Pragmatism versus Purposivism in First Amendment Analysis

In The First Amendment's Purpose,' Jed Rubenfeld sets against the "costbenefit balancing" approach to free speech issues, 2 with me as spokesman, 3 an approach that forswears balancing in favor of inquiry into legislative or regulatory purpose ("purposivism").From certain "paradigm cases" 4 -by which he means constitutional interpretations today uniformly accepted as valid-he infers three things: The First Amendment 5 forbids all regulation intended to limit the expression of opinion ("no one can be punished for expressing himself on a matter of opinion" 6 ), regardless of consequences.It forbids no regulation of expression, again regardless of consequences, that is not so intended.And it allows all false factual assertions to be punished.The contrast between Rubenfeld's approach and the pragmatic approach to free speech and other legal issues, an approach that I have defended, 7 is stark, and provides the stimulus for this paper.