In his 1919 book (dedicated to Holmes and Frankfurter) titled "Authority in the Modern State," Harold Laski wrote that it "is in the clash of idea that we shall find the means of truth. There is no other safeguard of progress."
Much the same idea found its way into Holmes's 1919 dissent in Abrams v. United States: "[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment."
As for the actual phrase marketplace of ideas, the credit for that precise turn of words in a Supreme Court opinion goes to Justice William O. Douglas as expressed in his concurrence in United States v. Rumely (1953): "Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas."
Whatever its origins, the marketplace metaphor has enjoyed enormous and continuing influence in First Amendment jurisprudence and scholarship. Still, it has had its fair share of critics from the likes of John Wigmore, Vincent Blasi, Cass Sunstein, and Joseph Blocher, among many others.
Enter now Greg Lukianoff (FIRE's President & CEO) and his own critical take on the marketplace metaphor. Below are a few excerpts from his article (Which was also read in full on the So to Speak podcast).
Control Over the Flow of Information
In closed societies like China, government officials have the power to stop the free flow of information if they believe it poses a threat of any kind, either real or imagined; and in authoritarian regimes, like China, the leaders of countries often see anything that might embarrass the country in the eyes of the world as a threat. By contrast, if the initial outbreak had happened in the United States, where the government has comparatively little legitimate power to control what citizens say, it’s doubtful that the disease would’ve gone unnoticed.
The 'Marketplace' Metaphor
For just over a hundred years, when we have talked about freedom of speech and the First Amendment, the dominant metaphor has been the “marketplace of ideas.” This metaphor was the brainchild of the eminently brainy Oliver Wendell Holmes in his “Great Dissent” in the 1919 Supreme Court case Abrams v. United States. Justice Holmes was late to appreciate the value of free speech, but became convinced of its value in no small part due to his Darwinist outlook on the world. He envisioned the marketplace of ideas as an arena in which “fit” ideas battle unfit ones for survival.
This metaphor is vivid, relatable, memorable … and wrong.
Okay, maybe not completely wrong, but rather dangerously incomplete. The marketplace of ideas metaphor makes a lot of sense in the political arena, where one group seeks to prevail over another. It perhaps makes even more sense in the world of academic scholarship, where scholars battle it out to figure out whose version of the world, from physics to ancient history, will prevail. But beyond that, the “marketplace” metaphor doesn’t really capture free speech’s most fundamental function: Freedom of speech gives you a fighting chance to know the world as it really is.
When I try to convey what I call the “pure informational theory of freedom of speech,” the first hurdle I run into is that people have a hard time distinguishing the veracity of the factual assertions people make from the fundamental importance of knowing what people really think.
Take, for example, people who are currently arguing that the coronavirus is just like the flu. While all available data indicates that the coronavirus is many times more lethal than the flu — possibly over 34 times more lethal, with one recent projection estimating a factor of ten — the value in someone expressing the opinion that the new virus is comparable to the flu is not the objective truth of the argument, but rather the ability to know what opinion an individual holds. This is not of small importance. Yes, arguments about facts are essential, but knowing that, say, 30% of your population holds damaging misconceptions is also of extraordinary importance.
The Marketplace Theory vs. the Informational Theory
Under the “marketplace of ideas” theory of freedom of speech, someone’s expression of an inaccurate belief could be seen as having zero or even negative value. Under the pure informational theory of freedom of speech, however, knowing that the inaccurate opinion exists has tremendous value, especially if it is widely held. While the marketplace of ideas metaphor does a good job of explaining that we must tolerate beliefs that are later proved to be false — because as a practical matter it often takes a great deal of time to learn that a belief is false, and sometimes you never know — it treats the existence of a misconception as an unimportant fact in and of itself. . . .
The Preferability of the Informational Approach
The unknowability of objective truth and the seeming immortality of bad ideas pose problems for the marketplace model, but they hold far less relevance for a pure informational theory of freedom of speech. Under pure informational theory, the goal of freedom of speech is not limited to establishing the objective “big-T Truth” about, say, the Platonic form of beauty, goodness, or squareness, but rather, the more mundane “little-T truth” of expressed opinion, preference, or belief. Knowing that individuals believe in conspiracy theories about lizard people is valuable, not because it might be true (call me unscientific, but I’m willing to call this one as obviously false), but because you might want to know that someone believes in lizard people before dating them or making them your primary care physician. On a larger scale (no pun intended), it’s useful to know whether paranoid delusions are common within a population. . . .
A Few Closing Words
There is more, much more, to Lukianoff's article and I strongly urge others to read it in its entirety since the above passages cannot do it the full justice it deserves. Meanwhile, here are a few closing words from his article:
We are faced with a threat that makes us feel small, helpless, and insignificant. We should take it as a reminder that there’s still so much we don’t yet know about the natural world we inhabit, and about biology, human nature, and group psychology. We will answer these questions and many more if we are willing to enter the looking-glass lab and see ourselves as we really are.
To do that requires a kind of radical openness rooted in an expanded understanding of the societal role of freedom of speech.
→ Greg Lukianoff has just launched his own FIRE-hosted blog called, “The Eternally Radical Idea.”
Free Speech in times of COVID-19
- "Miami Herald Reporter Excluded From COVID-19 Press Briefing," First Amendment Watch (March 30)
- Lionel Shriver: Coronavirus, Woody Allen & Defending Free Speech, YouTube, New Culture Forum Channel (March 21) (UK)
- Heidi J. Larson, "Suppressing Early Information on COVID-19 and Other Health Scares Can Aid Misinformation," World View (March 30)
- Eugene Volokh, "N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People," The Volokh Conspiracy (March 26)
- "Cambodia: COVID-19 Clampdown on Free Speech," Human Rights Watch (March 24)
- Brett Milano, Restricting Civil Liberties Amid the COVID-19 Pandemic, Harvard Law Today (March 21)
- Ken Paulson, "Fighting a Virus with Truth and Transparency," The Free Speech Center (March 18)
Related Health Advisory
- Jeremy Howard, "Add to List Simple DIY Masks Could Help Flatten the Curve. We Should All Wear them in public," Washington Post (March 28) (h/t: Susan Cohen & David Keating)
Knight First Amendment Institute's CDC FOIA Request
On March 19, the Knight First Amendment Institute at Columbia University submitted a request "under the Freedom of Information Act (5 U.S.C. §552) for copies of policies issued by the Centers for Disease Control and Prevention ('CDC') governing the circumstances in which CDC employees may communicate with members of the press and the public."
- "BuzzFeed Sues CDC and FEMA for Failing to Comply to FOIA Request for Coronavirus-Related Materials," First Amendment Watch (March 16)
Court Denies Cert. in Compelled Subsidy Case
The issues in question according to SCOTUSblog:
(1) Whether a levy that forces property owners to fund other individuals’ campaign donations implicates the First Amendment’s compelled-subsidy doctrine; and (2) whether a compelled subsidy of speech should be examined under rational-basis review, as the decision below concluded, or whether a higher standard of review is appropriate.
First Amendment Watch & FIRE Launch Campus Free Speech Orientation Program
This from their announcement:
Together, FIRE and FAW have developed a series of modules for universities to utilize during freshman orientation, first-year seminars, and other campus programming to teach new college students about their rights and about common free speech issues they may encounter during their time in school. Our hope is that public and private universities will adapt the lessons most relevant and applicable to their institutions to create a program tailored to their specific campus culture.
The move from high school to college, which exposes students to many new and controversial ideas and viewpoints, can be challenging for students. It is critically important to equip incoming students with knowledge of the First Amendment and how to exercise their own rights without violating the rights of others. Our orientation program does just that.
The first batch of modules covers six core topics:
- controversial speakers;
- talking across differences;
- handling offensive speech;
- unprotected speech;
- history of protest on campus; and
- academic freedom.
Each module lasts between 15 and 20 minutes and contains prepared remarks on the topic at hand, as well as a mix of additional resources, such as videos from national figures like President Barack Obama and Nadine Strossen, the former president of the ACLU; discussion questions; and skits for orientation leaders to perform — giving life to what can sometimes be difficult conversations.
For example, our academic freedom lesson contains sample questions for a faculty-led panel discussion, while the history of student protests module suggests letting students break into small groups to talk about their own experiences with protest and other expressive activity. Involving student leaders and faculty members in presenting these materials is a great way to show how freedom of expression affects many aspects of campus life and to get the whole university community passionate about their rights.
If you are an administrator in the field of student affairs or the first-year experience and are interested in adopting the orientation program — or if you are a student or faculty member looking to promote the use of our materials on campus — feel free to reach out to us at email@example.com. FIRE and FAW are more than happy to talk through how to best implement this program on your campus!
Related: College First Amendment Text Book
- Collins, Creeley, Hudson, & Farmer, "First Things First: A Modern Coursebook on Free Speech Fundamentals," (2020) (Kindle: $2.99 / paperback: $16.00)
Symposium on Norton's Government Speech Book
- Jack Balkin
- Sandy Levinson
- Mark Graber
- Caroline Mala Corbin
- Nelson Tebbe
- Nathan Cortez
- Josh Chafetz
- Richard Schragger
- Sonja R. West
- Frederick Schauer
→ David Hudson's review of Professor Norton's book will appear this Friday on FAN.
Forthcoming Book on Book Burning
- Richard Ovenden, "Burning the Books: A History of the Deliberate Destruction of Knowledge" (Belknap Press / Harvard University Press, Oct. 13, 2020). Description:
The director of the famed Bodleian Libraries at Oxford narrates the global history of the willful destruction―and surprising survival―of recorded knowledge over the past three millennia.
Libraries and archives have been attacked since ancient times but have been especially threatened in the modern era. Today the knowledge they safeguard faces purposeful destruction and willful neglect; deprived of funding, libraries are fighting for their very existence. Burning the Books recounts the history that brought us to this point.
Richard Ovenden describes the deliberate destruction of knowledge held in libraries and archives from ancient Alexandria to contemporary Sarajevo, from smashed Assyrian tablets in Iraq to the destroyed immigration documents of the UK Windrush generation. He examines both the motivations for these acts―political, religious, and cultural―and the broader themes that shape this history. He also looks at attempts to prevent and mitigate attacks on knowledge, exploring the efforts of librarians and archivists to preserve information, often risking their own lives in the process.
More than simply repositories for knowledge, libraries and archives inspire and inform citizens. In preserving notions of statehood recorded in such historical documents as the Declaration of Independence, libraries support the state itself. By preserving records of citizenship and records of the rights of citizens as enshrined in legal documents such as the Magna Carta and the decisions of the US Supreme Court, they support the rule of law. In Burning the Books, Ovenden takes a polemical stance on the social and political importance of the conservation and protection of knowledge, challenging governments in particular, but also society as a whole, to improve public policy and funding for these essential institutions.
Stephen Rohde Reviews New P. E. Moskowitz Book
- Stephen Rohde, "A Failed Case Against Free Speech," Los Angeles Review of Books (March 17) (reviewing "The Case Against Free Speech The First Amendment, Fascism, and the Future of Dissent" by P. E. Moskowitz)
So to Speak Video Interview with Joseph Blocher
Why is it important that we protect freedom of speech?
On today’s episode of So to Speak: The Free Speech Podcast, host Nico Perrino speaks with Duke University School of Law professor Joseph Blocher, who argues that one of the most common justifications for free speech — creating a “marketplace of ideas” in our search for truth — rests on unstable ground in our “post-truth” era. In his article, “Free Speech and Justified True Belief,” Blocher argues for a reframing of this epistemic theory of free speech around knowledge, rather than truth.
Forthcoming Scholarly Article by Cass Sunstein
- Cass Sunstein, "Does the Clear and Present Danger Test Survive Cost-Benefit Analysis?," Cornell Law Review (forthcoming 2020)
Five New Scholarly Articles
- Edward A. Zelinsky, "Applying the First Amendment to the Internal Revenue Code: Minnesota Voters Alliance and the Tax Law’s Regulation of Nonprofit Organizations’ Political Speech," Albany Law Review (2020)
- Eric T. Kasper & Troy Kozma, "Absolute Freedom of Opinion and Sentiment on All Subjects: John Stuart Mill’s Enduring (and Ever-Growing) Influence on the Supreme Court’s First Amendment Free Speech Jurisprudence," University of Massachusetts Law Review (2020)
- Katherine Shaw, "Speech, Intent, and the President," Cornell Law Review (2020)
- Eric Goldman, "Why Section 230 Is Better Than the First Amendment," Notre Dame Law Review Reflection (2020)
- Yonathan A. Arbel & Murat Mungan, "The Case Against Expanding Defamation Law," Alabama Law Review (2019)
Three New Posts From The Volokh Conspiracy
- "Can ProctorU Be Trusted With Students' Personal Data?" (March 28)
- "N.H. Court Rejects Challenge to Ban on Gatherings of 50 or More People" (March 26)
- "Lawyer Punished for Biased Comment About Judge in E-Mail to His Own Clients" (March 26)
More in the News
- Wendy Davis, "Proposed California Privacy Regs Violate First Amendment, Ad Groups Claim," Digital News Daily (March 31)
- "Texas Appeals Court Rejects Alex Jones’ Motion to Dismiss Heslin Defamation Suit," First Amendment Watch (March 27)
- Samantha Harris, "Court Holds University of Michigan Administrators Personally Liable for Violating Student’s Due Process Rights," FIRE (March 27)
- Alex Morey, "University of California System must be free to discuss coronavirus, COVID-19," FIRE (March 27)
- Adam Steinbaugh, "ProctorU threatens UC Santa Barbara faculty over criticism during coronavirus crisis," FIRE (March 26)
- David Hudson, "Illinois Appeals Court Upholds Social Media Restrictions as Part of Juvenile's Probation," The Free Speech Center (March 20)
- David Hudson, "9th Circuit Affirms Convictions of California Men for Islamic State Support, Rejecting 1st Amendment Claim," The Free Speech Center (March 20)
- Peggy McGlone, "The Newseum Still Exists. One of its Next Exhibits is in a Hotel Suite," The Washington Post (Feb. 26)
YouTube: Chemerinsky on Free Speech on Campus
- "What's Going On and Why? Free Speech on Campus" (Feb. 13)
Dean Chemerinsky was joined with the following University of California faculty panelists: Zizi Papacharissi (Communication and Political Science College of Liberal Arts and Sciences), Jane Rhodes (African American Studies College of Liberal Arts and Sciences), Steven Schwinn (John Marshall Law School) and Benjamin Superfine (Educational Policy Studies College of Education).
Strossen on Big Think, Hate Speech, & Media Platforms
- "Should Social Media Platforms Censor Hate Speech?" (March 21)
Video and Article: China's Censorship vs. Free Speech
- Zach Weissmueller, "China's Censorship Helped Start a Pandemic. Can Free Speech End It?," Reason (March 23)
It was one of the first signs that something far more troubling was happening in the city of Wuhan than the Chinese government was letting on.
When Li had tried to alert his colleagues via WeChat that he was witnessing an alarming spike in respiratory illnesses, the local government forced him and eight other people to sign apologetic admissions of "rumor-mongering." It was the beginning of a disinformation campaign that would help turn a crisis into a global pandemic.
Chinese officials later assured the public that they'd found no human-to-human transmissions of the viral pneumonia Li had posted about and that the disease was "preventable and controllable."
2019–2020 SCOTUS Term: Free Expression & Related Cases
Opinions or Judgments Handed Down
- Thompson v. Hebdon (per curiam with Ginsburg, J., statement concurring in remand)
- United States v. Sineneng-Smith (argued Feb 25)
- Carney v. Adams (March 25)
- United States Agency for International Development v. Alliance for Open Society International Inc. (March 25)
- Barr v. American Association of Political Consultants, Inc. (March 22)
- Chiafalo v. Washington (consolidated w/ Colorado Department of State v. Baca) (April 28)
- Fulton v. City of Philadelphia (TBD)
- Bruni v. City of Pittsburgh
- Waggy v. United States
- Waronker v. Hempstead Union Free School District
- Schmitt v. LaRose
- Austin v. Illinois
- Reisman v. Associated Faculties of the University of Maine
- National Association for Gun Rights, Inc. v. Mangan
- Institute for Free Speech v. Becerra
- Mckesson v. Doe
- Americans for Prosperity Foundation v. Becerra
- Thomas More Law Center v. Becerra
- Jarchow v. State Bar of Wisconsin
- Facebook, Inc. v. Duguid
- Arlene’s Flowers Inc. v. Washington
- Archdiocese of Washington v. Washington Metropolitan Area Transit Authority
- Price v. City of Chicago, Illinois
- Charter Communications, Inc. v. Gallion
- Elster v. City of Seattle
- Doe 1 v. Federal Election Commission
- Fleck v. Wetch
- New York Republican State Committee v. Securities and Exchange Commission
- EMW Women’s Surgical Center v. Meier
- Carter v. Massachusetts
- Capital Associated Industries Inc. v. Stein
- National Review, Inc. v. Mann (Alito, J., dissenting from denial of cert.)
- Competitive Enterprise Institute v. Mann (Alito, J., dissenting from denial of cert.)
- Libertarian National Committee Inc. v. Federal Election Commission
- Miller v. Inslee
- Buchanan v. Alexander
- Lipschultz v. Charter Advanced Services, LLC
- Gatehouse Media New York Holdings Inc. v. New York
First Amendment Related
- Dyroff v. Ultimate Software Group Inc. (interpretation of Section 230(c)(1))
- Force v. Facebook Inc. (interpretation of Section 230(c)(1))
First Amendment Related: Cert. Denied
- Olivas-Motta v. Barr (void for vagueness, “moral turpitude”)
Last Scheduled FAN