'Marketplace of ideas' turns 100 — it's not what it used to be

'Marketplace of ideas' turns 100 — it's not what it used to be

Next week marks the 100th anniversary of the birth of the “marketplace of ideas” theory of the First Amendment. 

I probably won’t celebrate. Not because it’s weird to celebrate Supreme Court decision anniversaries, because I sometimes do. And not because the anniversary is unimportant. If any decision deserves a celebration, it might just be the marketplace approach, which has become the Supreme Court’s primary tool for explaining why we should protect free speech.

The marketplace approach assumes that, given access to a full range of ideas that are generally not limited by the government, rational citizens will accept ideas that are true and reject those that are false.

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That’s what makes this such a gloomy anniversary. The truth is not what it used to be. We have turned our Twitter feeds, Facebook accounts, and YouTube subscriptions into echo chambers that only reinforce our pre-existing beliefs. Partisan panels on cable TV deliver our news. We have divided ourselves into ideologically reinforcing groups. 

Add to these changes the emergence of AI communicators. Bots are drowning out human voices and creating the appearances of strongly coalesced opinions that are more Astroturf than grass roots.

At the same time, algorithms have become powerful tools in determining what shows up in online searches and social media feeds, ultimately influencing the ideas we do and do not encounter. Now, deep fakes, believable videos of people doing and saying things they never said or did, are emerging as even more powerful tools for misleading people and undermining truth.

These changes are having a profound influence on truth and any semblance of a marketplace in which people encounter and evaluate ideas. Twenty first century marketplaces have become more like specialty shops, which trade in only a few, pre-approved ideas within their community. They are generally not open to new ideas.

So, what would spruce up this century celebration? 1) We could change our information-filtering habits and make it a point to receive news and information from respected news sources and diverse voices. 2) We could also change what we mean when we refer to a marketplace of ideas. 

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The Supreme Court has traditionally associated the marketplace metaphor with the Enlightenment ideas associated with John Milton, John Locke and Adam SmithDavid (Adam) Adam SmithWhite House, Congress near deal to give 12 weeks paid parental leave to all federal workers Overnight Energy: Pelosi vows bold action to counter 'existential' climate threat | Trump jokes new light bulbs don't make him look as good | 'Forever chemicals' measure pulled from defense bill Overnight Defense: Suspect in Pensacola shooting identified as Saudi aviation student | Trump speaks with Saudi king after shooting | Esper denies considering 14K deployment to Mideast MORE.

Milton wrote, in Areopagitca: “Where there is much desire to learn, there of necessity will be much arguing, much writing, many opinions: for opinion in good men is but knowledge in the making.”

The Supreme Court has taken this and other sentiments about truth and the rationality of people to mean the marketplace protects the discovery of an absolute truth, which is the same for all. Justices have also used the theory to explain that people are rational and they should be able to make sense of what is true and false.

In the landmark New York Times v. Sullivan defamation case, the Court used marketplace thinking to explain why attacks on public officials should generally be protected. 

The First Amendment, the Court reasoned, was “fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

These words remain crucial, but we don’t have to stick with the same old assumptions justices have wedded to the marketplace approach. 

In fact, Justice Oliver Wendell Holmes, who introduced the marketplace concept into the Court’s vocabulary in 1919, did not believe in absolute truth or human rationality. The Civil War veteran, who was wounded three different times in the war, wrote to friends that absolute truth is a “mirage.” 

So, when he made the Court’s very first argument for free speech, in a losing battle where the majority of the Court upheld sedition charges against a protester, he did so with a far more pragmatic version of “truth” in mind.

He wrote, “The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” He concluded this was “the theory of our Constitution.” 

We still need free expression. And we still need a powerful metaphor like the marketplace to rationalize and support it. Maybe all the marketplace needs on this 100th anniversary is a bit of a makeover.

What if we shifted the understanding of truth to be more subjective, allowing that information reaches people in different ways and that each person’s experiences do a lot to influence how they see the world around them. 

We could also shift the focus of the marketplace approach to focusing on safeguarding the flow of information. Rather than protecting a battle between truth and falsity, in the Miltonian sense that justices have tended to adopt, perhaps we contend that the marketplace protects each person’s ability to encounter information and engage with others so that truth, in the form of understandings and agreements, can emerge.

In this sense, we can look toward a multiverse of marketplaces that, though often ideologically divided, can form coalitions through discourse. These coalitions can work together to create change in democratic society.

Jared Schroeder is an assistant professor of journalism at Southern Methodist University, where he specializes in First Amendment law. He is the author of "The Press Clause and Digital Technology’s Fourth Wave."