I’ve just posted an essay on ssrn that explores the economics of speech and the First Amendment. (The abstract is below the fold.) The essay is meant to be a work in progress, an exploratory essay, and potentially a seed for future work. [Do people still use ssrn for rough works in progress? I hope so.] I welcome comments and criticisms.
Many know the “marketplace of ideas” as a metaphor. Yet, economics may help explain speech and the First Amendment in more than a metaphoric way.
This essay, written for the Law in a Networked World conference hosted by the University of Chicago Legal Forum, explores how the First Amendment may operate to sustain a spillover rich networked environment. The essay focuses on (i) the economics of speech externalities and (ii) the functional role of the First Amendment in constraining the government’s ability to force or enable actors to internalize externalities associated with their speech. When viewed from an economic perspective, the First Amendment functions as a broad (though not absolute) restriction on the government’s choice of actions or interventions with respect to the speech market/environment. The essay suggests that the First Amendment promotes spillovers (positive externalities) and functions more broadly as an institution that sustains a spillover-rich cultural-intellectual environment.
Additional notes: The essay will be published in the University of Chicago Legal Forum in 2008 (in March, I suspect). I may pursue a longer article developing the ideas more fully and welcome thoughts on that as well. I should note that the essay is not intended as commentary on current doctrinal specifics; such commentary may be worth developing in later drafts or future work, but at this stage, the essay takes a more holistic view of the First Amendment and our speech environment.