Can You Have Too Much of a Good Thing? The Modern Marketplace of Ideas.

• Author: Jones, Rachael L.
• Position: Symposium: Truth, Trust and the First Amendment in the Digital Age

1. INTRODUCTION

   Imagine it: A bustling marketplace. A labyrinth of booths form winding paths for buyers to view and evaluate the day's wares. As sellers prepare for the gates to open, they polish their goods, ensuring that they place their shiniest, best-selling products out front--the ones they know their customers enjoy and purchase time and time again. The products vary in size, form, and shape--some palatable to all, some to only a select few. Still, each seller knows--deep down--that his or her wares are best. They have either researched the makeup of their products and refined them over time or developed a profound allegiance to their brand through public support and sheer determination. They are persuasive. They are determined to get their products into households across the nation.

   As the market opens, you walk through the gates. You have heard about what the market offers and are interested to take a look. Both political and social times have been trying lately, and something from the market may help you make sense of the ongoing conflicts. Maybe, just maybe, you will find something that can boost your confidence or, at the bare minimum, educate you. As you walk in, the sheer size of the market overwhelms you; there are hundreds--thousands!--of sellers in booths forming a network of pathways and connections. You head down the main thoroughfare and sellers accost you, each offering a pitch for their latest, greatest items. Some are detailed, calm, and convincing. others are loud, red-faced, and combative--indignantly screeching at all who would question the quality of their product. Some are forceful and unyielding in their proclamation that it would be a mistake to pass up even a moment with them. others seem to view the entire market as a mockery, cracking jokes and working to frustrate the other sellers and distract would-be buyers. You are cornered in the sellers' frenzy and immediately start dismissing some of them as they crowd around. As you try to sort out the sellers' pitches, more appear--some selling worn out products or garbage, others selling knock-offs with false-promises of quality goods. Some sellers want you to ignore other sellers and only talk to those that they approve. Some sellers end up walking away from you because they dislike your attitude or style. Eventually, you have your pick of items from a select few sellers you find reasonable. You choose a number of items that suit you and leave the market confident that you have obtained what you really needed. You find that you really enjoyed talking with some of the sellers and know that you will probably buy from them again. Others you plan to forget. You even consider reporting some of the more aggressive sellers to security.

   Millions of people experience this scenario every day. However, rather than wandering through the labyrinthine maze of a pop-up market in search of useful goods, we open applications on our smartphones to obtain news and other forms of communication. (1) The proverbial "marketplace of ideas" resembles the scenario described above: a bustling, open market with thousands of statements, ideas, and concepts that speakers in the market try to bolster. Every day, internet users stroll down the marketplace thoroughfare of their own social media feeds, which are comprised of voices carefully coordinated by each individual user. In the traditional market, the best and brightest goods (or in the case of the marketplace of ideas--best and truthful speech) rise to the top, overshadowing and outselling lesser or "bad" goods. In this digital marketplace, however, the buyer has the power to pick and choose what sellers (speakers) he or she encounters at the outset. In fact, the buyer has the power to select the wares he or she deems most valuable, even if they may not objectively be the best.

   This hypothetical is not cautionary; rather, it reflects the reality that our marketplace of ideas is changing. Every day, more speakers join this market and make the marketplace of ideas larger than ever. What was once hailed as a place of discussion--where minority voices had a platform and all citizens were invited to sift through the muck of bad ideas and falsities in the search for truth--is starting to resemble an echo chamber. (2) With every "like," post, block, comment, message, mute, or re-tweet, we curate our own path through the modern marketplace--and our paved routes are not always inclusive of all viewpoints. This is problematic in our increasingly connected world. If we are choosing the voices--and sources of the content--we are exposed to, are we still able to objectively sift through the growing mass of ideas to unearth the truth? In a modern nation where up to two-thirds of the adult population relies on social media websites for news (3) and false news stories clutter our search engines, (4) the results can be tragic. (5) If "video killed the radio star," (6) is internet speech killing the marketplace of ideas?

   Though a champion for the marketplace theory, Justice Oliver Wendell Holmes, in a famous dissent, (7) noted that the marketplace was "an experiment," (8) much like America itself was in 1776. After all, the very foundation of our system of government was built on the voice of the people. Recent years, however, have demonstrated that support for the convention of public participation is dwindling. (9) When we step back and examine our current, popular concepts of democracy, we tend to conjure up visions of citizen empowerment and engagement--which manifests in the voting booth rather than the town square. (10) In light of this, social media have filled a gap in the communication of ideas: With the mere click of mouse, an aggrieved citizen can alert millions of citizens to his or her plight. Every share, comment, and "like" online gives weight--if not validity--to the statements of users with the free rein to comment on any hot button issue. (11) Popular posts and social media influencers--whether they are actors, activists, or legacy media--have the power to shape trending topics in a manner equivalent to the now-antiqued news ticker scrolling along the frames of cable news channels.

   With users and speakers curating their own mini-marketplaces in a world riddled with debate, the future looks bleak for the marketplace of ideas. How do we know that the truth will prevail when many believe false news content? How can we keep our faith in public debate when viewpoints often trump facts and eliminate any hope of productive discussion? Too many speakers--especially when they shout--leads to a cacophony. How can anyone make sense of such noise?

   This Article argues that though the state of the marketplace looks grim, it is not dead yet. Rather, we have entered an era in which the role of the marketplace is shifting. Instead of representing the proverbial promised land of truth and expression, the marketplace is serving an important role in the pursuit of democratic self-governance. From private media companies offering fact-checking services to combat false news (12) to teenagers using social media to call citizens to action on gun reform, (13) the marketplace appears to be adapting. But it remains to be seen whether the marketplace can continue to best serve the principles of free speech in our ever-changing and ever-debating society. Working in tandem, the marketplace and self-governance theories may just preserve the rights we hold dear in our First Amendment doctrine in this new era of speech. Part II of this Article provides a brief overview of the market-place-of-ideas model, including a discussion of its benefits and critiques. Part III explains why the traditional marketplace model does not comport with our current modes of speech and investigates whether the self-governance theory and the liberty theory of free expression should be the standard model for free speech under the First Amendment. Part IV explores the modern marketplace of ideas and posits that self-governance and liberty theories help facilitate changes in our understanding of free speech and tools that ultimately preserve the marketplace's role in society.

2. MARKETPLACE THEORY

   The marketplace theory is perhaps the most widely accepted and longstanding rationale for the protection of free speech in the United States. (14) Based on the concept of an open market, the marketplace of ideas is a place where information and ideas can flow freely, uninhibited by government censorship. (15) The marketplace was conceptualized as a place where all ideas could receive vetting by a diverse audience. It allows truthful and beneficial speech--"good" speech--to rise above any harmful speech--"bad" speech. (16) Simply put, in the marketplace, the response to "bad" speech should be more speech, not censorship. (17) Where there is a plethora of competing opinions and speakers, the marketplace theory posits that society benefits from the discussion and engagement of ideas to siphon out false or misleading speech. (18)

   Because it promotes the discovery of truth, the marketplace is lauded for demonstrating why speech regulation is ultimately ineffective or unnecessary for society. (19) After all, information is the lifeblood of a well-functioning democracy. (20) Thus, this theory has historically underlain the prevailing rationale for robust protections of speech in the United States. Our society was introduced to the concept of the marketplace through the works of John Stuart Mill and John Milton. (21) However, it was not officially adopted into First Amendment doctrine until 1919. (22) In his dissent in Abrams v. United States, Justice Oliver Wendell Holmes advocated that

   when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought...