Knowledge and decisions, p.36
Knowledge And Decisions, page 36
In short, administrative agencies have become a major part of the American legal system, and a part not merely outside the original vision of the Constitution, but also able in practice to enact and enforce laws in ways forbidden to other organs of government by the Constitution. Despite their formal subordination to legislative correction by Congress and judicial review by the appellate courts, regulatory commissions are insulated from effective control by their sheer numbers, by the intricacies and arcane language of their regulations, and by the multitude of other claims on the time of Congress and the courts. Effective feedback comes largely from special interests, each with a sufficient stake to monitor its respective agency, to shoulder the cost of appeals, and to lobby before the appropriate committee of Congress. But a criminal can challenge the verdict of a trial court much more cheaply than an ordinary citizen can challenge the ruling of an administrative agency. Moreover, the kind of personal bias which would disqualify a judge is considered acceptable, or even desirable, in members of a regulatory commission. That advocates of recreational interests ("environmentalists") should dominate commissions concerned with environmental matters is considered as natural as that "minority" activists should dominate the EEOC. This would be a questionable departure from legal tradition, even in cases not dependent upon "rebuttable presumptions," to be rebutted to the satisfaction of such officials.
Costs are a crucial factor in all forms of legal proceedings. A legal right worth X (in money or otherwise) is not in fact a right if it costs 2X to exercise it. This is obvious enough when the rights and the costs can be reduced to money. The principle is no less true in cases where the values are nonfinancial. For example, a woman's right to prosecute a rapist can be drastically reduced-for some women, obliterated-by allowing the defense attorney to put her through an additional trauma on the witness stand with wide-ranging questions and observations, publicly humiliating her but having little or nothing to do with the guilt or innocence of his client. There is some belated recognition of this cost in some places with changed trial rules in rape cases, but this is usually seen as a special problem in a special situation, rather than a general problem of costs in legal procedures. Where a right is so defined, in legislation or by judicial interpretation, that either the plaintiffs or the defendants can impose large costs on the others at little or no cost to themselves, then the law may be so lopsided in its impact that the right can be reduced to meaninglessness or expanded far beyond its original scope or purpose. In the case of rape, it is the defendant who can impose disproportionate costs-reaching prohibitive levels for many women. In other kinds of cases and rights, it is the plaintiff who can create huge costs for the defendant at little or no cost for himself. For example, recreational interests ("environmentalists") can impose large costs on builders of everything from bicycle paths to power darns by demanding that they file "environmental impact" statements, in effect putting the burden of proof on the accused. Although such statements are officially defined by their hoped-for results, they have virtually no demonstrated effectiveness for predicting how any environment will in fact be affected." They are, however, very effective in imposing both direct financial costs and costs associated with delay. For projects requiring large investments, the mere delay can cost millions of dollars and doom the project, since the value of a given physical thing varies with the time at which it becomes available. That is, so-called "environmental impact" requirements impose high costs on one party at low cost to the other party, regardless of the legal outcome of the case.
The law and legal critics are both so preoccupied with the ultimate disposition of cases that costs of the process itself tend to fade into the background. Yet these process costs may determine the whole issue at stake. For some, to be totally vindicated after years of filing reports, attending many administrative hearings, trials, and appeals is often meaningless. Under environmental impact laws, the case to be made by the plaintiff to keep a costly legal process going is either nil or may consist solely of speculation. He does not bear the burden of proof.
Although adversary legal systems put much emphasis on litigants, or at most on the categories of people they represent, all legal systems are ultimately social processes serving social purposes, including transmitting knowledge for social decisions based on costs entailed by alternative social behavior. When the legal system causes the trade-offs between opposing private interests, or opposing social concerns, to take place in ways that put more costs on one side than on the other, this affects much more than the justice or logic of the final decision in those cases that are adjudicated. In legal as in economic processes, the transactions that do not take place at all may represent the largest cost to the public. The electric generating capacity that is not built, and the traumatic blackouts that result from overtaxed electric generating capacity, may far outweigh the annoyance of a handful of lakeside resort owners or the Sierra Club-if the costs of the two results could be equally accurately conveyed through either the economic system or the legal system. Where the costs of transmitting one set of knowledge (the demand for electricity, in this case) is artificially made greater than the costs of conveying the other set of knowledge (recreational demands), then the distortion of knowledge can lead to results which neither the economic nor the legal decision makers would have reached had accurate knowledge been equally transmittable from opposing sides at equal cost. In the criminal law as well, the real costs of the legal system are not the financial costs of such transactions as happen to take place, but are primarily the social costs of those transactions that do not take place-the cases that are not tried but dropped or plea bargained because of the prohibitive cost of doing otherwise.
FREE SPEECH It is not merely as an individual benefit but as a systemic requirement that free speech is integral to democratic political processes. The systemic value of free speech depends upon the high individual cost of knowledge-that is, lack of omniscience. "Persecution for the expression of opinions" may be "perfectly logical," according to justice Oliver Wendell Holmes, when "you have no doubt of your premises." He continued:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.15
This faith in systemic processes rather than individual intentions or individual wisdom meant that even "a silly leaflet by an unknown man"" required constitutional protection, not for its individual merits, nor as an act of benevolence or patronage, nor as recognition of an opaque "sacred" character of an individual's endowment of "rights," but as a matter of social expediency in a long-run, systemic sense. For that very reason, it was not a categorical right but one subordinated to that social expediency which justified it in the first place, and therefore revocable whenever it presented a "clear and present danger"" to the continuation of that systemic process itself or to the people and government in whom that process is expressed. In short, the right of free speech is not an opaque "sacred" right of an individual, any more than other rights such as property rights are "sacred" individual possessions. All are justified (or not) by the litmus test of their social expediency-not in the sense that any individual or group rash enough to imagine themselves capable of following the specific ramifications of each particular statute or privilege in its social impact may centrally control all words or equipmentbut in the larger and longer-run sense that we can judge the historic benefits of systemic interplay better than we can determine individual wisdom in word or deed in process. Adam Smith's systemic defense of laissez faire, despite his obvious and pervasive disgust with businessmen,16 paralleled Holmes' systemic justification for freedom for opinions he regarded as harm ful or contemptible. Both amount, ultimately, to recognition of different costs of knowledge in judging overall results rather than judging individual parts of a process.
Complications arise with the very meaning of "free" and of "speech." The basic conception of freedom of speech-that the substantive content of individual communication be uncontrolled by government-has been judicially supplemented or extended by considering the economic cost of communication. If the content of speech remains unconstrained by government, but the modalities of its delivery are restricted (e.g., bans on sound trucks at 2:00 a.m.), then beyond some point in such restrictions, the alternative costs of other modes of communication could conceivably price the speaker out of the market. "Freedom" of speech has therefore, in recent decades, come to include concern for the cost of communication-almost as if "free" had an economic rather than a political meaning. "Speech" has also been judicially expanded to include various forms of articulation (picketing, for example) and even inarticulate symbolism (flag burning). Extensions of the concept of "speech" to other activities places other aspects of these activities-harassment and intimidation, for example-under constitutional protection intended only for communication. Similarly, extending the freedom of the press can mean allowing newpapers to be used as protected conduits for threats or ransom demands by individuals or groups who communicate with victims or their families or the authorities via newspaper stories phoned to reporters.
In the 1940 case of Thornhill v. Alabama the Supreme Court declared a state ban on picketing unconstitutional as a violation of free speech.19 The broadness of the ban and the corresponding broadness of the affirmation of the right of free speech as applied to pickets led to subsequent challenges to other picketing restrictions of a more limited sort. Here the court recognized the nonspeech aspects of picketing as subjecting the whole activity to some state control, such as when "the momentum of fear generated by past violence would survive even though future picketing might be wholly peace- ful.20 Moreover, picketing by an organized group "is more than free speech" because the presence of its picket line "may induce action of one kind or another, quite irrespective of the nature of the ideas which are being dissemi- nated.21 Despite these reservations as to the legal immunization of nonspeech activities by the "freedom of speech" provisions of the Constitution, over the years the courts have generally expanded the scope of activities deemed to be protected by the First Amendment, and extended the constitutional restrictions to organizations not part of the governmental apparatus. The First Amendment begins "Congress shall make no law ... ," but by interpreting the Fourteenth Amendment as bringing the states under federal constitutional restrictions, the Supreme Court applied the rest of the earlier amendments to state governments.22 Then, in a series of cases, it extended the constitutional restrictions to various private organizations as well.
In the landmark case of Marsh v. Alabama (1946) the Supreme Court ruled that the state could not prosecute for trespass a woman who distributed religious leaflets in a privately owned suburb where such distribution was forbidden by the owner. Although the state was not forbidding distribution of leaflets, the state's enforcement of the property owner's rights against trespass was held to be sufficient to transform the property owner's ban into "state action" in violation of a constitutional right. The court said: "When we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position."23
The fact that different costs and benefits must be balanced does not in itself imply who must balance them-or even that there must be a single balance for all, or a unitary viewpoint (one "we") from which the issue is categorically resolved. Each individual who chooses whether or not to live, work, or shop in a privately owned development can balance the costs of those rules against the benefits of living, working, or shopping there, just as people individually balance the costs of participating in other activities under privately prescribed rules (e.g., eating in a restaurant that requires a coat and tie, attending a stage performance where cameras are fordidden, living in an apartment building that bans pets). The court here went beyond the function of carving out boundaries, within which other institutions could make specific decisions, to making the substance of the decision itself. In doing so, it transformed an individual incremental decision into a categorical decision, confiscated a portion of one party's assets and transferred them to another (a transfer recognized as such by the author of the decision21), and substituted its evaluation of the costs and benefits of access to communications for the evaluations of those living, working, and shopping where the leaflets were being distributed.
From a social decision-making point of view, it is a misstatement of the issue to represent the opposing interests as being the property owner and the leaflet dispenser. The owner of a development is a middleman, whose own direct interest is in seeking profit, and whose specific actions in his role as middleman represent transmissions of the perceived preferences of other people-tenants and shoppers-who are the sources of his profits. The real balance is between one individual's desire for an audience and the prospective audience's willingness to play that role. How important another channel of communication is to the audience is incrementally variable, according to each individual's already existing access to television, newspapers, maga zines, mail advertisements, lectures, rallies-and other places and times where leaflets can be handed out and received.
The prospective audience's incremental preference for tranquility where they live or shop-undisturbed by messages or solicitations to read messages-may be of greater value to them than any losses they suffer from not receiving such messages at this particular time and place, or the value to the soliciting party of reaching them at this time and place, or even the social value of "free speech" as an input into political and other decisionmaking processes. But no such balancing takes place through legal processes conferring "rights" to uncompensated transfers of benefits.
Both the solicitor and the solicited have alternative channels of communication. To claim that the costs of some alternative channels are "prohibitive" is to miss the whole point of costs-which is precisely to be prohibitive. Costs transmit inherent limitations of resources compared to the desires for them, but do not create this fundamental disproportionality. All costs are prohibitive to some degree, and virtually no costs are prohibitive absolutely.25 Clearly, the costs of passing out leaflets would pay for direct mailing instead, or for newspaper ads, telephone solicitation, public gatherings, etc.
"Free speech" in the sense of speech free of governmental control does not imply inexpensive message transmission, any more than the right of privacy implies subsidized window shades. It is especially grotesque when the subsidy to message-senders takes the form of forcing others to be an unwilling audience, and where the small number of solicitors are called "the people" while the large number of those solicited are summarized through their intermediary as "the property owner." Even the dissentors in Marsh v. Alabama posed the issue in those terms.26
More basic than the question of the probable desires of a prospective audience is the question of who shall decide what those desires are, either absolutely or relative to the desires of message senders. That is, what decisionmaking process can best make that assessment-and revise it if necessary? Apparently some people were presumed to be receptive, or the leaflet distribution would not have been undertaken. By the same token, others were presumed to want to be left alone, or the solicitation ban and the lawsuit to enforce it would not have been undertaken. Therefore, there is a question not only of the estimated numbers and respective social costs of one course of action versus another, but also a fundamental question of how an initially-mistaken perception either way would be corrected by feedback under various institutional processes.
Under informal or noninstitutionalized decision-making processes, with neither the government nor the developer involved, the leaflet distributor would have no incentive to take account of the external costs imposed on people who prefer undisturbed coming and going to receiving his message. Even if a large majority of his potential audience preferred being left alone, as long as this desire was conveyed in civil terms, short of abuse or violence, it may receive little or no weight in the distributor's own balancing of costs and benefits. The distribution would continue, regardless of how little benefit a handful of passers-by felt they received and however much annoyance the others might feel-and regardless of how mistaken the leaflet distributor might be about either of these things.
Formal economic institutions translate the pleasure or displeasure of tenants, shoppers, or other users of a private development into a higher or lower financial value for a given set of physical structures. The property owner, even if he lives elsewhere, or is personally indifferent about leaflets, has an incentive to produce whatever degree of privacy or tranquility is desired, as long as its cost of production to him does not exceed its value to those who want it, as revealed by their willingness to pay for it.27 More importantly, those property owners who are mistaken as to the nature and magnitude of other people's desires for privacy or tranquility find the value of their property less than anticipated, and therefore have an incentive to strengthen, loosen, or otherwise modify their rules of access.
