INTRODUCTION 1520 I. THE HISTORICAL ORIGINS OF THE MARKETPLACE OF IDEAS 1523 II. THE UNIQUE PROBLEMS OF TODAY'S ONLINE MARKETPLACE OF IDEAS 1527 III. FIXING THE FLAWS IN THE ONLINE MARKETPLACE OF IDEAS 1531 A. The European Union's Approach, the German Approach, and 1531 Potential Regulatory Spillover to the United States B. What Facebook Is Doing 1538 1. Partnering with Third-Party Fact-Checkers to Evaluate 1539 Potentially False Posts 2. Related Articles/Additional Reporting as Counterspeech 1540 and Other Remedies in Response to False News 3. Transparency and Disclosure Requirements Regarding 1543 Political/Electioneering Advertisements 4. Removing False Posts Intended and Likely to Encourage 1543 Violence 5. Eliminating Fake Accounts 1544 6. Providing Contextual and Source Information 1545 7. Allowing Users to Rank Trustworthiness of News Sources 1545 8. Modifying News Feed 1545 9. Analysis of Facebook's Efforts 1546 C. What Twitter Is Doing 1549 1. Suspending Fake and Suspicious Accounts 1549 2. Mechanisms for User Reporting of Content and Accounts 1551 3. Demoting Tweets from Bad Faith Actors 1551 4. Transparency and Disclosure Requirements re 1551 Political/Electioneering Advertisements 5. Future Plans 1553 6. Analysis of Twitter's Efforts 1553 D. What the U.S. Legislature Seeks to Do: The Honest Ads 1554 Act. E. What U.S. Litigants Are Doing: Defamation Actions Against 1558 Purveyors of False News CONCLUSION 1560 APPENDIX A 1562 APPENDIX B 1580 INTRODUCTION
One hundred years ago, in the 1919 case of Abrams v. United States, Justice Oliver Wendell Holmes ushered into existence modern First Amendment jurisprudence by introducing the "free trade in ideas" model of free speech. (1) According to this model, the ultimate good is reached by allowing speakers to engage in the free trade in ideas--free of government intervention in the way of regulation, censorship, or punishment. Ideas must be allowed to compete freely in an unregulated market, and the best ideas will ultimately get accepted by competing with others in this marketplace. As such, government intervention is unnecessary and counterproductive. Thus, instead of punishing the speakers in Abrams--for criticizing the government's attempts to crush the Russian Revolution and calling for American workers to strike (2)--the government should have taken a hands-off approach and allowed these ideas to compete (and lose) in the marketplace of ideas. (3)
The characteristics of our marketplace (s) of ideas have changed dramatically since 1919, when the Russian immigrants in Abrams threw their leaflets from the fourth floor window of a hat factory in lower Manhattan in an effort to widely disseminate their ideas. (4) Russians are still players in our marketplace of ideas, but today's marketplace suffers from uniquely modern and challenging problems--such as rampant interference in the form of Russian troll farms mass-producing tweets and other widely shared content on social media with the intent and the effect of sabotaging U.S. elections. (5) In addition to the widespread dissemination of false political content from both foreign and domestic sources, today's online marketplace of ideas is besieged by the increased polarization and siloing of thought and opinion, which renders Holmes's prescribed remedy for harmful speech--counterspeech--increasingly ineffective. (6)
In the past two years we have seen a variety of efforts, both in the United States and across the globe, by governments and by online platform providers themselves, to address the problems, distortions, and imperfections in the online marketplace. Because online platforms like Facebook and Twitter play such a dominant role in the online marketplace of ideas--and the modern marketplace of ideas generally--it is worthwhile to focus specifically on how these platforms are being regulated, as well as how they are regulating themselves. While the United States has essentially taken a hands-off approach to regulating online platforms, the European Union has assumed a relatively aggressive regulatory approach. (7) The European Union, as well as several European countries, have generally implemented speech regulations to hold platforms liable for failing to police their sites, and have recently imposed sweeping regulations on such platforms. And, in their efforts to comply with such regulations, online platforms like Facebook and Twitter may end up implementing these European regulations in ways that affect what U.S. audiences can access online--since it is often difficult for platforms to implement national regulations in a geographically targeted manner with no spillover beyond the regulating nation's borders. (8) Accordingly, it is worthwhile to examine these international efforts in some detail. The European Union and European countries have recently undertaken sweeping efforts to remedy perceived imperfections in the marketplace, (9) including by requiring online platforms to rapidly remove a wide swath of harmful content. (10) Among European nations, Germany has led the way by enacting drastic legislation requiring social media sites like Facebook and Twitter to remove false news, defamatory hate speech, and other unlawful content within twenty-four hours of receiving notice of the same, upon pain of multi-million-euro fines. (11) Other European countries are considering following suit.
In addition to government regulation by the European Union and by European governments, the online platforms themselves are undertaking self-regulatory measures with respect to content accessible by U.S. audiences (partly in an effort to forestall U.S. government regulation). (12) Although such self-regulatory efforts are not governed by the First Amendment, they are nonetheless inspired by First Amendment values. (13) The leading social media companies have adopted several measures to attempt to address problems in the online marketplace of ideas, including by enabling the flagging of false news for verification by independent third-party fact-checkers, (14) commissioning the development of counterspeech in response to false news, providing contextual information about purveyors of news-related posts, and removing fake sites and purveyors of false news from their platforms. (15)
Although the United States has largely taken a hands-off approach to regulating online platforms, in the wake of the severe problems besieging the platforms in the context of the 2016 presidential election and thereafter, U.S. legislators have recently sought to hold the online platforms responsible for such problems. In addition to extensive legislative hearings during which legislators have sought to hold the companies to account for such problems, (16) legislators have recently proposed new laws to attempt to remedy such problems. In particular, Congress recently proposed the Honest Ads Act in an effort to limit foreign interference in the online marketplace of ideas and to mandate the disclosure of information regarding the source of political advertisements on social media. (17)
Finally, in the United States, victims and targets of some of the problems besieging the online marketplace of ideas--including false news, conspiracy theories, and hoaxes--are increasingly turning to defamation law in an effort to hold the purveyors to account for the harms resulting from such online content. (18)
This Article surveys the severe problems in today's online marketplace of ideas and the efforts that regulators--and the online platforms themselves--have recently adopted in an attempt to address such problems. In Part I, this Article examines the historical foundations of the "marketplace of ideas" model, as articulated in Holmes's early opinions, as well as the Court's eventual adoption of the marketplace model and, with it, the adoption of counterspeech, instead of censorship, as the default response to harmful speech. Part II then examines the scope and extent of the problems besieging the modern online marketplace of ideas, focusing on problems that have arisen especially in the context of the 2016 U.S. presidential election and thereafter on social media platforms like Facebook and Twitter. In Section III.A, this Article examines the sweeping regulatory efforts recently adopted by the European Union and by Germany in particular, and the ways in which the online platforms are striving to implement such regulations. In Sections III.B and III.C, the Article turns to an analysis of the self-regulatory efforts undertaken by leading social media platforms Facebook and Twitter, the likely efficacy of such measures in addressing the problems besieging the online marketplace of ideas, and the extent to which such measures are consistent with First Amendment values. In Section III.D, the Article examines the constitutionality and the likely efficacy of the recently proposed Honest Ads Act. In Section III.E, the Article examines the extent to which the defamation lawsuits brought by victims of false news, conspiracy theories, and online hoaxes are consistent with the First Amendment. A brief conclusion follows.
THE HISTORICAL ORIGINS OF THE MARKETPLACE OF IDEAS
The Supreme Court's marketplace of ideas model of the First Amendment has its roots in Holmes's "free trade in ideas" (19) formulation, which places primacy on the individual speech decisions of market actors unfettered by government regulation, as articulated by Holmes in several dissenting opinions in the early twentieth century. (20) In his first significant First Amendment opinion, Holmes dissented from a decision upholding the prosecution of five individuals for encouraging resistance to the United States' action in World War I. (21) In Abrams v. United States, (22) Holmes championed a robust marketplace of ideas constituted by the free speech decisions of individuals like the Abrams defendants, free of state censorship:
[T]he ultimate good desired is better reached by free...