Excessive Speech, Civility Norms, and the Clucking Theorem, by Barak Orbach & Frances R. Sjoberg, Connecticut Law Review, Vol. 44, No. 1, 2011.
The classic free-speech axiom is that the cure for bad speech is more speech. This Article considers the possible social costs of speech, focusing on speech strategies that impede and degrade change, even if the speech itself is socially acceptable. The Article introduces The Clucking Theorem, which states that human nature unnecessarily inflates the costs of processes related to proposed legal changes. Clucking is a form of externality – it is an action that inflates the social costs associated with discourse over a new or revised norm. It also alters transitions, degrades the quality of reforms, impedes certain changes, and facilitates undesirable transitions. This Article’s inquiry into the characteristics of clucking is supported by a qualitative study of debates and disputes over changes to backyard chicken laws in more than one hundred localities between 2007 and 2010. This study emphasizes that certain clucking characteristics are unrelated to the significance of the issue at stake, the size of the population, or the innovation in the proposed change. In synthesizing the study, this Article identifies five categories of individuals who engage in clucking: losers, winners, status quo enforcers, political opportunists, and human roosters. Finally, this Article stresses that civility norms and procedural rules are viable means to reduce the social costs of clucking.