Guest Essayist: Patrick M. Garry


Essay Read By Constituting America Founder, Actress Janine Turner


The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.

The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”

Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.

It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.

The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.

The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.

Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.

This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.


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