Rather, it seeks only to demonstrate that legislative and judicial abridgments of most expression rights would be proscribed a priori by a rational rule of constitutional contract.
utility-maximizing) individuals would adopt in order to protect private expression rights against arbitrary and coercive abridgment by the state.
Expression of this sort reduces the welfare of all individuals in the long run, and so is left vulnerable both to private tort action and to statutory abridgment in situations where abridgment is more efficient on balance than piecemeal litigation.
Perhaps the most practical conclusion to be drawn from arguments about public goods and communal benefits is that some expression rights reside in a "commons" where no single individual or distributional coalition has a sufficient interest to defend them against arbitrary abridgment by the state.
The central issue of contemporary thinking (naked rent-seeking aside) is whether individuals are better served by a constitutional doctrine that places private rights of expression up for political grabs (along with most other property rights) or, alternatively, by a doctrine that protects expression rights against arbitrary abridgment by the state.
Third, decision makers and private parties alike have an incentive to capture ideological rents by imposing private moral preferences on others through the abridgment of private rights in everyday speech.
Because expression rights are essential to the working of a market system, it follows that all speech that fosters, or is the subject of, free and orderly market process has a positive claim to constitutional protection against impairment and abridgment by the state.
The "first amendment" rule establishes a presumption that the abridgment of political expression rights is per se unconstitutional.
It also underpins the abridgment of "commercial" expression rights and has been broadened ad hoc to permit the abridgment of other expression rights.
As the creation, acquisition, exchange, and consumption of information become increasingly important aspects of social, economic, and political activity, it is essential that the property rights with which individuals engage in those activities be recognized, in some cases delineated, and in all cases protected against arbitrary abridgment by the state.
652 (1925), the Court held that "freedom of speech and of the press--which are protected by the 1st Amendment from abridgment by Congress--are among the fundamental personal rights and liberties protected by the due process clause of the 14th Amendment from impairment by the states" (666).