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The Marketplace of Ideas: a Legitimizing Myth

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The Marketplace of Ideas: a Legitimizing Myth VOLUME 1984 FEBRUARY NUMBER 1 THE MARKETPLACE OF IDEAS: A LEGITIMIZING MYTH STANLEY INGBER* Theorists have often heralded the first amendment as creating a neutralmarketplace ofideas. Proponentsof this model view the market as essential to our society's efforts to discover truth andfoster effective popularparticipation in government. Professor Ingber asserts that the theoreticalunderpinnings of this model are based on assumptions of ra- tional decisionmaking that are implausible in modern society. He in- sists that, in reality, the market is severely skewed in favor of an entrenchedpowerstructure and ideology. ProfessorIngber explores ef- forts to reform and correct this market defect andfinds them equally flawed He concludes that the marketplace may fulfill its allegedfunc- tions only ffwe explore a theory offreedom of conduct;the market as it exists today simply fine-tunes differences among elites, while difusing pressureforchange bypreserving a myth ofpersonalautonomy needed to legitimate a governing system strongly biasedtoward the status quo. I. CLASSIC MARKETPLACE THEORY ........................ 6 A. A Searchfor Truth .................................. 6 B. Self-Government and Democracy ..................... 8 C. The Impact of Differing Marketplace Perspectives .... 12 D. The Implicit Assumptions of the Marketplace ........ 15 II. MARKET REALITY-FLAW OR STATUS QUO BIAS ........ 16 A. The Assumption of Discoverable Truth and An Open Society ............................................. 17 1. The Status Quo Orientationof Legal Doctrine .... 17 a. Clear andpresentdanger .................... 17 b. Obscenity .................................... 22 c. Summary ..................................... 24 2. Truth as Socialization ............................ 25 Professor of Law, University of Florida, Holland Law Center. B.A., 1969, Brooklyn College; J.D., 1972, Yale University. DUKE L4 JOURN4L [Vol. 1984:1 B. The Assumption of Rationality ....................... 31 1. A Problem of Form .............................. 32 2. A Problem ofAccess and Style ................... 36 a. The mass media .............................. 38 b. Thepublicforum ............................. 40 c. Symbolic conduct ............................. 44 d. Dissidenceand unconventionality ............. 46 C. The Marketplace as a Self-Fulfilling Prophecy ....... 48 III. REFORMING THE MARKET ............................... 49 A. Reform Proposals ................................... 50 B. The Dangersof State Intervention ................... 55 1. The FairnessDoctrine ........................... 57 2. FederalElection Campaign Acts ................. 65 C. Future Reform Possibilities .......................... 69 IV. THE FUNCTION OF THE FIRST AMENDMENT ............. 71 A. Fine-TuningAmong Elites ........................... 71 B. Bestowing an Advantage on NationalElites .......... 76 C. System Legitimacy and the Myth ofAutonomy ....... 77 1. The Myth ofAutonomy .......................... 78 2. Preservingthe Myth ............................. 80 3. Defusing Disenchantment ........................ 84 V. CONCLUSION ............................................. 85 Scholars' and jurists2 frequently have used the image of a "mar- ketplace of ideas" to explain and justify the first amendment freedoms 1. See, e.g., T. EMERSON, TOWARD A GENERAL THEORY OF THE FIRST AMENDMENT 7-8 (1966) [hereinafter cited as T. EMERSON, FIRST AMENDMENT]; A. MEIKLEIOHN, FREE SPEECH AND ITS RELATION TO SELF-GOVERNMENT 82-89 (1948) [hereinafter cited as A, MEIKLEJOHN, FREE SPEECH]; A. MEIKLEJOHN, POLrrICAL FREEDOM 73-75 (1960); Baker, Scope of the First 4mendment Freedom of Speech, 25 UCLA L. REv. 964, 964-90 (1978); Director, The Parity ofthe Economic Market Place, 7 LL. & ECON. 1, 3-10 (1964); Ingber, Defamation: A Conflict Between Reason andDecency, 65 VA. L. REV. 785, 792-94 (1979); Meiklejohn, The FirstAmendment IsAn Absolute, 1961 Sup. CT. REV. 245, 255-63; Redish, Advocacy of Unlawful Conduct and the First Amendment: In Defense of Clear and Present Danger, 70 CALIF. L. REV. 1159, 1161-62 (1982); Shiffrin, Government Speech, 27 UCLA L. REV. 565, 583-84 (1980); Wellington, On Freedom of Expression, 88 YALE LJ. 1105, 1129-31 (1979). See generally T. EMERSON, THE SYSTEM OF FREE- DOM OF EXPRESSION (1970) [hereinafter cited as T. EMERSON, FREEDOM OF EXPRESSION]. 2. The marketplace of ideas permeates the Supreme Court's first amendment jurisprudence, See, e.g., Board of Educ. V. Pico, 457 U.S. 853, 866 (1982); Widmar V. Vincent, 454 U.S. 263, 267 n.5 (1981); Citizens-Against Rent Control V. City of Berkeley, 454 U.S. 290, 295 (1981); Consoli- dated Edison Co. V. Public Serv. Comm'n, 447 U.S. 530, 537, 538 (1980); FCC V. Pacifica Found., 438 U.S. 726,745-46 (1978); Virginia State Bd. of Pharmacy V. Virginia Citizens Consumer Coun- cil, 425 U.S. 748,760 (1975); Bigelow V.Virginia, 421 U.S. 809, 826 (1975); Miami Herald Publish- ing Co. V. Tomillo, 418 U.S. 241, 248 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); Time, Inc. v. Hill, 385 U.S. 374, 382 (1966). The Court's opinions similarly reflect an image of robust debate. See, e.g., Brown V. Hartlage, 456 U.S. 45, 52-53 (1982); Gertz V. Robert Welch, Inc., 418 U.S. 323, 340 (1974); Miller V. Califor- Vol. 1984:1] MARKETPLACE OF IDEAS of speech and press.3 Although this classic image of competing ideas and robust debate dates back to English philosophers John Milton4 and John Stuart Mill, 5 Justice Holmes first introduced the concept into American jurisprudence in his 1919 dissent to Abrams v. United States:6 "the best test of truth is the power of thought to get itself ac- cepted in the competition of the market."' 7 This theory assumes that a process of robust debate, if uninhibited by governmental interference, will lead to the discovery of truth, or at least the best perspectives or solutions for societal problems. A properly functioning marketplace of ideas, in Holmes's perspective, ultimately assures the proper evolution of society, wherever that evolution might lead." The marketplace doctrine, however, once rooted in American ju- risprudence, grew a new shoot that benefitted its new environment. In addition to its usefulness in the search for truth and knowledge, the marketplace came to be perceived by courts and scholars as essential to effective popular participation in government. 9 In order for a democ- nia, 413 U.S. 15, 34 (1973); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 43 (1971); Red Lion, 395 U.S. at 392 n.18; New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The Court also has often referred to the marketplace in terms of the competition of ideas that it fosters. See, e.g., Buckley v. Valeo, 424 U.S. 1, 14-15 (1976); Williams v. Rhodes, 393 U.S. 23, 32 (1968); cf. Virginia State Rd of Pharmacy, 425 U.S. at 762 ("society also may have a strong interest in the free flow of commercial information"). 3. The freedoms of speech and press have often been referred to jointly as the freedom of expression. E.g., T. EMERSON, FREEDOM OF EXPRESSION,supra note 1, at 3. 4. See J. MILTON, AREOPArICA (London 1644), in 2 COMPLETE PROSE WoRKs OF JOHN MILTON 486passim (E. Sirluck ed. 1959). 5. See J. MILL, On Liberty, in ON LIBERTY AND CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 1,13-48 (R. McCallum ed. 1948). 6. 250 U.S. 616 (1919). 7. Id at 630 (Holmes, J., dissenting). 8. See Corwin, Bowing Out "Clearand Present Danger", 27 NOTRE DAME LAW. 325, 332-34 (1951). See, for example, Justice Holmes's dissent in Gitlow v. New York, 268 U.S. 652, 673 (1925)("If in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted... the only meaning of free speech is that they should be given their chance and have their way."). As early as 1644, John Milton similarly argued in an address to the Parliament of England: [Tihough all the windes of doctrin were let loose to play upon earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falshood grapple; who ever knew Truth put to the wors, in a free and open encoun- ter. J. MILTON, supra note 4, at 561 (footnotes omitted); see Dennis v. United States, 341 U.S. 494, 584-85 (195 1)(Douglas, J., dissenting); Abrams, 250 U.S. at 630 (Holmes, J., dissenting); T. JEF- FERSON, First Inaugural Address (Mar. 4, 1801), reprintedin THE COMPLETE JEFFERSON 384, 384- 85 (S.Padover ed. 1943); see also International Bhd. Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 40 (2d Cir. 1950); W. BAGEHOT, The MetaphysicalBasis of Toleration, in 2 LITERARY STUDIES 422, 425 (R. Hutton ed. 1879). 9. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 269-72 (1964); Thornhill v. Alabama, 310 U.S. 88, 102 (1940); Emerson, FirstAmendment Doctrine and the Burger Court, 68 4 DUKELAWJOURVAL [Vol. 1984:1 racy to function effectively, the citizens whose decisions control its op- eration must be intelligent and informed. Under this theory, the quality of the public exchange of ideas promoted by the marketplace advances the quality of democratic government. Given the importance the United States has placed on democratic government, this view of the marketplace of ideas has helped the freedoms of press and speech to assume something of a preferred position within our constitutional scheme. 10 This focus on a marketplace seeking truth and promoting an in- formed citizenry has had a curious impact on judicial and scholarly attitudes toward the first amendment. Courts usually articulate consti- tutional rights as "individual rights" that are justified because of the protection they afford to the person exercising the right. But courts that invoke the marketplace model of the first amendment justify free ex- pression because of the aggregate benefits to society, and not because an individual speaker receives a particular benefit."1 Courts that focus their concern on the audience rather than the speaker' 2 relegate free expression to an instrumental value, a means toward some other goal, rather than a value unto itself.13 Once free expression is viewed solely as an instrumental value, however, it is easier to allow government reg- CALIF. L. REv. 422, 423 (1980); Karst, Equalityas a CentralPrincvle of the FirstAmendment, 43 U.
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