Free Speech as Risk Analysis: Heuristics, Biases, and Institutions in the First Amendment

Abstract

What does behavioral analysis of law have to offer First Amendment doctrine? This Article offers some tentative answers to that question. A great deal of First Amendment law asks whether the risk of harm stemming from particular speech acts can justify the regulation of that speech. We may, in short, think of First Amendment law as a species of risk analysis. Looking at free speech issues through the lens of behavioral analysis of law may help us to better understand, evaluate and improve the courts' approach to recurring problems in the First Amendment.

This Article focuses on two such issues. First, it examines the development of First Amendment doctrine relating to illegal advocacy, from its modern roots in the "clear and present danger" test to the emergence of the currently prevailing test in Brandenburg v. Ohio. Viewed from the vantage point of behavioral analysis of law, this development is a success story. Illegal advocacy doctrine initially required triers of fact to make a probabilistic assessment of the risk of harm flowing from speech, but failed to account for cognitive shortcomings that could lead triers to overestimate the actual likelihood of harm. An examination of that doctrine's development, however, suggests that over time, the courts have developed an approach that erects appropriate safeguards against those cognitive failings.

By contrast, this Article portrays the development of commercial speech doctrine as a departure from the insights of behavioral analysis. By hewing closely to a classical model of rationality and urging a strongly anti-paternalistic approach to commercial speech, the courts have failed to account for the judgment-distorting effects of advertising. Whatever shape doctrine in this area ought to take, it must at least begin to acknowledge and respond to these concerns.

Necessarily wedded to this Article's positive analysis of First Amendment doctrine is the question of institutional choice. This Article thus asks two recurring questions: (1) how do we craft First Amendment rules that appropriately measure the extent of the risk generated by particular speech acts; and (2) given the varying degree to which different players in the system of free speech - judges, juries, legislators, and regulators - suffer from particular cognitive shortcomings, which institution should be assigned the ultimate decision-making role? The Article suggests that the answer to these questions may vary across a range of First Amendment issues.

Keywords: first amendment, freedom of speech, behavioral analysis of law, heuristics and biases, availability heuristic, illegal advocacy, schenck, dennis, brandenburg, commercial speech