The “marketplace of ideas” embodies a simple First Amendment concept: If everyone can speak freely, then the best ideas will rise to the top and be implemented, to the benefit of all of society.
The marketplace concept — which today could be termed the “digital town square” — goes hand in hand with the discussion, debate, and decisions that are the hallmark of a self-governing democratic republic even as it requires all five First Amendment freedoms to fully function.
The marketplace of ideas is how the First Amendment functions
Freedom of religion is necessary for an individual to fully explore ideas and to seek their version of truth. Freedom of speech and freedom of the press are necessary to convey those individual ideas to others for comparison, consideration, and evaluation. And assembly and petition are a direct means for people participating in self-governance to advance those ideas that they determine are the best.
The concept is easy to describe but can be difficult to maintain. Visualized as an actual marketplace, various merchant stands sell all manner of goods. The theory is that if the government does not interfere, then shoppers will select the best products to meet their needs. But permitting all vendors and their wares has been challenging.
Should the government be able to shut down stands it considers dangerous or fraudulent? Some scholars argue that giving government too much power to regulate the marketplace of ideas could give rise to the “tyranny of the majority,” where less-popular views would be excluded or ignored by those in power, preventing full consideration.
And what of a merchant who proposes burning down the market and starting over? At various times in U.S. history, prosecutors have targeted those who supported socialist or communist views. Critics said holding those views meant supporting the violent overthrow of the American form of government, and as such, it was too dangerous to permit free and open discussion in the marketplace of ideas.
In support of a very open digital town square, advocates say it allows us to regularly test our individual and shared values, and also serve as a “safety valve” that can help tamp down frustrations that lead to violent outbursts.
Where did the marketplace of ideas concept come from?
The first legal expression of the marketplace of ideas concept came in the dissenting opinion by U.S. Supreme Court Justice Oliver Wendell Holmes in Abrams v. United States (1919). The majority of the court upheld the Espionage Act convictions of antiwar activists who encouraged munitions workers to strike in opposition to U.S. participation in World War I. Holmes wrote that “the ultimate good desired is better reached by free trade in ideas … the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
The roots of Holmes’ view go back centuries. In 1644, English philosopher John Milton proposed in his essay “Areopagitica,” “Let (Truth) and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter? … Give me the liberty to know, to utter, and to argue freely according to conscience, above all liberties.”
And while he didn’t use the actual term, market competition of ideas was advanced in an 1859 essay, “On Liberty,” by English writer John Stuart Mill. He favored the free flow of ideas as necessary to arriving at truth. Anything less was flawed: “If all mankind minus one, were of one opinion … mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
How has the Supreme Court used the marketplace of ideas concept in First Amendment cases?
The marketplace of ideas concept has been the foundation of multiple Supreme Court decisions, from rulings on criminal prosecutions to speech on the internet and from trademark approval to community sign regulations. Here are two such opinions:
- In 1997, the Supreme Court ruled in Reno v. ACLU that the federal Communications Decency Act adopted a year earlier was an unconstitutional restriction on free speech. The court’s opinion said, “The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”
- Justice Stephen Breyer directly used the concept by name in a 2015 concurring opinion in Reed et al. v. Town of Gilbert, Arizona, et al. He wrote that “whenever government disfavors one kind of speech, it places that speech at a disadvantage, potentially interfering with the free marketplace of ideas and with an individual’s ability to express thoughts and ideas that can help that individual determine the kind of society in which he wishes to live, help shape that society, and help define his place within it.”
This article was published by the Freedom Forum.
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