I’ll leave the free speech aspects of Jack Balkin’s post to David, but I do want to comment on the case Balkin makes for public universities. Balkin’s view of free speech necessitates public infrastructure including “free public education.” “Without public universities, our cultural life would be much poorer,” Balkin suggests, because the private marketplace will produce a suboptimal amount of educational opportunity and will fail to generate the same “positive public externalities” generated by public universities. Even accepting Balkin’s assumption about the inadequacy of private markets to produce these social goods, the need for public universities does not follow from his argument.
If private markets under-produce a given good or service — something I’ll accept in this case for the sake of argument — this may justify public support for the good or service in question. It does not follow, however, that the government should necessarily provide the good or service directly. Put another way, if Balkin believes markets will underproduce the positive public externalities generated by universities, he offers no reason why public support for higher education, and those features of universities that produce the externalities with which he is concerned, would not be sufficient to overcome the alleged market failure. Indeed, there are many reasons to believe that a subsidy for a given good or service will be more efficient or effective than the government’s direct provision of the good in question. In this specific case, there are many reasons why publicly-funded private institutions could be far superior than equivalent public institutions, not the least being the corrosive impact political control can have on such institutions.
I would also note that the existence of a “market failure” — in this case the under-provision of positive, education-related externalities — does not, in itself, justify government intervention. For while markets may fail to produce theoretically optimal outcomes, so too do government programs. The relevant comparison must always be between the admittedly imperfect private marketplace and the equally — if not more — imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.
It is also worth noting that there is increasing evidence that government support for various public goods tends to correlate with decreased private support for such goods. Government social welfare programs, for example, appear to discourage or crowd out some level of private giving for such purposes. Thus, even if the government can provide, or subsidize, a given good or service relatively efficiently (a somewhat heroic assumption in my view), in some instances it may still produce a less-optimal outcome than relying on admittedly imperfect markets.
In the end, if there is a case for public universities — and not simply public support for higher education — I do not think Balkin has provided it (or, at least, not here).
UPDATE: Glen Whitman piles on.
UPDATE: I respond to Balkin’s response here.
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