

16. The venerators would still face the problem of holding out. A transaction can still occur—the lion’s share of the gain will simply be appropriated by the holdouts. Admittedly, the need to bargain over the division of the gain would represent a transaction cost.

17. Rasmussen, supra note 14 at 269.

18. Ibid.

19. Cooter in fact resorts to the Miltonian assumption that market forces will weed out harmful ideas: supra note 8 at 324, 332.

20. The tension between free speech and both intellectual property and mandatory disclosure has not escaped the notice of commentators. See, e.g., Rubenfeld, Jed, “The Freedom of Imagination: Copyright’s Constitutionality” (2002) 112 Yale L.J. 1.CrossRefGoogle Scholar More generally, I observe that freedom of expression is a rule of government non-intervention in the market for ideas and information. It is odd that a market imperfection is invoked as a reason for the government not intervening in the market.

21. See Farber, supra note 8 at 568.

22. This point is also made by Josselin, Jean-Michel & Marciano, Alain, “Freedom of Speech in a Constitutional Political Economy Perspective” (2002) 29 J. Econ. Stud. 324 at 328 [Josselin & Marciano].CrossRefGoogle Scholar

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24. See Josselin & Marciano, supra note 22 at 324-25.

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27. See, e.g., Article 1 of the German Federal Constitution, declaring that “human dignity shall be inviolable.”

28. Griswold v. Connecticut, 381 U.S. 479 (1965) J, Douglas.Google Scholar

29. Declaration of Independence (U.S., 1776); Declaration of the Rights of Man (France, 1789) (setting forth the “natural, unalienable, and sacred rights of man”); Declaration of Human Rights, GA res. 217A (III), UN Doc A/810 (1948) at 71 (preamble referring to the “inherent dignity and of the equal and inalienable rights of all members of the human family”).

30. In this sense, “inalienable” does not mean non-waivable.

31. In this paragraph, “official” refers to anyone exercising public power, including legislators and judges.

32. Familiar paraphrase of Jackson J.’s dissenting opinion in Terminiello v. Chicago, 337 U.S. 1 at para. 37 (1949)Google ScholarPubMed (“if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”).

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34. As will be discussed shortly, this is not to say that constitutional drafters might not be justified in establishing a rule requiring decision-makers to act as if a particular set of interests were inviolable. Consequentialism would apply at the level of constitutional design: the desirability of the would be based on its beneficial and harmful consequences. Consequentialist drafters contemplating the inclusion of a rule making certain interests inviolable should not do so because they believe that the interests are intrinsically inviolable, but rather should weigh the consequences of designating them as such.

35. Section 4(1) of the Charter.

36. See Habermas, Jürgen, “Citizenship and National Identity: Some Reflections on the Future of Europe” (1992) 12 Praxis Int’l 1 Google Scholar (developing concept of “constitutional patriotism” as a substitute for ethnic nationalism in the unification of diverse societies).

37. There is also a possible preference-shifting function of constitutional rights. Non-unanimously-held values might be included in a constitution so as to encourage their broader adoption. It may be partly for this reason that some sought the recognition of the “Christian heritage” of Europe within the ill-fated Constitutional Treaty. In other words, the unifying function depends on values being widely shared, whereas the preference-shifting function is about using the constitution to make certain values more widely shared than they would otherwise be.

38. The value of rights may be subjective (individuals attach great value to them) or objective (regardless of whether individuals value them, they are valuable). See Raz, Joseph, “Free Expression and Personal Identification” (1991) 11 Oxford J. Legal Stud. 303 CrossRefGoogle Scholar (discussing the value of freedom of expression beyond the “rather small” value most people attach to their right to free expression). Regarding the notion that constitutional bills of rights direct judges to treat rights as especially valuable, see Meyerson, Denise, “Why Courts Should Not Balance Rights Against the Public Interest” (2007) 31 Melb. U. L. Rev. 801 at 811Google Scholar (judges should “assign a greater weight to rights and a lesser weight to the public interest than they would ordinarily think they deserve.”).

39. Sen, Amartya, “Rational Fools: A Critique of the Behavioral Foundations of Economic Theory” (1977) 6 Phil. & Pub. Aff. 317 [Sen]Google Scholar; consider also Buchanan & Tullock, supra note 10 at 34 (articulating assumption underlying economic model of politics that individuals may be “egoist or altruist or any combination thereof”).

40. See Simon, Herbert, “A Behavioral Model of Rational Choice” (1955) 64 Quart. J. Econ. 99 CrossRefGoogle Scholar; Jolls, Christine, Sunstein, Cass & Thaler, Richard, “A Behavioral Approach to Law and Economics” (1998) 50 Stan. L. Rev. 1471.CrossRefGoogle Scholar

41. See Mongin, Philippe, “A Concept of Progress for Normative Economics” (2006) 22 Econ. Philos. 19 at 37-38, 45CrossRefGoogle Scholar (welfare economists assume that “[s]ocial welfare in any circumstances is entirely determined by the data of individual welfare given these circumstances” at 45).

42. See Hausman, D. & McPherson, M.S., Economic Analysis and Moral Philosophy (Cambridge: Cambridge University Press, 1996) at 81 Google Scholar (discussing the distinction between objective and subjective theories of welfare).

43. The revealed preference assumption is not an essential feature of a subjective and individualistic conception of welfare. It is possible to have a subjective conception of individual welfare and to recognize that other subjective data in addition to the observation of an individual’s choices may provide information about her welfare: Lee, Ian, “Implications of Sen’s Concept of Commitment for the Economic Understanding of the Corporation” (2008) 21 Can. J. L. & Jur.Google Scholar

97. An example of subjective non-choice data about welfare includes information obtained from conversations with the individual about her welfare.

44. Hobbes, Thomas, Leviathan (1651) ch. XIIIGoogle Scholar. The causes of this war, according to Hobbes, would be competition for resources and the desire for glory.

45. See, e.g., Buchanan & Tullock, supra note 10 at ch. 5. Buchanan and Tullock describe an “organization” as a way of avoiding the external costs associated with uncoordinated individual action. Organization can be “voluntary” or “governmental.” Governmental action is warranted where its costs are less than the external costs that would be incurred in the absence of organization, and are also less than the costs of voluntary organization. In other words, government arises where cooperative interaction would be socially beneficial and where governmental interaction would economize on the costs of voluntary organization, i.e., on transaction costs.

46. Smith, Adam, An Inquiry into the Nature and Causes of the Wealth of Nations (1776), vol. 1, ch. 2 [Smith].Google Scholar

47. Riddell, W.C., “The Social Benefits of Education: New Evidence on an Old Question” in Iacobucci, F. & Tuohy, C., eds., Taking Public Universities Seriously (Toronto, ON: University of Toronto Press, 2004).Google Scholar

48. E.g., Gwartney, James et al., “The Scope of Government and the Wealth of Nations” (1998) 18 Cato J. 163 at 165Google Scholar (asserting that the “core functions” of government are “(1) activities that protect persons and their property from plunder, and (2) provision of a limited set of goods that for various reasons markets may find it difficult to provide”). Arguably, category two absorbs category one, as law and order is a public good: Mueller, Dennis C., Constitutional Democracy (Oxford: Oxford University Press, 1996) [Mueller] at 53.Google Scholar

49. For instance, as Coase famously showed, the internalization of negative externalities—another commonly recognized function of government—reduces to a question of transaction costs: Coase, Ronald, “The Problem of Social Cost” (1960) 3 J. L. & Econ. 1 CrossRefGoogle Scholar. The proposition in the accompanying text may be compared with Coase’s finding, in “The Nature of the Firm” (1937) 4 Economica 386 [Coase, “The Nature of the Firm”], that firms arise where the transaction costs associated with the market exceed the costs associated with centralized resource allocation by an entrepreneur (fiat), and that the scope of the firm is determined by the trade-off between transaction costs and governance costs.

50. See, e.g., Mueller supra note 48.

51. Calabresi, G., “The Pointlessness of Pareto: Carrying Coase Further” (1991) 100 Yale L.J. 1211.CrossRefGoogle Scholar

52. Non-consensual transfers initiated by an individual are called “theft.”

53. Discussion of a third possible qualification, namely rent-seeking costs, is deferred until the next section. See the text accompanying infra notes 70-79.

54. Hovenkamp, Herbert, “The Mind and Heart of Progressive Legal Thought,” (University of Iowa Presidential Lectures, delivered at the University of Iowa, 1995)Google Scholar, online: University of Iowa Presidential Lectures http://sdrc.lib.uiowa.edu/preslectures/hovenkamp95.

55. An example would be the capabilities approach advocated by Sen, Amartya, e.g., in On Economic Inequality (Oxford: Oxford University Press, 1997)Google Scholar. In a recent paper, Louis Kaplow, although objecting to Sen’s approach, does not argue against objective conceptions of “well-being”: Kaplow, Louis, “Primary Goods, Capabilities, … or Well-Being?” (2007)Google Scholar Harvard Law and Economics Discussion Paper No. 602, online: Social Science Research Network http://ssrn.com/abstract=1031302 at 22. Indeed, cost-benefit analysis would be impossible without an objective conception of well-being.

56. Kaplow, Louis & Shavell, Steven, Fairness Versus Welfare (Cambridge, MA: Harvard University Press, 2002) at 25, 28–32.Google Scholar

57. Sen, supra note 39.

58. Elster, Jon, Ulysses and the Sirens (Cambridge: Cambridge University Press, 1984) [Elster, Ulysses and the Sirens].Google Scholar

59. For a similar reason, Elster came to reject his previously-expressed view that constitutions should be understood as a pre-commitment device for polities. In reality, he argued, they were ways for some people to constrain other people. See Elster, Jon, Ulysses Unbound: Studies in Rationality, Precommitment and Constraints (Cambridge: Cambridge University Press, 2000) [Elster, Ulysses Unbound].CrossRefGoogle Scholar

60. For discussion of the respective costs of private and governmental decision-making, see Trebilcock, Michael & Iacobucci, Edward, “Privatization and Accountability” (2003) 116 Harv. L. Rev. 1422 [Trebilcock & Iacobucci].CrossRefGoogle Scholar

61. In the case of marketplace participants, economists typically take for granted that individuals know what they want (this is implied by the assumption that individuals pursue their objectives), and understand informational constraints as preventing individuals from knowing with certainty how a particular decision will affect the attainment of their objectives. In concrete terms, this can take the form of a consumer’s uncertainty as to the characteristics of a product that he or she is contemplating purchasing, or of the price and suitability of alternatives to that product. See Stigler, George J., “The Economics of Information” (1961) 69 J. Pol. Econ. 213 CrossRefGoogle Scholar; Akerlof, George A., “The Market for ‘Lemons’: Quality Uncertainty and the Market Mechanism” (1970) 84 Q. J. Econ. 488.CrossRefGoogle Scholar

62. Thus, informational deficiencies are a paradigmatic illustration of the type of transaction costs that, on an economic account, may be invoked as a justification for governmental intervention.

63. This influential view among economists is associated especially with Samuelson, Paul A., “The Pure Theory of Public Expenditure” (1954) 36 Rev. Econ. & Statistics 387 at 388-89CrossRefGoogle Scholar (“It is in the selfish interest of each person to give false signals to pretend to have less interest in a given collective activity than he really has.”).

64. Jensen, Michael C. & Meckling, William H., “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure” (1976) 3 J. Finan. Econ. 305 [Jensen & Meckling].CrossRefGoogle Scholar

65. Ibid. at 309.

66. Ibid. at 308.

67. See, e.g., Alchian, Armen A. & Demsetz, Harold, “Production, Information Costs, and Economic Organization” (1972) 62 Am. Econ. Rev. 777 Google Scholar; Jensen & Meckling, supra note 64; Easterbrook, Frank H. & Fischel, Daniel R., The Economic Structure of Corporate Law (Cambridge, MA: Harvard University Press, 1991) at 9–11 [Easterbrook & Fischel]Google Scholar.

68. Regarding the significance of commitment, see Akerlof, George A. & Kranton, Rachel E., “Identity and the Economics of Organizations” (2005) 19 J. Econ. Perspect. 9–32.CrossRefGoogle Scholar

69. See Trebilcock & Iacobucci, supra note 60 at 1426-29 (discussing the difficulties encountered by the state in incentivizing its employees).

70. See, e.g., Stigler, George, The Citizen and the State: Essays on Regulation (Chicago, IL: University of Chicago Press, 1975) [Stigler]Google Scholar; Krueger, Anne O., “The Political Economy of the Rent Seeking Society” (1974) 64 Am. Econ. Rev. 291 Google Scholar; Tullock, Gordon, “The Welfare Costs of the Tariffs, Monopolies and Theft” (1967) 5 Western Econ. J. 224 [Tullock].Google Scholar

71. Stigler, ibid. at 126-27.

72. Hartle, D.G., “The Theory of ‘Rent-Seeking’: Some Reflections” (1983) 16 Can. J. Econ. 539 at 540CrossRefGoogle Scholar (noting “the underlying distributive purpose of many and perhaps most public policies, whether or not stated or admitted.”).

73. The larger the group, however, the more difficult it is for the group to mobilize to try to obtain the benefit, since members of the group have an incentive to free ride on one another’s efforts: Olson, Mancur, The Logic of Collective Action (Cambridge: Harvard University Press, 1971).Google Scholar

74. Under non-competitive conditions, producers maximize their profits at a price higher than their marginal cost, even if it means selling fewer units than they would if they set the price at, or just above, their marginal cost.

75. Tullock, Gordon, “The Fundamentals of Rent-Seeking” (1998) 1:2 The Locke Luminary 2 Google Scholar, online: http://www.thelockeinstitute.org/journals/luminary_v1_n2_p2.html.

76. Ribstein, Larry, “Corporate Political Speech” (1992) 49 Wash. & Lee L. Rev. 109 at 153.Google Scholar

77. Tullock, supra note 70; Posner, Richard A., “The social costs of monopoly and regulation” (1975) 83 J. Pol. Econ. 807.CrossRefGoogle Scholar Moreover, theft is often treated as a case of rent-seeking, for example by Cowen, T. & Tabarrok, A., “The Opportunity Costs of Rent-Seeking” (1999) 17 J. Pub. Fin. & Pub. Choice 121 [Cowen & Tabarrok].Google Scholar

78. See Posner, Richard A., Economic Analysis of Law, 6th ed. (New York: Aspen Publishers, 2003) at 205, note 3.Google Scholar

79. Cowen & Tabarrok, supra note 77; Posner, ibid. at 205 (the owner and thief’s respective investments in “trying respectively to prevent and accomplish the transfer of the good [are] wasted from a social standpoint; this waste is the economic objection to theft”).

80. Compare Coase, “Nature of the Firm,” supra note 49 (describing scope of firms in terms of a division of decision-making between firm and marketplace, based on relative magnitude of governance and transaction costs).

81. See, e.g., Mueller, supra note 48 at 77-78. In the Canadian context, Jean Leclair has criticized what may be called a “functional” understanding of federalism: see Leclair, Jean, “The Supreme Court of Canada’s Understanding of Federalism: Efficiency at the Expense of Diversity” (2002-03) 28 Queen’s L.J. 411.Google Scholar

82. See also Schauer, Frederick, Free Speech: A Philosophical Enquiry (Cambridge: Cambridge University Press, 1982)Google Scholar [Schauer, Free Speech] at 11 (the freedom of speech “protects certain conduct not because it is self-regarding, but despite the fact that it is other-regarding” [emphasis in original]).

83. In not excluding from the cost-benefit calculus the offence caused by expressive activities, the economic approach to free speech differs from the conventional liberal approach. See Sumner, L. W., The Hateful and the Obscene (Toronto, ON: University of Toronto Press, 2004) [Sumner, Hateful] at 45–47 CrossRefGoogle Scholar (arguing that “moral distress” cannot be recognized as a harm without inviting “intolerable … intrusiveness into individuals’ personal lives”).

84. Sen, Amartya, “The Impossibility of a Paretian Liberal” (1970) 78 J. Pol. Econ. 152.CrossRefGoogle Scholar

85. Rasmussen, supra note 14 at 248.

86. Caplan, Bryan, The Myth of the Rational Voter: Why Democracies Choose Bad Policies (Princeton, NJ: Princeton University Press, 2007)Google Scholar (arguing that citizens systematically hold wrong opinions on public policy matters because the private cost of being wrong on such matters is low). See also Buchanan & Tullock, supra note 10.

87. When I refer to “unusual circumstances,” I have in mind societies where the fear of agency costs is so great that constitutional framers may rationally decide simply to rule out, categorically, certain types of governmental restriction on political expression. In practice, constitutional guarantees of free speech never take this form. Even the U.S. First Amendment, viewed by some as an absolute prohibition, is in fact formulated as a limitation on the powers of a single institution at one level of government (“Congress shall make no law …”). To the extent that a given constitutional right merely withdraws decision-making power from the ordinary political branches, rather than withdrawing a category of decisions from the public domain entirely, it is not consistent with the theory that the function of the right is to define a matter that lies outside the optimal domain of collective decision-making.

88. As previously noted (text accompanying note 69), much reliance is placed on officials’ internal motivations for loyal and diligent behaviour (pre-disposition and commitment) since external motivations operate less strongly.

89. See Cooter, supra note 8 at 312; Posner, Richard A., Law, Pragmatism and Democracy (Cambridge, MA: Harvard University Press, 2003) at 193 (describing “competitive democracy”).Google Scholar

90. A “rational” official chooses a level of diligent and loyal behavior x that maximizes U(x)=f(PBC(x)(1-D(x))), where PBC(x) is the private benefits of control achievable at level x, and D(x) is the probability that, at level x, the official’s lack of diligence and loyalty will be detected and result in her replacement by voters.

91. Charter, s. 3.

92. Charter, s. 2(d).

93. E.g., Schauer, Free Speech, supra note 82 at 35 (“speech relating to public affairs, and [especially] criticism of governmental officials and policies.”).

94. Ibid. at 36. Some articulations of this argument rest on a concept of democracy as popular selfgovernment (“government by the people”). Schauer’s formulation, in the accompanying quotation, is a case in point. See also Meiklejohn, Alexander, Free Speech and its Relation to SelfGovernment (New York:Harper, 1948)Google Scholar. It is worth noting a conceptual difference between the agency costs argument articulated here and the conventional philosophical argument. The agency costs argument abandons the fiction that the citizens are self-governing. Rather, they are under government. Viewing representative democracy as the political equivalent of the “separation of ownership and control” in widely-held corporations, the agency theorist asks what constitutional mechanisms exist to protect the citizens’ interests despite the impairment of their autonomy that comes from submitting to government.

95. Amar, Akhil Reed, The Bill of Rights: Creation and Reconstruction (New Haven, CT: Yale University Press, 1998) at 21 Google Scholar. Amar goes further, and argues that the Bill of Rights as a whole “was centrally concerned with controlling the ‘agency costs’ [of] representative government” (ibid. at xiii). See also Cass, Ronald A., “The Perils of Positive Thinking: Constitutional Interpretation and Negative First Amendment Theory” (1987) 34 UCLA L. Rev. 1405 at 1449Google Scholar. Daniel Farber questions the sufficiency of conflict of interest as a reason for protecting political speech. Farber notes, “[w]e do not necessarily disallow legislation whenever politicians have a conflict of interest, such as that in cases involving political gerrymandering and public funding for campaign expenses.” (Farber, supra note 8 at 564.) This objection would have greater force if the constitutional rule amounted to a categorical prohibition of restrictions on political speech. However, it does not have much bite against a rule that, like s. 2(b) of the Charter, explicitly stops short of enacting such a prohibition and, instead, merely withholds from the government the power to restrict speech without a judicial verification that the restriction is reasonable.

96. [1938] S.C.R. 100.

97. Ibid. at 133.

98. Ibid. at 145-46.

99. [1953] 2 S.C.R. 299.

lOO. Ibid. at 332.

101. This is obviously a simplification. The description of the trade-off would be slightly less oversimplified if it were also noted that another advantage of increasing the size of the required coalition is that the possibility of voting cycles decreases as required majority increases. As well, under a first-past-the-post electoral system, as is employed in Canada, a political party can acquire a majority of the seats in the elected house despite receiving only a plurality of votes.

102. This is one way of understanding the perennial debate within the European Union surrounding the voting rule in the Council. On the one hand, it is understood that higher qualified majority thresholds increase the risk of legislative paralysis; on the other hand, some Member State governments are willing to accept paralysis rather than permit decisions affecting their interests to be made over their objections. See Zemanek, J., “Voting Rights in the Councils: A Compromise, No Revolution” (2005) 1 Eur. J. Const. L. 62.Google Scholar

103. This is Mueller’s conceptualization of constitutional rights: see supra note 48 at 211.

104. The latter version is more consistent with the practice of rights protection in Canada. The government is permitted to infringe the freedom of expression provided that the harm entailed by the infringement is outweighed by a sufficiently important public benefit that cannot adequately be achieved by less infringing means.

105. Rights held by the minority in 1867 can be modified only by a constitutional amendment, a procedure that requires resolutions of the Senate and House of Commons, and until 1982 also required a legislative act of the U.K. Parliament. Provincial impairment of rights acquired subsequently to 1982 is subject to a right of appeal to the Governor in Council.

106. Charter, s. 23(3)(a).

107. See, e.g., Mahe v. Alberta, [1990] 1 S.C.R. 342 at paras. 47-51 (describing s. 23(3) in terms of a “sliding scale of requirements, … depending on the numbers of students”).

108. Delgamuukw v. B.C., [1997] 3 S.C.R. 1010 at para. 178Google Scholar; Simon v. R., [1985] 2 S.C.R. 387 at paras. 50-51Google Scholar. But see infra note 111, regarding the effect of s. 88 of the Indian Act.

109. R. v. Sparrow, [1990] 1 S.C.R. 1075 at para. 62 [Sparrow].Google Scholar

110. Ibid. at paras. 71, 82.

111. The confidence of aboriginal peoples in the federal political branches as a reliable guardian of their interests was shaken by, among other events, the enactment of s. 88 of the Indian Act in 1951 (R.S. 1985, c. 1-5.) and the issuance of the Statement of the Government of Canada on Indian Policy, 1969 (Ottawa, ON: Queen’s Printer, 1969) [the “White Paper”]. Section 88 confers legislative force, with respect to aboriginal people, upon all provincial laws of general application, subject only to the provisions of any aboriginal treaty. In essence, s. 88 authorizes provinces to infringe (non-treaty) aboriginal rights, despite s. 91(24) of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No.5. In its White Paper, the federal gov-ernment announced the intention to phase out treaty rights as well. Although the White Paper was eventually revoked, it is understandable that s. 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11., included in part in an effort to obtain the support of the aboriginal political leadership for the repatriation project, binds the federal government as well as the provinces.

112. See, e.g., Rasmussen, supra note 14 at 380 (denying that speakers’ interests are intrinsically “privileged”).

113. Mueller, supra note 48 at 214.

114. Rather, it may reflect the tolerant outlook of the commentator.

115. See, e.g., the Supreme Court’s divided judgment in Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 Google Scholar. The Court held that a prohibition against erecting structures of any kind on an apartment balcony infringed the appellants’ freedom of religion by preventing them from constructing a sukkah on their balconies in observance of the Jewish festival of Sukkot. Given that the building’s management had offered, as an accommodation, to permit the construction of a “communal sukkah” in the garden of the building, four members of the Court believed the burden on freedom of religion was a mere “inconvenience” (para. 162, per Bastarache J.) whereas five members believed it to be a substantial interference with religious observance (para. 77, per Iacobucci J.).

116. Elster, Ulysses Unbound, supra note 59 at 104; Elster Ulysses and the Sirens, supra note 58 at 36-40. See also Ignatieff, Michael, The Lesser Evil: Political Ethics in an Age of Terror (Edinburgh: Edinburgh University Press, 2004) at 31.CrossRefGoogle Scholar

117. Compare Bickel, Alexander M., The Least Dangerous Branch: The Supreme Court at the Bar of Politics (New Haven, CT: Yale University Press, 1986) at 24–26 Google Scholar (“When the pressure for immediate results is strong enough and emotions ride high enough, [legislators] will ordinarily prefer to act on expediency rather than take the long view. … [Courts can] appeal to men’s better natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and cry. …”).

118. See Waldron, Jeremy, “The Core of the Case against Judicial Review” (2006) 115 Yale L.J. 1346 at 1393-94.CrossRefGoogle Scholar

119. Posner makes the related suggestion that the toleration of offence may be an important mechanism of “social progress,” as the feeling of offence “may be the beginning of doubt and may lead eventually to salutary change”: Posner, Frontiers of Legal Theory, supra note 13 at 78. To the extent that Posner’s argument relies on concepts of “progress” and of when change is “salutary” (that is to say, when the congeniality of the change to a future generation outweighs the distress it causes to the present generation), it depends on value judgments alien to economics. It is also unclear why the present generation and its political representatives are incapable of weighing the distress caused by speech against the possibility that a future generation might judge our distress to have been unfounded.

120. The Charter applies to both governmental and legislative acts: s. 32(1). For convenience, I use the term “law” to describe any such act.

121. Section 2(b) reads as follows: “Everyone has … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.” In what follows, I am concerned only with the freedom of expression.

122. [1989] 1 S.C.R. 927 [Irwin Toy],

123. Argument described and rejected in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at para. 51 [Ford]Google Scholar, citing Re Klein and Law Society of Upper Canada (1985) 16 D.L.R. (4th) 489 (Div. Ct.).

124. Argument described and rejected in R. v. Keegstra, [1990] 3 S.C.R. 697 [Keegstra].Google Scholar

125. Argument accepted by the Manitoba Court of Appeal in R. v. Butler (1990) 60 C.C.C. (3d) 219 Google Scholar, [1991] 1 W.W.R. 97, but rejected by the Supreme Court in R. v. Butler, [1992] 1 S.C.R. 452 [Butler (S.C.C.)].Google Scholar

126. Ford, supra note 123 at para. 59.

127. Keegstra, supra note 124 at paras. 37-44.

128. Butler (S.C.C.), supra note 125 at para. 74.

129. More specifically, the Oakes framework requires that the law pursue an objective that relates to “concerns that are pressing and substantial in a free and democratic society”; the restriction of rights must be “rationally connected” with the objective, which is to say that it must advance the objective and not be unfair or arbitrary; the law must “minimally impair” the right, which is to say that less impairing measures would not achieve the objective as well; and the deleterious effect of the law on rights must not be out of proportion to the contribution of the law towards the achievement of the objective: R. v. Oakes, [1986] 1 S.C.R. 103 [Oakes]Google Scholar. For a recent retrospective on the judicial application of the Oakes framework, see Sujit Choudhry, “So What is the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the Canadian Charter’s Section 1” (2006) 34 S.Ct.L.Rev. (2d) 501 [Choudhry].

130. This is a generalization. Exceptions include R. v. Zundel, [1992] 2 S.C.R. 731 Google Scholar, and Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326.Google Scholar

131. RJR-MacDonaldInc. v. Canada (Attorney General) [1995] 3 S.C.R. 199 [RJR-MacDonald]Google Scholar (see the reasons of La Forest J. and Iacobucci J.); Keegstra, supra note 124; Butler (S.C.C.), supra note 125; Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), [1990] 1 S.C.R. 1123.

132. For example, Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 [Rocket]Google Scholar (restrictions on expression of this kind might be easier to justify than other infringements of s. 2(b)); RJR-MacDonald, ibid.

133. Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827 Google Scholar, 2004 SCC 33 [Harper] at para. 87 (regulation of election spending).

134. Choudhry, supra note 129 at 525.

135. Sumner, Hateful, supra note 83 at 85.

136. Ibid.

137. The adverb “directly” reflects the fact that, under Irwin Toy, a law that does not have its purpose to prevent the conveyance of a message will infringe s. 2(b) by reason of its incidental effect on communication only if the latter activity “relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing”: Irwin Toy, supra note 122 at para. 54.

138. Admittedly, the implementation of this principle entails a delicate line-drawing exercise, in particular as to (a) whether indirect as well as direct restrictions should be covered, and (b) what information is relevant to the formation of opinions on public policy matters.

139. As Schauer observes,“[w]ere every such instance of communication control to be required to satisfy the ‘demonstrably justified’ standard, s. 2(b) would evolve into the master rule for testing the constitutionality of virtually all legislation and virtually all administrative regulation”: Schauer, Frederick, “Expression and Its Consequences” (2007) 57 U.T.L.J. 705 at 712 [Schauer, “Consequences”]CrossRefGoogle Scholar. See also Schauer, Free Speech, supra note 82 at 100-01, providing examples of communicative acts that “have nothing to do with what the concept of free speech is all about.”

140. For example, Sumner, L.W., “Freedom of Commercial Expression [book review]” (2005) 35 Can. J. Phil. 623 at 634CrossRefGoogle Scholar; Sharpe, Robert J., “Commercial Expression and the Charter” (1987) 37 U.T.L. J. 229 at 237.CrossRefGoogle Scholar

141. Irwin Toy, supra note 122 at paras. 56-57.

142. Ford, supra note 123 at para. 54.

143. Rocket, supra note 132 at para. 33. See also the reasons of La Forest and Iacobucci JJ. in RJR. MacDonald, supra note 131 at paras. 75, 189.

144. Schauer, “Consequences,” supra note 139 at 714 (“[a]lmost all commercial activity … involves communication …”).

145. Corporate law theorists refer to the corporation as a “nexus of contracts”: e.g., Easterbrook & Fischel, supra note 67 at 12.

146. Neuborne, Burt, “The First Amendment and Government Regulation of Capital Markets” (1989) 55 Brook. L. Rev. 5 at 37.Google Scholar

147. See Posner, Frontiers of Legal Theory, supra note 13 at 85 (“It is doubtful that commercial speech should get any greater constitutional protection than commercial activity generally.”).

148. Butler (S.C.C.), supra note 125; Schauer, Free Speech, supra note 82 at 181-84.

149. Ibid. at paras. 66, 74.

150. Ibid. at para. 81. This is a difference between the economic approach and, for example, the consequentialism of John Stuart Mill. See Sumner, Hateful, supra note 83 at 50-51.

151. Butler (S.C.C.), supra note 125 at para. 101.

152. As a legal matter, the outcome recommended here was not available to the Supreme Court in Butler. The Court was, of course, bound to follow its own holding in Irwin Toy that any activity “conveying a meaning” was “expression,” and that any law regulating such an activity infringed s. 2(b) and was required to meet the standard of justification under s. 1.

153. See Sumner, Hateful, supra note 83 at 127 (describing pornography as “both a product … and a system of production”); Farber, supra note 8 at 565 (comparing pornography to “an ordinary consumer good”).

154. Kaplow & Shavell, supra note 56 at 21.

155. Butler (S.C.C.), supra note 125 at paras. 80-82.

156. Keegstra, supra note 124 at para. 35. See also Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at para. 29 Taylor.Google Scholar

157. Keegstra, supra note 124 at para. 95. See also Taylor, ibid. at para. 73.

158. Keegstra, ibid. See also Taylor, ibid. at para. 74.

159. Keegstra, ibid. at para. 136.

160. Taylor, supra note 156.

161. Keegstra, supra note 124 at para. 35.

162. Keegstra, ibid. at para. 157.

163. Sumner engages in a careful analysis of these costs and benefits in Sumner, Hateful, supra note 83.

164. An analogy may be made to corporate governance. Corporate directors are held to have discharged their oversight responsibility if they rely in good faith upon the opinions of experts: e.g., Canada Business Corporations Act, R.S. 1985, c. C-44, s. 123(5). This is not deference to authority (experts hold no legal mandate or mandate from the shareholders) but reliance on expertise.

165. Canada Elections Act, S.C. 2000, s.9, s. 350(1).

166. Harper, supra note 133.

167. Harper, ibid. at para. 88. Even the dissenting judges “accord[ed] Parliament a healthy measure of deference” (para. 39). See also para. 111, in which the majority quotes with approval from the dissent in the Court of Appeal: “[t]he Court should not substitute judicial opinion for legislative choice in the face of a genuine and reasonable attempt to balance the fundamental value of freedom of expression against the need for fairness in the electoral process.” More recently, in R. v. Bryan, [2007] S.C.J. No. 12Google ScholarPubMed, the Court repeated at para. 9 that “courts ought to take a natural attitude of deference toward Parliament when dealing with election laws” (para. 9).

168. Harper, supra note 133 at para. 118.

169. For a similar view, see Dawood, Y., “Democracy, Power, and the Supreme Court: Campaign Finance Reform in Comparative Context” (2006) 4 Int’l. J. Con. Law 269 at 292.Google Scholar

170. See, e.g., Harper, supra note 133 at para. 111.

171. See Posner, “Economic Perspective,” supra note 8 at 23 (“economists don’t understand why people vote”).

172. Smith, supra note 46 at vol. I, p. 13.

173. Federal government expenditures on advertising were as follows: $111-million in 2002-2003; $69.8-million in 2003-2004; $49.5-million in 2004-2005; and $41.3 million in 2005-2006. (Public Works and Government Services Canada, Sustained Commitment: Annual Report on Government of Canada Advertising Activities 2005-06, online: Government Advertising, http://www.tpsgc-pwgsc.gc.ca/adv/files/raar05-06-e.pdf at 6).

174. Ibid. at 7.

175. Harper, supra note 133 at para. 4.

176. Ibid. at para. 72.

177. Ibid. That said, Kathleen Sullivan has problematized this ground for limiting political spending, arguing that

the concept of ‘distortion’ assumes a baseline of “undistorted” voter views and preferences. But whether any such thing exists exogenously to political campaigns is unclear. Popular attitudes about public policy do not exist in nature, but are formed largely in response to cues from political candidates and party leaders. Sullivan, Kathleen M., “Political Money and Freedom of Speech” (1997) 30 U.C. Davis L. Rev. 663 at 677.Google Scholar

178. McConnell v. FEC, 540 U.S. 93 at 153 (2003)Google Scholar (discussing the “danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.”).

179. See Section I-D, above.

180. See Section II-C-3, above.

181. See Section II-C-4, above.

182. See Farber, supra note 8 (“free speech without romance”).

183. I am conscious of the fact that such a claim may be essential to an account of, for instance, artistic freedom.

184. My investigation of the possibilities of an economic approach to the free speech guarantee should not be understood as denying the existence or soundness of other approaches, including those based on a deontological theory of rights.