Marketplace of Ideas

• Author: Steven Shiffrin
• Pages: 1670-1671

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The "marketplace of ideas" argument in FIRST AMENDMENT jurisprudence was first enunciated in Justice OLIVER WENDELL HOLMES'S dissenting opinion in ABRAMS V. UNITED STATES (1919):

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very 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

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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.? While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.

Holmes's stirring words recall similar but distinct passages from JOHN MILTON and JOHN STUART MILL. Extravagant as Holmes's passage is, it is in significant respects more careful than the implications of Milton's rhetorical question: "[W]ho ever knew truth put to the worse, in a free and open encounter?" Holmes did not claim that truth always or even usually emerges in the marketplace of ideas. Holmes's claim was more confined?that the best test of truth is the competition of the marketplace.

On the other hand, Milton spoke of a free and open encounter; Holmes spoke of the competition of the marketplace. A recurrent problem in First Amendment cases is that these two notions are not the same. Those who seek access to the broadcast media, as in RED LION BROADCASTING V. FCC (1969), or to powerful newspapers, as in MIAMI HERALD PUBLISHING CO. V. TORNILLO (1974), argue that the competition of the marketplace is not free and open. They urge that truth cannot emerge in the market if the gate-keepers do not let it in. A more general criticism of the Holmes position is that the claim that the marketplace is the best test of truth cannot itself be tested without an independent test of truth, yet the argument by its terms denies any superior test of truth that is independent of the marketplace.

These criticisms aside, the question arises whether the...