Marketplace of Ideas Theory

The marketplace of ideas theory stands for the notion that, with minimal government intervention—a laissez faire approach to the regulation of speech and expression—ideas, theories, propositions, and movements will succeed or fail on their own merits. Left to their own rational devices, free individuals have the discerning capacity to sift through competing proposals in an open environment of deliberation and exchange, allowing truth, or the best possible results, to be realized in the end.

The Biography of the Marketplace of Ideas

While obviously predating modern economic (marketplace) theory, John Milton’s Areopagitica—imagining a ‘‘contest’’ of forces and arguing against Parliament’s efforts to license the press—offered the initial theoretical predicate for modern marketplace theory. John Stuart Mill expanded on the notion, arguing that free expression was valuable on individual and social grounds because it served to develop and sustain the rational capacity of man and, in an instrumental sense, facilitated the search for truth. The influence of Milton and Mill is evident in Justice Oliver Wendell Holmes, Jr.’s dissent in Abrams v. United States, 250 U.S. 616 (1919), the case that formally established the marketplace of ideas as a legal concept.

Reversing course from recent opinions in which he had expressed support for state restrictions on speech tending toward a ‘‘clear and present danger,’’ Justice Holmes contended that that the distribution of fliers expressing hostility to the United States and urging resistance to the war effort in the case of Abrams v. United States, 250 U.S. 616 (1919) did not constitute the sort of danger that Congress had the right to regulate. On a theoretical level, however, the justice observed that while it may be ‘‘perfectly logical—or a kind of human inclination—to stamp out dissent and muffle the opposition, one should be wary of such aspirations of certainty. Indeed, he suggested:

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 for truth is the power of the 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.

Such a notion, Justice Holmes argued, ‘‘. . . is the theory of our Constitution,’’ acknowledging—in the spirit of marketplace logic itself—that ‘‘[i]t is an experiment, as all life is an experiment.’’ Thus, with this turn of phrase, Justice Holmes carved into law what would become the defining metaphor for freedom of speech jurisprudence in the twentieth century.

Critics of the Marketplace Theory

Critics of marketplace theory question its assumptions and the potential for its actualization, focusing primarily on the soundness of the economic analogy; the nature of input introduced to the market; and the essence of the output rendered through the course of these exchanges. With respect to the ‘‘market’’ metaphor and incumbent imagery, some question whether the laws and values governing ‘‘trade’’ in goods and services in the financial realm should properly be extended to the social realm and the ‘‘trade’’ in ideas.

When buying products in the economic market, this argument goes, human beings make choices based on tastes and preferences, but in the marketplace of ideas, the same rational decision-making capacity is expected to be the engine that drives the ‘‘exchange’’—allowing one to distinguish true from false and good from bad. Thus, it is essential that individuals be willing and able to apply their faculties in such a manner. Scholars of communications and cognitive processes question this assumption by pointing out that humans are much like ‘‘pack rats.’’ They gather bits and pieces of information as they follow a political campaign, for example, but in the mental storage of data they tend to mix that which they get from the news and that which they get from partisan advertisements. In other words, ‘‘packaging’’ matters as well, and perhaps they are not fully aware of the influences skewing their selections and perceptions.

Other critics focus their attention on the nature, extent, and potential of the input that is introduced to the market arena. Importantly, for the full range of social benefits to be achieved through individual-level exchanges, consumers must willingly come to market; they must desire to peddle their wares (ideas). But, in an increasingly complicated and global society, for example, citizens often lack the public or common place for meeting and exchanging ideas (what the Greeks knew as the ‘‘agora’’). On another level, what about input that has the potential to disrupt or destroy the marketplace? Should incendiary or threatening ideas be allowed to compete as well? Does the state have a legitimate role in protecting the market from itself? That is, as with the economy, is government regulation of market contributions sometimes called for in the interest of promoting freer, fuller, and safer exchanges of ideas?

Finally, with regard to marketplace output, assuming that there is such a thing as ‘‘truth’’—the end to which exchanges are putatively directed, critics wonder how one knows that this result has arrived. If it is the process of exchange that is to yield the substantive product of truth, then is it simply that that which wins out in the end is, by definition, ‘‘true’’? Is something good by this logic because it has won acceptance, or has it been accepted because it is good? If the intention of the marketplace is to allow for petitioning and persuasion, then is the market not so much a ‘‘test for truth’’ as it is a barometer of popularity?

Such criticism notwithstanding, the idea of a marketplace— emphasizing individual liberty, choice, possibility, and the potential for aggregate social benefits resulting from such ‘‘free exchanges’’—defines the way in which the Supreme Court and citizens generally think about issues of freedom of expression in the United States.

BRIAN K. PINAIRE

References and Further Reading

• Cole, David, Agon at Agora: Creative Misreadings in the First Amendment Tradition, Yale Law Journal 95 (1986): 857.
• Ingber, Stanley, The Marketplace of Ideas: A Legitimizing Myth, Duke Law Journal (1984): 1–90.
• Pinaire, Brian K., A Funny Thing Happened on the Way to the Market: The Supreme Court and Political Speech in the Electoral Process, The Journal of Law & Politics 17 (Summer 2001): 489–551
• Smolla, Rodney. Free Speech in an Open Society. New York: Alfred Knopf, 1992.

Cases and Statutes Cited

• Abrams v. United States, 250 U.S. 616 (1919)

See also Abrams v. United States, 250 U.S. 616 (1919); Freedom of Speech: Modern Period (1917–Present); Holmes, Oliver Wendell, Jr.; Mill, John Stuart; Schenck v. United States, 249 U.S. 47 (1919)