Probability thresholds.

Iowa Law Review | May 1, 2007| | Copyright

ABSTRACT: Scholars and lower courts have traditionally operated under the belief that cases involving direct tradeoffs between free speech and national security call for the application of straightforward cost-benefit analysis. But the Supreme Court has refused to adhere to this approach, instead deciding difficult liberty-versus-security questions with reference to a "probability threshold"--a doctrinal floor defining how likely a potential threat must be in order to register in the constitutional calculus. This doctrinal innovation has served as a necessary corrective to ...

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