Jane R. Bambauer and Derek E. Bambauer,
105 Calif. L. Rev. 335
Legal scholarship has attacked recent First Amendment jurisprudence as unprincipled: a deregulatory judicial agenda disguised as free speech protection. This scholarly trend is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing government to employ more direct regulations with fewer collateral consequences. Even an expansive First Amendment is compatible with the regulatory state, rather than being inherently libertarian. Normatively, courts should be skeptical when the state tries to design socially beneficial censorship. This Article advances a structural theory that complements classic First Amendment rationales, arguing that information libertarianism has virtues that transcend political ideology. Regulating information is peculiarly difficult to do well. Cognitive biases cause regulators to systematically overstate risks of speech and to discount its benefits. Speech is strong in its capacity to change behavior, yet politically weak. It is a popular scapegoat for larger societal problems and its regulation is an attractive option for interest groups seeking an advantage. Collective action, public choice, and government entrenchment problems arise frequently. First Amendment safeguards provide a vital counterpressure. Information libertarianism encourages government to regulate conduct directly counterproductive. Thus, a robust First Amendment deserves support regardless of ideology.