In Abrams v. United States, Supreme Court Justice Oliver Wendall Holmes, Jr., penned a prophetic phrase that has had a profound impact on our understanding of the First Amendment.
Justice Holmes wrote in his dissenting opinion:
“The ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
While writer John Milton and philosopher John Stuart Mill inspired the marketplace of ideas theory in their books Areopagitica and On Liberty, respectively, Holmes cemented the concept into American legal lore in his Abrams dissent.
Later, Justice William O. Douglas was the first to use the exact phrase “marketplace of ideas” in United States v. Rumely (1953), writing: “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.” The term was also promoted in Brandenburg v. Ohio (1969) and Red Lion Broad. Co. v. FCC (1969) (“It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.”).
Since then, the concept of the marketplace of ideas has been a long-standing pillar of First Amendment doctrine. Comparing an open discourse of expression and speech to a free economic market, the marketplace of ideas theory holds that an open and robust speech market absent government restrictions results in an unfettered environment where the best ideas and theories rise to the top and the truth is ultimately realized.
Put simply, the marketplace of ideas theory stands for these principles: More speech is better than less speech. Restrictions on speech only curb innovation. More speech allows new ideas to be offered and progress to occur.
Over time, only narrow exceptions to the marketplace of ideas theory have been cemented in United States jurisprudence. Courts have accepted that when there are significant public justifications, minimal government intervention is necessary to maintain public order. Exceptions include defamation, true threats, fighting words, incitement to violence, child pornography, and obscenity.
In honor of the marketplace of ideas, MLonML shares both sides of controversial issues facing the media and the law. Thursday’s tragic shooting at Umpqua Community College in Oregon re-ignited a debate simmering in recent years:
Should the press name those responsible for mass shootings?
Yes, journalists have a responsibility to name the shooter, writes Kelly McBride of Poynter. McBride argues naming shooters gives people vital context for the story, helps us to identify trends, and decreases misinformation.
No, journalists should not name shooters and give them the glory they often seek, writes Elaine Ambrose of the Huffington Post. Ambrose asserts denying shooters the attention they desire may prevent future killings.
At first they should be named, but then journalists should cease to do so, writes Touré of Vice. Touré says it is necessary to report the name of the shooter within 24 hours after the shooting, but then the naming should end in order to avoid giving celebrity status to the killer.
MLonML hopes to continue presenting both sides of the argument and let the public decide—just how Justice Holmes would have wanted nearly 100 years ago.