It was just one line, nearly a throwaway; technically a subordinate clause. Yet that one clause from Oliver Wendell Holmes’s Abrams dissent breathed life into a metaphor, the “marketplace of ideas,” whose lasting power is undeniable. Nor is it difficult to understand why. Yes, it may be incomplete, inaccurate, and possibly cribbed from John Stuart Mill, but the metaphor matches something we all see. Ideas and ideological programs are out there looking for adherents or “buyers.” In Holmes’s time, progressives, socialists, and fascists courted supporters, just as similar groups do now. Specific ideas like the flat tax or the legalization of marijuana seek their own buyers and usually go nowhere but may suddenly catch on, just as in the world of real products.
I leave it to others to criticize the metaphor. What I want to suggest here is that it isn’t taken seriously enough. Despite all the talk, the First Amendment offers incomplete protection for the marketplace of ideas. If we were halfway serious about the premise that the marketplace of ideas needs protection by courts, we’d be interested in all the ways that government or private parties can distort or block competition. But the First Amendment has no interest in most such distortions – especially those created by disinformation campaigns, which have rapidly become the speech control technique of choice in the early 21st century.
First Amendment | Law
Disinformation in the Marketplace of Ideas,
Seton Hall L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3218