Freedom of Expression and Distrust of Government

The final theory of freedom of expression that I shall take up can be dealt with in short order. That theory derives the right of freedom of expression from the premise that government cannot be trusted to regulate expression, either because it is unduly error-prone in assessing expression’s harms and benefits, or because it has motives for regulating - notably, self-protection - that render it untrustworthy in doing so.^[283]

The premise that government is unduly error-prone in regulating expression appears to be an empirical rather than a conceptual one.

On the other hand, to the extent that the premise of governmental incom­petence is based on a more universal governmental interest in remaining in power and thus on government’s fear of criticism and dissent, the only right of freedom of expression that the premise generates is the very narrow one of a right to criticize the government. Of course, criticism of the government can be given a capacious definition; but the more expression that is deemed to be criticism of the government, the less plausible the claim of governmental untrustworthiness.

Finally, with respect to the claim that government is fallible in assessing the truth and value of messages, such a claim, if true, applies to governmental regulation generally. Every regulation, if it is to be beneficial rather than per­nicious, must bring about benefits that exceed its costs (however benefits and costs are gauged). To know whether a regulation is beneficial, therefore, re­quires government to assess causal and other factual propositions and to weigh values at stake. Regulations of conduct without respect to messages that conduct conveys - in other words, all Track Two regulations, which, as argued, encom­pass the entire corpus juris beyond Tracks One and Three - are no different in this respect from the message regulations of Tracks One and Three. The benefits and harms of ideas are no harder for government to evaluate than the benefits and harms of laws generally.

V.