Economy of pain: When to regulate offensive expression

Abstract

Expression that assaults another’s identity or human dignity, as with hate speech, presents a vexing case for regulatory protection. This article proposes a method of expressive elasticity as a means to balance individual protection with expressive liberty in a rigorous and neutral manner. The method of expressive elasticity treats harm to individual recipients as a function of social utility. To maintain neutrality on the content of ideas, social utility is defined as the optimal number of individual participants in public discourse. Offensive expression should be regulated only when it reasonably lessens the likely amount of future contributors to the marketplace of ideas. The object is to restrict offensive expression that signals a hostile or prejudiced public space that a reasonable recipient would recoil from. Elasticity generally refers to the responsiveness of one variable to a change in another variable. Elasticity, as util ized in this article, is a view to the responsiveness of individual participation to the amount of external harm received. When individuals can absorb the external harm and their potential participation remains unchanged, there should be no government intervention. Elasticity should be recognized as inversely related to the private costs imposed on offensive expression. When a speaker is publicly reviled because of a hateful message, then the private marketplace has appropriately indicated that the targeted person is not the one devalued by society. When the private costs for hateful expression are insufficient, however, public sanction may be necessary to ensure optimal levels of future participation.