Knowledge And Decisions

The fact that different costs and benefits must be balanced does not in itself imply who must balance them — or even that there must be a single balance for all, or a unitary viewpoint (one “we”) from which the issue is categorically resolved. Each individual who chooses whether or not to live, work, or shop in a privately owned development can balance the costs of those rules against the benefits of living, working, or shopping there, just as people individually balance the costs of participating in other activities under privately prescribed rules (e.g., eating in a restaurant that requires a coat and tie, attending a stage performance where cameras are forbidden, living in an apartment building that bans pets). The court here went beyond the function of carving out boundaries, within which other institutions could make specific decisions, to making the substance of the decision itself. In doing so, it transformed an individual incremental decision into a categorical decision, confiscated a portion of one party’s assets and transferred them to another (a transfer recognized as such by the author of the decision²⁴), and substituted its evaluation of the costs and benefits of access to communications for the evaluations of those living, working, and shopping where the leaflets were being distributed.

From a social decision-making point of view, it is a misstatement of the issue to represent the opposing interests as being the property owner and the leaflet dispenser. The owner of a development is a middleman, whose own direct interest is in seeking profit, and whose specific actions in his role as middleman represent transmissions of the perceived preferences of other people — tenants and shoppers — who are the sources of his profits. The real balance is between one individual’s desire for an audience and the prospective audience’s willingness to play that role. How important another channel of communication is to the audience is incrementally variable, according to each individual’s already existing access to television, newspapers, magazines, mail advertisements, lectures, rallies — and other places and times where leaflets can be handed out and received.

The prospective audience’s incremental preference for tranquility where they live or shop — undisturbed by messages or solicitations to read messages — may be of greater value to them than any losses they suffer from not receiving such messages at this particular time and place, or the value to the soliciting party of reaching them at this time and place, or even the social value of “free speech” as an input into political and other decision-making processes. But no such balancing takes place through legal processes conferring “rights” to uncompensated transfers of benefits.

Both the solicitor and the solicited have alternative channels of communication. To claim that the costs of some alternative channels are “prohibitive” is to miss the whole point of costs — which is precisely to be prohibitive. Costs transmit inherent limitations of resources compared to the desires for them, but do not create this fundamental disproportionality. All costs are prohibitive to some degree, and virtually no costs are prohibitive absolutely.²⁵ Clearly, the costs of passing out leaflets would pay for direct mailing instead, or for newspaper ads, telephone solicitation, public gatherings, etc.

“Free speech” in the sense of speech free of governmental control does not imply inexpensive message transmission, any more than the right of privacy implies subsidized window shades. It is especially grotesque when the subsidy to message-senders takes the form of forcing others to be an unwilling audience, and where the small number of solicitors are called “the people” while the large number of those solicited are summarized through their intermediary as “the property owner.” Even the dissenters in Marsh v. Alabama posed the issue in those terms.²⁶

More basic than the question of the probable desires of a prospective audience is the question of who shall decide what those desires are, either absolutely or relative to the desires of message senders. That is, what decision-making process can best make that assessment — and revise it if necessary? Apparently some people were presumed to be receptive, or the leaflet distribution would not have been undertaken. By the same token, others were presumed to want to be left alone, or the solicitation ban and the lawsuit to enforce it would not have been undertaken. Therefore, there is a question not only of the estimated numbers and respective social costs of one course of action versus another, but also a fundamental question of how an initially-mistaken perception either way would be corrected by feedback under various institutional processes.