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Marketplace of Ideas

MARKETPLACE OF IDEAS

The "marketplace of ideas" argument in first amendment jurisprudence was first enunciated in Justice oliver wendell holmes's dissenting opinion in abrams v. united states (1919):

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment.… While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.

Holmes's stirring words recall similar but distinct passages from john milton and john stuart mill. Extravagant as Holmes's passage is, it is in significant respects more careful than the implications of Milton's rhetorical question: "[W]ho ever knew truth put to the worse, in a free and open encounter?" Holmes did not claim that truth always or even usually emerges in the marketplace of ideas. Holmes's claim was more confined—that the best test of truth is the competition of the marketplace.

On the other hand, Milton spoke of a free and open encounter; Holmes spoke of the competition of the marketplace. A recurrent problem in First Amendment cases is that these two notions are not the same. Those who seek access to the broadcast media, as in red lion broadcasting v. fcc (1969), or to powerful newspapers, as in miami herald publishing co. v. tornillo (1974), argue that the competition of the marketplace is not free and open. They urge that truth cannot emerge in the market if the gate-keepers do not let it in. A more general criticism of the Holmes position is that the claim that the marketplace is the best test of truth cannot itself be tested without an independent test of truth, yet the argument by its terms denies any superior test of truth that is independent of the marketplace.

These criticisms aside, the question arises whether the marketplace argument overvalues truth. Holmes's view that the expression of opinion should be free until an immediate check is needed to "save the country" has never been adopted by the Supreme Court. Advocacy of illegal action, for example, may be restricted when it is directed to and likely to incite or produce imminent lawless action, whether or not the country itself is endangered. Indeed, if the marketplace argument extends to facts as well as opinions, it is clear that showings far more pedestrian than Holmes's proposed requirements are sufficient to justify repression. The expression of factual beliefs can be restricted in order to protect reputation or privacy, and, in the commercial sphere, to further any substantial government interest.

Nonetheless, the marketplace argument has been a powerful theme in First Amendment law. For example, some defamatory facts and all defamatory opinion are protected in order to guarantee the breathing space we need for robust, uninhibited, and wide-open debate. Ironically, however, the marketplace argument serves to restrict speech as well as to protect it. "Under our Constitution," said the Court in gertz v. robert welch, inc. (1974), "there is no such thing as a false idea," yet obscenity is divorced from speech protection because it is thought to be unnecessary for the expression of any idea. At bottom, First Amendment methodology is grounded in a paradox. Government must be restrained from imposing its views of truth. But government itself determines when this principle has been abandoned.

Steven Shiffrin
(1986)

Bibliography

Schauer, Frederick 1978 Language, Truth and the First Amendment: An Essay in Memory of Harry Canter. Virginia Law Review 64:263, 268–272.

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