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  • 2000
  • Working Paper
  • HBS Working Paper Series

The Logic of the First Amendment

By: Clifford G. Holderness, Michael C. Jensen and William H. Meckling
  • Format:Print
  • | Language:English
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Abstract

We develop a framework that is applicable to all freedom of expression disputes. Our framework is based on the meaning of freedom which is based on the meaning of scarcity, and which, in turn, is based on the existence of physical incompatibilities. To maximize freedom, one must differentiate between scarce and non-scarce rights. Scarce rights can not be granted to everyone because of natural limitations caused by physical incompatibilities. If one person burns a tree for warmth, another cannot use the tree to build a house. Conflicts caused by such physical incompatibilities are resolved peacefully by giving exclusionary rights in the physical use of the tree to a single, private party. These are scarce rights because more than one person cannot use the tree when there are physical incompatibilities. Non-scarce rights, in contrast, can be granted to everyone. The contents of one's speech, for example, in no way limits what other people may say or do. To maximize freedom, each scarce right must be assigned to some individual person, and all non-scarce rights should be assigned to everyone. We use this framework to provide an integrated and consistent analysis of prominent Supreme Court rulings on free speech issues, including public access to government and private property, symbolic speech (including flag burning), libel, and obscenity.

Keywords

Rights; Courts and Trials; Judgments; Property; Conflict and Resolution; United States

Citation

Holderness, Clifford G., Michael C. Jensen, and William H. Meckling. "The Logic of the First Amendment." Harvard Business School Working Paper, No. 00-064, March 2000.
  • SSRN
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About The Author

Michael C. Jensen

→More Publications

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More from the Authors
  • Putting Integrity into Finance: A Purely Positive Approach By: Werner Erhard and Michael C. Jensen
  • Author-Level Eigenfactor Metrics: Evaluating the Influence of Authors, Institutions and Countries within the SSRN community By: Jevin D. West, Michael C. Jensen, Ralph J. Dandrea, Gregg Gordon and Carl T. Bergstrom
  • Pioneers in Finance: An Interview with Michael C. Jensen - Part 1 By: Michael C. Jensen and Ralph A. Walkling
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