Academic journal article Notre Dame Law Review

The Missing Marketplace of Ideas Theory

Academic journal article Notre Dame Law Review

The Missing Marketplace of Ideas Theory

Article excerpt

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.

I. 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. …

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