Document Type

Article

Publication Date

2019

Abstract

JUSTICE Oliver Wendell Holmes Jr.'s “marketplace of ideas” analogy continues to deeply influence First Amendment doctrine. It provides a rational substratum upon which the political or self-realization characterizations of free speech are built. However, typically overlooked is the Social Darwinistic root of the Justice's thought. He championed the spread of ideas and the political sway of majority opinions. That analytical insight is key to many of the Supreme Court's free speech precedents. On the one hand, the concept is invaluable for defending free discussions about philosophy, political science, the arts, humanities, pedagogy, and social sciences. In these areas, the marketplace of thoughtful expression will give rise to searching wisdom, understanding, culture, taste, achievement, scientific truth, political action, and creativity. On the other hand, market political leverage can drown out minority voices. According to a Holmesian relativist understanding, populist versions of truth can and should dominate law and its formation. To his mind, the judiciary lacks any power to check “proletarian dictatorship” from forming in the country. Left unqualified, his political perspective on truth allows for abuses of representative governance. In the second decade of the twenty-first century, democratic institutions are being exploited by populist autocrats like Hungary's Viktor Orban or Turkey's Recep Tayyip Erdogan. Populism in the United States, on the right and on the left of the political spectrum, is alarmingly flirting with xenophobia, racism, and anti-Semitism. That political reality should give us some pause about expecting libertarianism to yield a just truth.

Justice Holmes's Social Darwinistic approach to the marketplace of ideas is fraught with callous notions of preference for powerful speakers. It stands in opposition to a more equalitarian understanding of markets, which recognizes the policy balance governments sometimes undertake to advance important interests that protect open dialogue, while empowering indigent and powerless individuals to join the conversation. Truth and falsity are manipulable concepts, not generally something courts want to resolve. Falsehood is inevitable in conversation. At a minimum, mistakes are rampant in discourse, therefore as New York Times Co. v. Sullivan championed a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open. People living in a deliberative democracy must be given space to joke, speak figuratively, and hyperbolically criticize government without risk of censorship or punishment. Government lacks the authority to require parties to adopt its version of truth.

This essay first provides a brief doctrinal trajectory of how the Court developed its marketplace of ideas doctrine. It then critiques the construct's amenability to authoritarian doctrines. At its core, this essay argues against the libertarian view of free speech and for the adoption of a limited balancing test that, along with precedents, requires judges to weigh speech, public policy, a means/ends analysis, and the availability of less intrusive ways of achieving the narrowly tailored government aims.

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