A Reply to Posner, 54 Stanford Law Review 753 (2002)
In The First Amendment's Purpose, I criticized the cost-benefit approach to free speech, of which Richard Posner has been a leading advocate. 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." Or, in another formulation: "[S]peech should be allowed if but only if its benefits equal or exceed its costs."
Date of Authorship for this Version
Rubenfeld, Jed, "A Reply to Posner" (2002). Faculty Scholarship Series. Paper 4177.