At least five basic values might be served by a robust free speech principle: (1) individual autonomy; (2) truth seeking; (3) self-government; (4) the checking of abuses of power; (5) the promotion of good character. Free speech might serve one or more of these values by functioning in at least three different ways: (1) as a privileged activity; (2) as a social mechanism; (3) as a cultural force. My contention is that the conventional understanding of the most familiar metaphor in the First Amendment lexicon, the "marketplace of ideas," has had the undesirable effect of focusing attention too much on the truth seeking and self-government values and on the function of free speech as a social mechanism.
The detriment in this emphasis is threefold. First, the case for a high level of protection for free speech has been weakened by being made to depend too much on unconvincing claims regarding how the phenomenon of provocative speech followed by countervailing "more speech" produces a satisfactory process of collective deliberation. Second, the identification of the freedom of speech with the ideal of a well-functioning market in ideas has generated distracting and dangerous regulatory proposals that attempt to redistribute communicative power as a means of realizing that ideal. Third, as a result of viewing free speech primarily as a plebiscitary mechanism designed to produce collective understanding and political legitimacy, we have failed to appreciate how it serves as a cultural force that contributes to the control of abuses of power and the promotion of adaptive character traits.
First Amendment | Law
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Vincent A. Blasi,
Holmes and the Marketplace of Ideas,
Sup. Ct. Rev.
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