The Potential Tension Between a "Free Marketplace of Ideas" and the Fundamental Purpose of Free Speech
|By M. Neil Browne||—||3 Akron J. Const. L. & Pol'y 55|
The authors argue that the marketplace of ideas is not competitive in the economic sense. Yet the Court often rules as if it is. What are the implications?
By assuming often that the idea market is competitive, Justices are committing the reification fallacy. They are treating an abstract belief or hypothetical construct as if it represented a concrete event or physical entity. In this instance, the Justices assume that existing markets are structured the same way idealized competitive markets are. In doing so, they treat the marketplace of ideas as inherently good, when in fact one must first determine what structure actually exists.
By committing the reification fallacy, here meaning assuming existing markets are competitive, the Court is thereby affirming the existing structure as socially legitimate. By assuming competition, the Court does not then need to call for any change to the existing market. If the Court assumed the existing idea marketplace was monopolistic, where one voice had significant market power, the Court would likely call for more restrictions and oversight of this market. If the market is competitive, however, no changes are needed and legislators and courts would do better to keep their hands off as the Court has traditionally done.
The goal of regulation is to make sure all ideas are heard that are necessary for self-government (as Meiklejohn says that "everything worth saying shall be said"), but that nobody dominates the debate through resource advantages. Meiklejohn uses a town-meeting metaphor where the government plays the role of moderator. Under this role as moderator, the government "may prevent some participants from dominating the deliberation...but it may not decide which ideas are acceptable or unacceptable."
The procedural protections may be necessary to insure fair access and maintain equal opportunity for the broad range of substantive points among speakers. Paradoxically, the very benefits often touted by those resisting regulation of speech in non-competitive markets are rarely realized because of the structural flaws in the extant market for ideas. Regulation of speech in a manner that would be consistent with the town-meeting model would provide greater opportunity for expression of multiple relevant viewpoints. Although writers like Martin H. Redish and Robert Post attempt to argue against regulating corporate speech on grounds of infringing free speech, they fail to distinguish between procedural and substantive regulations. A procedural regulation instead of reducing the number of viewpoints in a discourse, eradicates procedural advantages specific speakers have because of their superior resources.
Corporations are entities that have advantages not granted to individuals, including perpetual life, limited liability, and special tax treatment. Kerr writes, "...managers are permitted to transfer those advantages from the economic marketplace directly over to the political marketplace, diminishing true free trade in ideas because other participants are not provided with such significant advantages." Without procedural regulations, individuals are at a disadvantage in the marketplace of ideas.
When the Court relies on the laissez-faire approach to the First Amendment, the marketplace metaphor is ideological as opposed to utopian. The marketplace metaphor acts as a cleansing device, a soothing agent, one that helps citizens swallow, digest, and accept the end product of the "competition" of ideas to stabilize, rather than challenge, the existing order. Without a careful consideration of the actual structure of the marketplace of ideas, the Supreme Court is failing to make First Amendment rulings in favor of the democratic, truth-oriented interests of the demos, and may instead be serving, protecting, and entrenching the interests of the few.