Abstract
The first part of this commentary argues that because the production of dissent depends on the availability of information, greater attention should focus on government restrictions on access to official information. At no time is this more important than when information is monopolized by the government. If not constrained, government’s monopoly control of information, combined with its incentives to shape support for its policies, may at some times and in some ways reduce dissent. In the second part of the commentary, a cost-benefit approach is proposed to analyze an individual’s incentives to produce speech and is then applied to assess the role social communities play vis-à-vis individual dissent. This analysis underscores the important and complex (sometimes encouraging, sometimes discouraging) role that communities play in the generation of dissent. Our analysis uses economic tools, often accompanied by an antitrust perspective, to better understand the implications of government information control and social pressures upon speech and dissent.
Keywords
I. Introduction
Freedom of speech is the first right articulated by the First Amendment to the Constitution, but the nation has taken a decidedly laissez-faire attitude regarding the production of speech. The “free” aspect of speech refers to freedom from government restrictions. 1 While attention to protecting the dissemination of speech is important, so too is protecting its generation. This is especially the case with respect to speech regarding public policy. Nowhere is this more important than when information is monopolized by the government. For the government to truly protect the so-called marketplace of ideas, its monopolization of information must be constrained, particularly when that information pertains to the government itself. This is the focus of the first part of the commentary.
While the unavailability of information can significantly constrain the production of speech, the extent to which such information, even when available, translates into speech is not necessarily straightforward. Forces exist that may lead to varying degrees of self-censorship. The second part of the commentary examines an arguably crucial force acting on individual speech: the impact of social pressures on an individual’s willingness to speak.
We live at a time when information is readily available and when opinions about everything seem to abound. But these two forces – government information control and social pressures – suggest that social discourse is not as informed or vibrant as it could or should be on matters of public policy. Our analysis of these forces uses economic tools, often viewed through an antitrust lens, to identify impediments to discourse and the different ways in which the government and social communities may influence speech and especially dissent.
II. Government Monopolization of Information Inputs
As U.S. Supreme Court Justice Oliver Wendell Holmes famously wrote: “The ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of thought to get itself accepted in the competition of the market … That at any rate is the theory of our Constitution.” 2 The pervasiveness of the “marketplace of ideas” metaphor depends heavily upon its “poetic power.” 3 This commentary endeavors to apply some of the economic thinking invoked by the marketplace metaphor 4 and to challenge some of its implicit assumptions. In particular, by focusing on the competition between ideas, Holmes assumes a state in which the ideas are already formed and the marketplace determines their fate. Ideas are the product in Holmes’ marketplace. This part focuses attention at a much earlier point, one that is upstream and concerns the availability or the lack of access to government-controlled information inputs in the production process. In this marketplace, our first focus is on the supply of information.
Here we use the term “speech” narrowly, to refer to the articulation of ideas that typically consist of a position that is supported by logic, facts, or information. Thus, facts alone or the mere assertion of a position without some rationale are excluded from our definition. “Dissent,” as used here, is a subset of speech that is critical of the status quo or an official policy and is not necessarily valued as an end in itself, but rather because it can assist society in making better decisions.
Our analysis presumes that government information plays a crucial role in determining public policy, that the ability of the public at large to discuss, debate, and dissent from government policy is strongly affected by government control of information, and that enhancing the possibility of dissent makes for better policy and better democracy. To be sure, information also enters the marketplace from a wide variety of sources including private interest or advocacy groups, researchers, and whistleblowers. However, for our purpose, it is sufficient that government supplied information is often both unique and important. 5
We turn now to an economic analysis of the supply of government-controlled information and its consequences for social discourse regarding government policy. Economics assumes that a competitive market efficiently allocates society’s resources. Efficient outcomes, such as matching supply to demand, emerge from the actions of completely self-interested buyers and sellers without the intervention of a centralized authority. The buyers who most value particular goods acquire them from the producers who can make them most efficiently. 6
Economic logic makes clear that the full benefits associated with markets do not obtain when competition is particularly limited, for example, when only a single monopoly producer exists. In a monopoly setting, self-interest leads the producer to set prices higher than would be set in a competitive market. This supra-competitive pricing means that fewer goods or goods of lower quality are produced and sold than would be ideal, given buyer preference and actual production costs. Efficiency in terms of resource allocation is, therefore, reduced. Misallocation of economic resources occurs not only when a monopolist controls the downstream product sold to the consumer, but also when a monopolist controls an upstream input used to make such products. Government can address monopoly-related problems through regulation or enforcement of antitrust laws (e.g., restrictions on anticompetitive business practices or anticompetitive mergers).
This commentary focuses on a marketplace of ideas in which an upstream input supplier (the government) has a near monopoly on a critical input (government-related information) used for a downstream product (speech). By applying economic logic to this scenario, we show how conditions that interfere with the ideal functioning of conventional product markets may correspond to conditions that interfere with policy discourse. And, as a consequence, we show how antitrust insights into the former can apply to the latter.
Consider how a restriction in the amount or quality of relevant information inputs affects speech production. Speech is generated, in part, by using inputs such as information (e.g., facts). Without such information, speech is more likely to be faulty, because it builds on less information, or to be speculative, because it builds on hypotheticals. Additionally, having relevant facts can sharpen the analysis by facilitating its application, raising its salience, and arguably increasing its prospects to influence. A lack of information can degrade not only the quality of speech, but also, presumably, the quality of general discourse. As in the marketplace for goods, monopoly control over the key input of information can lead to higher input costs and consequently has the potential to decrease the amount or the quality of speech produced.
Further consider the speed with which information is released or, more to the point, the lack of speed. Delays increase costs to those who would otherwise use this information because time pressures may force these parties to argue without the information or to find a substitute source for the information. 7 Moreover, even when information is still technically available through nongovernmental channels, such sources may be much more expensive than the government equivalent.
While the government may be a source of redress against monopoly abuses in the private sector, it is a monopolist in many of its own spheres of activity. Consider, for example, a government agency that develops and implements a given policy. Not only does the government often lack competition within a given policy sphere, but it frequently enjoys at least a temporary monopoly on information regarding its performance.
Information regarding any entity’s operations is generally, at least in the first instance, privately held. Such monopoly or near-monopoly control over information is not necessarily nefarious in itself. The question becomes whether the government has the incentives and the means to use its monopoly power like a monopolist in the private sector. If the government does, the results can be quite troubling, especially with respect to the production of dissent, that is, speech questioning the utility or fairness of government policy.
In theory, one might expect the government, acting as an agent for the public interest, would not exploit its monopoly power over information. However, when government agencies and officials have a vested interest in policy debates, a strong incentive exists for self-interested behavior. There are some differences between the use of monopoly power in the private sector and the public sector. First, government agencies do not usually sell information in a conventional sense and, therefore, they do not have the same pricing mechanism available to private sector monopolists. But the agencies can exercise clout through decisions regarding what information is released, when it is released, and how costly it is for a party to gain access to the information. 8 Second, the economic goals of private-sector monopolists remain essentially the same over time, whereas changes of government administration will frequently introduce changes in goals. Such changes, in turn, may unlock some information that was previously withheld.
Selective release of information by government agencies presumably favors vested interests and is a force that directionally fosters an unbalanced discourse that favors current policies over alternatives offered by critics. But, while the amount of dissenting speech is probably reduced, sufficient information may still be available elsewhere to ensure a more than adequate level of dissent for a balanced policy debate. Hence, the ultimate effect of a government monopoly over select pieces of information will vary on a case-by-case basis.
1 Regulating government’s natural information monopoly with FOIA
Certain conditions foster, or at least permit, the emergence of monopolies. Government’s sole jurisdiction over major areas of public policy implies that government will have monopoly or near-monopoly control over relevant information inputs that affect policy discourse. The lesson from conventional monopoly markets also applies to the government information monopoly, namely, regulation is sometimes desirable because competitive forces are too weak to deliver socially desired outcomes.
The Freedom of Information Act (FOIA) was passed to ameliorate the federal government’s potential to abuse its information control by establishing requirements regarding information sharing. 9 Prior to adoption of this federal statute in 1966, the government routinely considered itself “free to withhold information from the public.” 10 Significantly, FOIA established a regulatory “standard of openness for government” that enabled the public to request and receive government-held information unless the information sought fell within excluded categories, for example, national security, personal privacy, business secrets, and confidential decision-making. If the person seeking information thought it was wrongfully withheld, the person could sue the government. 11
FOIA, with its relevant statutes and legislative history, embodies a commitment to the public’s general right to know. Its legislative history is replete with statements such as, “[t]he man in the street has the right to know about his Government, and this includes its mistakes.” 12 FOIA fosters a more vibrant discourse because it promotes increased transparency and information release, particularly by curtailing the timeframe of the government’s monopoly. But it is less clear how effective FOIA is in addressing the bias associated with “selective disclosure,” a concern voiced by some legislators. 13 Because FOIA requests are handled by the government agency in question, the incentive of the agency to release information that is favorable rather than unfavorable to it still operates, though the agency’s ability to manipulate information release may more often affect the speed of release, rather than whether the information is made available.
Since the original FOIA legislation was passed, many amendments, executive orders, and agency policies have been implemented to improve its effectiveness. Nonetheless, users of FOIA remain frustrated with denials, government’s claimed inability to find requested data, censoring of data, and speed of response. 14 Such concerns were captured in a recent Congressional report that was titled “FOIA is Broken.”
Excessive delays and redactions undermine [FOIA’s] value. In large part, FOIA’s efficacy is limited by the responsiveness of the agency that receives and processes the request. On innumerable occasions, agencies have refused to produce documents or intentionally extended the timeline for document production to stymie a request for information.
15
The alleged lack of responsiveness to FOIA requests could be attributed to limited resources and perhaps, as a related matter, a lack of prioritization. Of greater concern, however, are situations in which agencies maintain some monopoly control of information by engaging in selective treatment of FOIA requests based on agency or personal self-interest. In such situations, agencies may categorize requested information as falling under a FOIA-excluded category and so deny requests or use procedural tactics to delay disclosure. 16 Each federal agency subject to FOIA has personnel who process those requests which frequently entails contacting those in the agency who may possess the requested information and, thereby, potentially bringing those parties into the decision conversation. Some agencies have, at times, taken the added step of requiring higher-up political review of FOIA requests, which underscores the importance to agency leadership of controlling FOIA information disclosures. 17
If a significant gap exists between the intent behind FOIA and its actual performance, as many have argued, one wonders why this gap has not been more aggressively attacked. One answer may be that while society can agree on the right to know and the need to avoid selective disclosure of information, we are less focused on how such principles lead to improved social discourse. 18 This disconnect may perhaps be explained by Austin Sarat’s trenchant insights into America’s complex relationship with such speech. He notes that while dissent is “advertised as a peculiarly American achievement,” particularly owing to its role in “legitimating our politics,” 19 in actuality “in the practices of our social and political institutions dissent is seldom celebrated and embraced.” 20 Instead, dissent is tolerated. 21
2 Regulating corporate information monopolies
The problem of information monopolies is not limited to the government. It is useful to briefly contrast how such monopolies fare within competitive marketplaces. Consider, for example, the role of private information regarding firm performance. Trustworthy information concerning a firm’s current financial performance provides a foundation for speech regarding a firm’s future performance. While government regulations compel firms to disclose some information, market pressures prompt further disclosures.
Investors seeking to critically assess claims by firms regarding their future financial prospects exert pressure for voluntary disclosure. Such competitive pressures succeed, in part because firms about which investors have higher quality financial performance information will present more attractive investment possibilities, all other things being equal. Such interest by investors creates pressures for voluntary disclosure and third-party certification of information. The consequences of such competition for increased information disclosure is starkly illustrated by the actions of firms headquartered in developing countries with weak corporate governance rules. A number of these firms have attempted to gain investor confidence by building reputations for truthful disclosure 22 or, even more directly, by choosing to list their securities on stock exchanges in more developed countries and, in so doing, committing themselves to greater information transparency. 23
III. Social Pressure, Market Power, and Self-Censorship
Part II focused on information (particularly information that is subject to a government monopoly) as a critical input to the process by which speech, including dissent, is produced. But the mere availability of information which fosters certain views does not necessarily mean that those views will translate into speech. This part explores how social factors shape an individual’s incentives to produce speech with a particular emphasis on how social pressures may discourage certain types of speech, that is, lead to self-censorship. By “individual speech” we have in mind speech that is unrelated to any official organizational role of the speaker. 24
Though traded in the proverbial marketplace of ideas, the production of individual speech differs from the production of conventional goods to the extent that individual speech production is driven more by social pressures, rather than commercial factors. Steven Shiffrin, for example, maintains that “[s]peech is predominantly interpersonal and associational …” 25 He further argues that, “[d]issenters do not ‘sell’ ideas in the manner depicted by the marketplace metaphor …” 26 Along similar lines, Vincent Blasi notes that the “process of transmitting ideas … has dimensions of cooperation, reciprocity, and mutual ongoing identification.” 27 Social pressure is one of many factors that affect an individual’s decision whether to speak and it has the potential to play a decisive role in prompting self-censorship. Such pressures reflect the actual or anticipated reactions from people with whom the speaker has social relationships that, in turn, may affect the individual’s status, reputation, and respect within the individual’s respective communities. 28
Given the complex interaction between social pressures and individual incentives to produce speech, our analysis is necessarily exploratory, seeking more to raise questions and suggest possible links than to advocate a particular viewpoint. Continuing with an economics orientation, we employ cost-benefit logic to explore how individual speech is influenced by social pressure and then explore the implications of this influence for the overall quality of social discourse. The virtue of the cost-benefit analysis deployed herein – a method that has been applied by Posner, among others, to the speech context 29 – is that it is sufficiently general to accommodate the incorporation of noneconomic factors such as social pressures.
Social interactions that affect an individual’s speech production range from relationships between individuals to those between the individual and a group or community (e.g., one’s church or employer). We refer to an individual’s relationship with a community as shorthand for capturing the set of relationships, individual and group, that lie within each particular community.
Pressure, conveyed through social interactions with the various communities in which individuals are embedded, can encourage or discourage individual speech. In the former case, if an individual has a strong tie to communities that are critical of current policy, such encouragement could increase dissent. But in the latter case, when the relevant communities favor current policy, social pressure may lead individuals to self-censor critical speech, thereby reducing dissent. 30 The perceived benefits and costs associated with dissent also depend upon the speaker’s relative integration into or independence from the community at issue. 31
To assess the impact of community pressure on an individual’s decision regarding speech, it is helpful to identify the primary communities to which an individual belongs (or aspires to belong), to assess the likely reactions of members of these communities to the speech produced, and then to consider how the anticipated social consequences compare to other costs and benefits associated with the speech. While such a wide-ranging assessment is beyond the scope of this commentary, we offer some thoughts regarding the first two parts of an individual’s decision whether to speak.
We think of these communities as including employment (e.g., a renewable energy producer), professional societies (e.g., economics), interest groups (e.g., an environmental group, local chamber of commerce), and social or religious groups (e.g., local country club or church). Our focus is on social reactions to an individual’s activities that are not part of an activity dictated by the community in question. Consider, for example, a situation in which, for example, an individual writes an op-ed on her own time, with the social reaction coming from individuals and groups within her various communities.
Each community evaluates individual speech based on its internal logic, marshaling of evidence, and the ultimate position claimed. Community reactions will also reflect broader norms, including, for example, the extent to which dissent is tolerated. Part and parcel of that are the assumptions adopted and whether the arguments are based on approaches and facts that the community finds legitimate. For example, the professional economics community may be tolerant of a wide range of policy positions, but be highly critical of arguments that are inconsistent with what it deems correct economic logic. It might accept assumptions, such as “optimizing agents,” that other social science communities might find suspect. Similarly, environmentalist interest groups might, for example, object to a position that rejects global warming or to a heavy reliance on evidence from disfavored sources.
As a purely descriptive matter, reactions by members of an individual’s communities to that individual’s speech may result in immediate social costs or benefits to the individual and later may also affect decisions relating to that individual’s assignments and advancement within those communities. Such direct and indirect effects are heightened in communities, such as an individual’s employment community, where social interactions are generally commonplace and the potential indirect benefits and costs are highly valued. 32 An implication of these pressures, for example, would be that an individual is more likely to engage in self-censorship on positions that criticize public policies that are strongly favorable to the individual’s employer because such positions are likely to elicit negative responses from the employment community. 33
The preceding analysis takes community membership as given, when it is, in fact, generally discretionary. If the benefits and costs to dissent depend significantly on an individual’s community memberships, then the circumstances of those associations, including the decision to join or to exit, are important. When membership is entirely discretionary, individuals presumably join communities that are relatively consonant with their preferences. 34 This sorting behavior would lead to less disagreement with extant community views and, therefore, lower social costs attendant to membership. But when an individual joins a community for reasons separate from the particular policy at issue, preferences are less likely to be aligned. 35 Consider the choice to join an environmentalist community (in which membership depends on environmental policy preferences) and to join an economics society (in which the membership is likely to hold diverse policy preferences) as examples in which sorting is probably more and less relevant, respectively.
An individual may consider exiting a community to avoid the social costs associated with disagreement. 36 As exit becomes comparatively more expensive, the likelihood of self-censorship because of anticipated social costs increases. Quitting one’s job exemplifies a difficult, but still potentially manageable exit scenario, compared to, for example, the decision to leave the United States to escape a disfavored domestic policy. Ironically, when exit is expensive, there are also potentially increased benefits to an individual to invest in changing the community’s position through speech, compared to the situation in which exit is inexpensive. 37 Then, if the social costs are not particularly high, the increased benefits would lead to speech, rather than to self-censorship.
Our discussion thus far has highlighted the influence that social pressures have on individual incentives to speak. A full assessment of the impact of this mechanism on dissent and overall social discourse would ideally need to consider first whether biases at the individual level translate to the societal level, that is, will the aggregation across individuals mitigate the problem posed by biases at the individual level, and, second, what are the impact of these forces in light of the overall panoply of forces affecting speech production more generally. In the following discussion we have a much more limited ambition: For a given issue, we suggest that characterizing the population of social communities present in society provides a valuable approach to assessing situations in which the social pressures operating on individuals may negatively affect discourse. 38
To appreciate the utility of a community population assessment, consider two hypotheticals involving purely competitive and monopoly settings. In each case, there is a public policy about which there exist multiple possible perspectives about whether that policy is best for society as a whole. In the pure competition case, there are multiple strong communities that support each of the perspectives, with the outcome that each perspective is well presented within the social discourse and all individuals in the local society are equally well informed. Here, dissent with respect to the status quo policy is part of the discourse. The pure competition case would seem to correspond to the ideal situation in Holmes’ marketplace of ideas.
But now consider the monopoly case. For the policy under consideration, suppose that only a single community exists for which the policy truly matters and that it supports the status quo policy. Furthermore, virtually everyone that is affected by the policy belongs to this community. Individuals, of that community, who might consider speaking against the status quo would bear social costs. If these social costs are sufficiently high, there is a strong likelihood that many perspectives challenging the status quo policy will not, or will only weakly, enter the social discourse because of self-censorship. To be sure, the appropriate policy choice may well be the status quo policy, but the discourse that would nonetheless be stunted.
Most policy settings present community structures substantially less concentrated than monopolies. But when the structure of communities relevant to a particular issue is not diverse, perhaps because some communities exhibit some degree of policy-specific market power in favor of certain perspectives and at the expense of others, then some of the negative dynamics associated with the monopoly case can be expected. Hence, understanding the structure of communities would seem important to understanding the diversity of individual speech that is produced, which, in turn, affects the diversity of discourse. 39
Assessing the population of social communities is an issue-specific task. But we can identify some circumstances in which one might expect a social structure characterized by market power to be present. In a given jurisdiction, for example, some communities may not form because they lack enough supporters or because there are collective action problems relative to organization costs. 40 These possibilities suggest that it may be relatively more difficult to generate diverse communities in local or smaller jurisdictions. 41 Other settings deserving of attention include those in which the demographic characteristics of the population naturally confers market power on some groups and not others.
Over time, the dynamics of communities also change for many reasons including technological shifts. With respect to technological shifts, the Internet’s impact on community dynamics and on the diversity of speech in society is unclear. Communities that might have failed to form in the past, because there were too few potential members near enough to each other, may now form as virtual communities. This support for the “long-tail” of the distribution of interests would appear to be a democratizing force that reduces the impact of so-called market power among communities. But the Internet may also increase self-censorship within communities by increasing the social disapprobation associated with speech that is disfavored by the community in question.
IV. Conclusion
This commentary argues that dissent is encouraged or impeded by the institutional structures and social pressures that shape both the inputs to dissent and the incentives for its generation, respectively. With regard to inputs, the information monopoly held by a self-interested government over its own policies poses a problem to dissent that has only been partially remedied through regulation. With regard to generation, social pressures arising in communities in which a speaker is embedded may encourage speech or self-censorship for individuals whose views are consistent or inconsistent with those of the relevant communities, respectively.
Footnotes
Acknowledgements
The authors thank Loftus Becker, James Franklin, Stephen Utz, and an anonymous referee for helpful comments.
1.
The strength of those Constitutional protections lies in what is essentially a prohibition on content-based restrictions. R.A.V. v. St. Paul, 505 U.S. 377, 382 (1992) (“Content-based regulations are presumptively invalid …”).
2.
Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
3.
Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech (Eagan, MN: Thomson Reuters, 2013), vol. 1, § 2:14.
4.
Our economic approach draws on the work of Aaron Director, “The Parity of the Economic Market Place,” Journal of Law & Economics 7 (1964), 1–10; R.H. Coase, “The Market for Goods and the Market for Ideas,” American Economic Review 64(2) (1974), 384–91; and Richard Posner, “Free Speech in an Economic Perspective,” Suffolk University Law Review 20(1) (1986), 1–54. They argue that lessons from the marketplace for products can be usefully applied to the marketplace of ideas. A fundamental insight they share is that regulatory interventions in the marketplace of ideas should be justified on the basis of solving market failures. This positive use of government power to protect speech contrasts with the First Amendment’s restrictions on the negative use of government power to suppress speech.
5.
We focus on rational, fact-based speech because of its importance in making better decisions. We recognize, however, that such speech competes with many other kinds of speech which may also be influenced by facts but which are more heavily shaped by political ideals or moral beliefs.
6.
Despite these valuable efficiency-related properties, competitive markets do not remedy social concerns regarding resource distribution.
7.
Because the agency itself is also involved in the policy debate as a speaker, its control of key information inputs may enable it to “foreclose” the information to outsiders much like a product market where a vertically integrated firm might refuse to sell important inputs to firms against whom it competes in the downstream market. Given our focus on the government as information provider, its functioning as a speaker itself is beyond the scope of this commentary. Nevertheless the role of the government as speaker has received substantial attention within other contexts. See, e.g., Corey Brettschneider, When the State Speaks, What Should it Say? How Democracies Can Protect Expression and Promote Equality (Princeton, NJ: Princeton University Press, 2012), who advocates that the government has an important role in both protecting the speech of those with illiberal views as well as an obligation to speak out against it.
8.
A government agency can, for example, increase the transactions costs to those attempting to access information including through fees for copying material. Also, though beyond the scope of this commentary, agencies may enjoy some level of discretion regarding what information is produced. For simplicity, this commentary does not address information production incentives of the agency, but focuses instead on the release of information.
9.
5 U.S.C. § 552 (1966). Here we focus on federal law regarding freedom of information. Such laws also exist at the state level.
10.
U.S. Senate Committee of the Judiciary, Freedom of Information Act Source Book: Legislative Materials, Cases, Articles, Subcommittee on Administrative Practice and Procedure, 93d Cong., 2d Sess., Committee Print 98-389 (1974), p. 1.
11.
Ibid.
12.
Congressional Record, 89th Cong., 2d sess., 1966, Vol. 112, 13007–13027, p. 13023 (quoting Rep. Donald D. Clancy (2d Dist. Ohio)).
13.
U.S. Senate, Freedom Of Information Act Source Book: Legislative Materials, Cases, Articles, Ibid., 59 (Republican Policy Committee Statement on Freedom of Information Legislation, S. 1160).
14.
15.
U.S. House of Representatives. Committee on Oversight and Government Reform, FOIA is Broken: A Report, Staff Report, 114th Congress (January 11, 2016), p. ii.
16.
While FOIA permits law suits based on wrongful withholding of requested information, high costs and slow adjudication are significant deterrents. When challenged, agency determinations have been incorrect at least in part nearly a third of a time. See, e.g., Ted Bridis, “Obama Administration Sets New Record for Withholding FOIA Requests”; ProPublica, “Delayed, Denied, Dismissed: Failures on the FOIA Front” (July 21, 2016), 
.
17.
See, e.g., U.S. House of Representatives. Committee on Oversight and Government Reform, FOIA is Broken: A Report, Staff Report, 114th Congress (January 11, 2016), p. 3; Department of Homeland Security Office of Inspector General, The DHS Privacy Office Implementation of the Freedom of Information Act, OIG-11-67 (March 2011).
18.
Along these lines, the legislative history, with relatively few exceptions, does not explicitly acknowledge the key role of access to information in enabling dissent, although that role is implicit. The legislative history at issue includes FOIA as initially passed in 1966, as well as its primary amendments in 1974 (post-Watergate) and in 1996 (relating to electronic records). The statutes in question are, respectively, PL 89-487 (July 4, 1966), PL 93-502 (Nov. 21, 1974), and PL 104-231 (Oct. 2, 1996). The legislative histories, as indexed by Proquest Congressional, were reviewed. The authors are grateful to Ms. Anne Rajotte, Reference Librarian at the University of Connecticut School of Law, for researching this issue.
19.
Austin Sarat, “Terrorism, Dissent & Repression: An Introduction,” in Dissent in Dangerous Times (Austin Sarat, ed.) (Ann Arbor, MI: The University of Michigan Press, 2005), p. 2.
20.
Ibid., p. 4.
21.
Ibid.
22.
Jordan Siegel, “Can Foreign Firms Bond Themselves Effectively by Renting U.S. Securities Laws?,” Journal of Financial Economics 75 (2005), 319–59.
23.
John C. Coffee, Jr., “The Future of History: The Prospects for Global Convergence in Corporate Governance and its Implications,” Northwestern University Law Review 93 (1999), 641–708.
24.
Speech producers can be roughly divided into two groups: individuals and organizations. The application of an economic analysis to organizational actors is arguably more straightforward because those institutions typically have stronger monetary motivations. See, e.g., Matthew Gentzkow and Jesse M. Shapiro, “Competition and Truth in the Market for News,” Journal of Economic Perspectives 22(2) (2008), 133–54, who explore how greater competition in news sources affect the collection and reporting of truthful information. While they make a case that competition works, they also note that the models they use assume that consumers desire truth, rather than, for example, confirmation of existing viewpoints.
25.
Steven H. Shiffrin, The First Amendment, Democracy, and Romance (Cambridge, MA: Harvard University Press, 1990), p. 91.
26.
Ibid.
27.
Vincent Blasi, “Holmes and the Marketplace of Ideas,” Supreme Court Review 2004, 1–46, pp. 8–9. We interpret the arguments of the critics of the marketplace analogy as suggesting that the factors that motivate individuals to speak are different from what motivates organizations, rather than as questioning the use of cost-benefit logic which, after all, can always be justified under some set of individual preferences.
28.
See generally, Cass R. Sunstein, Why Societies Need Dissent (Cambridge, MA: Harvard University Press, 2003), pp. 74–95, in a chapter aptly titled “What Will the Neighbors Think?” See also, Hillary Greene, “Antitrust Censorship of Economic Protest,” Duke Law Journal 59 (2010), 1037–104, providing examples in which social pressure encourages speech in the form of a boycott.
29.
See supra note 4.
30.
It is necessary to distinguish disagreement with a relevant community, that is, speech that opposes a position held by the community, from dissent, which is speech that argues against current public policy. Disagreement with a community generates social costs and may or may not be dissent depending on whether the community opposes or supports current policy, respectively.
31.
Other benefits may include a more purely personal satisfaction associated with the act of self-expression itself. For the purposes of this commentary we consider such purely personal benefits to speech as distinct from social benefits.
32.
Sunstein, Why Societies Need Dissent, pp. 70–71, notes, for example, that: “[D]issenters are occasionally portrayed as disloyal, unpatriotic, even enemies of society. Free nations allow people to say what they want, but social pressures call for conformity, and sometimes those pressures are intense. Dissenters can find themselves unpopular or even unemployed.” See also, Posner, Free Speech in an Economic Perspective, p. 49, for a related discussion concerning public employees. Private dissent could be viewed as more consistent with being a team player, while public dissent may be embarrassing to the organization.
33.
To simplify discussion, we assume that an employee uses only nonconfidential information. We note, however, that such individuals might be among the most effective dissenters to current policy, because they are embedded in communities in which they have particular access to information and other resources.
34.
Charles M. Tiebout, “A Pure Theory of Local Expenditures,” Journal of Political Economy 65 (1956), 416–24.
35.
The diversity of the community is also relevant to the size of the costs and benefits. All things being equal, more homogeneous communities are more likely to have a net stronger reaction to a given position that disagrees with the views of the community.
36.
See generally, Albert O. Hirschman, Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge, MA: Harvard University Press, 1970).
37.
Hirschman illustrates the point in a market setting in which a consumer who is dissatisfied with a product can choose to buy a competing product, rather than complain to the original manufacturer. If the consumer exits, then he or she may be less likely to exercise voice. In a policy setting, except for relatively local issues, it may be difficult to escape the jurisdiction under which the policy is in force, and voice would seem to be encouraged. Ibid., pp. 33–4.
38.
While communities may be more or less intrinsically diverse, especially with respect to positions on a particular policy issue, it is important to acknowledge forces that encourage intracommunity conformity. Sunstein, in Why Societies Need Dissent, for example, argues that conformity may increase (i.e., reduction in dissent) within a group because of informational and reputational cascades. Informational cascades may occur because desires to conform lead to the suppression of contrary information which, in turn, promotes greater conformity. Reputational cascades may occur because the desire to conform leads many who disagree to be silent. This silence, in turn, may create an exaggerated sense of agreement within the community that may further reinforce the pressures towards conformity. Conformity with a group or a community is perhaps most problematic regarding dissent when the potential dissenter is internal to the organization to which the dissent would be directed and that organization has important, non-public information. Outside this immediate community, the challenge of within-group conformity would pose less of a problem if there was sufficient diversity of communities in society. Ibid., pp. 74–9.
39.
Finally, there is still the question of the role that such communities play in dissemination of ideas outside their community, especially when the communities, themselves, may facilitate dissemination, through, for example, a common website, newsletters, conferred status, or connections to media or, alternatively, insulate the members from other communities.
40.
Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (rev. edn) (Cambridge, MA: Harvard University Press, 1971).
41.
In The Tyranny of the Market: Why You Can’t Always Get What You Want (Cambridge, MA: Harvard University Press, 2007), p. viii, Joel Waldfogel explores how “people’s consumption options – and indeed their ensuing satisfaction as consumers – depend on the preferences of others. In particular, in markets where fixed costs are substantial and preferences differ across groups of consumers, individuals find more options – and more satisfaction – when more people share their preferences.” This idea of preference externalities as applied to communities that support dissenting views suggests that said communities will not always exist because there are insufficient numbers of people holding that view, because people are unaware that many share their views, or because of a collective action impediment to community formation. Grant McConnell, Private Power and American Democracy (New York: Alfred A. Knopf, 1966) makes a related argument regarding the relative susceptibility of local governments to domination by powerful groups.