Chapter 6: Artistic Freedom
Michael Rushton The economic analysis of freedom of expression has primarily developed through the ‘law and economics’ tradition that plays down any consideration of abstract rights (‘nonsense upon stilts’) and instead looks for legal frameworks that maximize aggregate wealth, broadly defined. Richard Posner (1986) provides a systematic approach to freedom of expression based on a cost–benefit framework first articulated by Judge Learned Hand in United States v. Dennis (183 F.2d 201 (2d Cir. 1950)). By this model restriction of freedom of expression is justified when V + E < PL / (1+i)n where V is the social loss from suppressing valuable information, E is the legal-error cost of trying to distinguish which expression is valuable and which is not, P is the probability that harm will occur if the expression is allowed, L is the cost if the harm occurs, i is the discount rate, and n is the amount of time between potentially harmful expression and the occurrence of the loss resulting from it. The left-hand side of the inequality is the cost of suppressing expression, and the right-hand side is the probable cost if the expression is allowed. We can observe Posner’s application of the economic approach in his rulings as Judge on the United States Court of Appeals for the Seventh Circuit. In Miller v. Civil City of South Bend (904 F.2d 1081 (7th Cir. 1990)), Posner ruled that a municipal ordinance banning nude dancing should not be allowed, on the grounds that the harm of...
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