Free Speech and the “Acid Bath”: An Evaluation and Critique of Judge Richard Posner’s Economic Interpretation of the First Amendment
Part I of this Note introduces the mechanics of the model Judge Posner has developed to determine whether restrictions upon speech should be upheld. Part II evaluates and critiques Posner’s method from an internal perspective. This is first done by examining the theoretical foundations and assumptions of his economic perspective. This part then turns to testing the output and conclusions of the model to determine how successfully the theory can be turned into practice. Part III constitutes an external critique of Posner’s model. This part addresses the question of whether the first amendment should be thought of in economic terms. After addressing the institutional problems associated with judicial adoption of the model, the limitations inherent in the economic methodology itself, and the potential dangers of implementing the method, the part concludes that an economic perspective can be a useful tool in the hands of the constitutional decisionmaker, but only when used in full recognition of its limitations. Part IV presents some final remarks on the costs and benefits of an economic perspective.