THE MISSING MARKETPLACE OF IDEAS THEORY.

• Author: Papandrea, Mary-Rose
• Position: Contemporary Free Speech: The Marketplace of Ideas a Century Later

One hundred years ago, Justice Holmes embraced the marketplace of ideas in his dissenting opinion in Abrams v. United States. (1) The same year as this centennial anniversary, Justice Kennedy, one of the most ardent adherents to this theory, retired from the Supreme Court. The dovetailing of these two events offers the perfect excuse to evaluate the marketplace of ideas in the Court's First Amendment jurisprudence today.

The marketplace of ideas drives many of the Court's First Amendment decisions, from the public forum doctrine to restrictions on offensive expression to campaign finance. Although the theory is not perfect, this Article contends Kennedy should have embraced the lessons from this dissent more--not less--in some of his First Amendment opinions. In particular, Kennedy often failed to use the marketplace of ideas theory to guide his thinking on public school students and government employees as well as in cases involving the government speech doctrine. Furthermore, in these cases where the Court--often but not always led by Kennedy--has abandoned the marketplace of ideas as a guiding principle, it has frequently embraced ad hoc balancing tests. Although such tests may be appealing because they permit courts to take into account a range of factors excluded from traditional First Amendment analysis--such as the value of the speech, various types of harms it causes, and alternative restrictions--they also give the government far too much discretion to censor and punish speech that it does not like and favor speech that it does. The Court's decisions involving public school students, government employees, and the government speech doctrine illustrate this problem all too well.

Part I outlines the general principles of the marketplace of ideas theory of expression. Part II explores the Court's application of this theory with a focus on Kennedy's opinions. Part III argues that in cases involving public school students, government employees, and the government speech doctrine, the Court and Kennedy frequently lost sight of the marketplace of ideas theory. Kennedy's approach allows the government to manipulate the marketplace of ideas in these contexts by giving the government wide authority to make content-based and even viewpoint-based speech restrictions.

1. THE MARKETPLACE OF IDEAS

   Prior to his memorable dissent in Abrams v. United States, (2) Holmes was the author of the majority opinions in Schenck v. United States, (3) Frohwerk v. United States, (4) and Debs v. United States. (5) As some scholars have argued, Holmes moved toward a more civil-libertarian position in the summer of 1919 due to his correspondence with other judges and scholars. (6) Whatever the cause for Holmes's shifting attitude, his Abrams dissent provides significant protection for the freedom of expression and severely limits the power of the government to restrict speech. Although at first blush Holmes's marketplace of ideas metaphor might appear to be an overly simplistic and deeply flawed comparison to the commercial marketplace, a close read of that opinion reveals much more significant guiding principles that have guided the Court in many of its First Amendment decisions of the last century. Once we have a deeper understanding of the marketplace of ideas theory, we can consider how the Supreme Court--and Kennedy in particular--used this marketplace of ideas theory in the last several decades.

   Although the phrase "marketplace of ideas" has entered not only the Court's First Amendment opinions but also our common parlance, a complete understanding of what Holmes meant in Abrams remains a matter of debate. Indeed, even though Holmes's dissent is often cited as proposing a theory of the First Amendment based on the marketplace of ideas, the opinion never uses precisely that phrase. (7) Instead, Holmes referred to the "competition of the market." (8)

   On the one hand, Holmes's metaphor has lots of surface appeal, especially today. Our current communications environment feels like a marketplace, if not a very crowded and noisy street fair. We are blasted with information and different voices fighting for our attention (and, in many cases, financial support). The internet has lowered if not eliminated the barriers to entry so that everyone can have a voice, not just the most powerful or the very rich. The traditional media no longer has such a dominant gatekeeping role in determining what information makes its way into the public conversations.

   But if this theory simply equates the freedom of speech with the commercial marketplace, the theory has little persuasive force. Many scholars have pointed out the many ways our marketplace of ideas is inherently flawed. As with the commercial marketplace, the playing field is not even. Even with the internet, people do not all have the same resources to speak or the same access to the most powerful avenues of communication. The voices of those with more power, or wealth, or fame (or all three) are not only louder and more visible, but they are also amplified in both new and traditional media. Given this uneven playing field, the marketplace of ideas analogy does not necessarily restrict the government power to restrict speech but instead might actually support government intervention to make sure this marketplace is "fair."

   Most depressingly, some studies suggest that our very psychological makeup works against the power of the marketplace of ideas. People tend to seek others who already agree with them and embrace their prior beliefs even more strongly when they are confronted with opposing views. (9) The recent explosion of "fake news" on social media has led even more people to doubt that the free exchange of ideas can lead to truth. (10) Getting to the "truth" (if one ever does) can take a very long time. Some recent psychological studies suggest that the quest for ultimate agreement is particularly unlikely because people tend to become even more entrenched in their positions when they hear contrary ones. (11) The faith the marketplace of ideas theory has in people as rational actors often feels misplaced. Relatedly, the marketplace of ideas theory feels particularly out of place in the context of certain speech questions where there is a disparity of knowledge and the ability to assess information, such as commercial speech and speech between various professional actors (like doctors and lawyers) and their clients. (12)

   But before we give up on the marketplace of ideas theory--at least as presented in Holmes's famous dissent--we should recognize that it is not simply an embrace of a free-market trade in facts and idea. Instead, as Professor Vincent Blasi has argued, the Abrams dissent "contains the seeds of an understanding of the First Amendment that has more to do with checking, character, and culture than with the implausible vision of a self-correcting, knowledge-maximizing, judgment-optimizing, consent-generating, and participation-enabling social mechanism." (13) A deeper reading of Holmes's opinion reveals several layers of important guiding principles for considering the scope of First Amendment protection, including a distrust for government interference with speech unless serious harm is imminent, a concept that is useful for more than simply determining the incitement doctrine; a "reality check" that sometimes seemingly harmful speech is spoken by "puny anonymities" who pose no real threat to peace and order; and most importantly, a grave distrust of government efforts to squelch speech with which it disagrees (evident in Holmes's condemnation of the Sedition Act of 1798). (14)

   Although the Court has not always specified the theory of free speech that supports its decision in individual cases, the influence of Holmes's famous Abrams dissent is evident throughout its one hundred years of First Amendment decisions. Kennedy, who was on the bench for almost thirty years, has helped solidify the Court's reliance on this theory of the First Amendment.

2. THE MARKETPLACE OF IDEAS IN JUSTICE KENNEDY'S OPINIONS

   The marketplace of ideas theory has played a dominant role in the Court's free speech jurisprudence and in Kennedy's opinions in particular. Adamantly opposed to content-based and viewpoint-based speech restrictions, Kennedy has opposed efforts to exclude speakers from the public fora, has expressed deep faith in the power of counterspeech, railed against the dangers of permitting the government to censor or punish speech it does not like, equated free speech with liberty and democracy, and refused to permit the curtailing of "offensive" speech. In addition, he has led the Court's rejection of ad hoc balancing tests that would weigh the value of the speech against the weight of the government's interest in restricting it.

   Throughout his twenty years on the bench, Kennedy repeatedly asserted that the First Amendment does not tolerate the abridgement of speech in public fora. For Kennedy, these public places are the epicenter of the marketplace of ideas, where all people can share their thoughts and ideas directly with other citizens, and any government efforts to restrict speech in these areas should be regarded with suspicion. For example, in his concurrence in International Society for Krishna Consciousness, Inc. v. Lee, in which he argued that a ban on the distribution of literature in an airport is unconstitutional, he argued that "[o]ne of the primary purposes of the public forum is to provide persons who lack access to more sophisticated media the opportunity to speak." (15) Kennedy took issue with the majority's application of the public forum doctrine, arguing that it gave the government far too much power to limit free speech. Here, Kennedy expressly stated that "[t]he First Amendment is a limitation on government" power and "[i]ts design is to prevent the government from controlling speech." (16) Kennedy rejected the majority's more wooden view of the...