NEGATIVE — DISADVANTAGE — FREE SPEECH 182

WE MUST NOT BALANCE FREE SPEECH AGAINST OTHER ISSUES

BALANCING FREE SPEECH VERSE OTHER RIGHTS IS NOT A ACCEPTABLE POLICY OPTION

Steven J. Heyman, Associate Professor of Law, Chicago-Kent College of Law, "RIGHTING THE BALANCE: AN INQUIRY INTO THE FOUNDATIONS AND LIMITS OF FREEDOM OF EXPRESSION," Boston University Law Review, December, 1998, 78 B.U.L. Rev. 1275 , EE2001-JGM, P.1311-1312

The third approach, balancing, seeks to avoid the pitfalls of both statism and civil libertarianism. In recognizing that both free speech and competing interests have important value, and that neither should be unreasonably sacrificed to the other, balancing is appealing from a common sense standpoint.   From a theoretical perspective, however, balancing is perhaps the least coherent of the three approaches, for it is difficult to see how free speech and state interests are to be balanced against each other. As originally conceived by Pound and others, a major purpose of interest jurisprudence was to reduce competing values to common terms - those of social welfare - so that they could be weighed on the same scale. On this view, applied by Chafee to the First Amendment, free speech and other interests should be measured in order to determine what result would most promote the common good. n199 Yet the common good provided only an indeterminate standard for deciding between social interests. n200 Moreover, balancing social interests is often thought to be an essentially legislative function. n201 Thus, this approach - what may be called quantitative balancing - failed to ensure strong protection for free speech. n202

BALANCING FREE SPEECH VERSES STATE INTERESTS DOESN'T OCCUR BECAUSE THE TWO ARE NOT SEPARATE FORCES

Steven J. Heyman, Associate Professor of Law, Chicago-Kent College of Law, "RIGHTING THE BALANCE: AN INQUIRY INTO THE FOUNDATIONS AND LIMITS OF FREEDOM OF EXPRESSION," Boston University Law Review, December, 1998, 78 B.U.L. Rev. 1275 , EE2001-JGM, P.

The case for First Amendment absolutism has also been made on more substantive grounds. First, some writers have advanced what may be called the "global balancing" argument, which holds that a weighing of the costs and benefits of free speech leads to the conclusion that "freedom is always expedient." n179 Although it initially seems plausible, this contention is also unpersuasive. It is undoubtedly true that, on the whole, the benefits that flow from free speech far exceed the harms, and that a society with absolute freedom of speech would be far better off than one with none. The fallacy, of course, lies in the implicit assumption that these are the only alternatives. From an interest-balancing perspective, the object is to determine the optimal balance between liberty and regulation. On this view, free speech should receive protection up to the point where its marginal benefits are outweighed  [*1309]  by its marginal costs. Of course, rule utilitarianism teaches that such determinations often should be made on the level of general categories rather than individual acts. n180 It seems clear, however, that there are many classes of speech whose regulation would promote social utility. n181 It follows that absolute protection for speech cannot be successfully grounded on a balancing of social interests.

VULNERABILITY OF CHILDREN DOES NOT JUSTIFY INFRINGING ON FREE SPEECH RIGHTS

But the vulnerability of children is not a unique justification for restrictions on marketing, since myriad other speech activities may influence children. On the Internet, for example, children may encounter Ernst Zundel's assertions about Nazi UFO bases at the South Pole and other bizarre or frightening ideas such as those of the Heaven's Gate cult.(78) Concerned parents should sit down with their children and explain the credibility of Internet pitches. Or they can buy software, like Net Nanny, that prevents their child from giving out information online such as names, addresses, and credit card numbers and that can block hate speech or sexual content.(79) There is no unique need for government to regulate Web site content, whether that content is commercial or indecent or political.