Article by Thomas W. Joo
Dissenting in Abrams v. United States, Justice Oliver Wendell Holmes proclaimed that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Economic markets have since become a pervasive metaphor for free speech. This Article critiques the basic argument that underlies this metaphor: speech should be “free” because markets are “free” and because free markets produce “truth.” These assertions about markets are taken for granted, but they portray markets and market regulation inaccurately. Economic markets thus provide a poor analogy for the deregulation of speech. First Amendment jurisprudence invokes the supposed truth-finding function of markets to argue that competition, not law, should distinguish the true from the false. Thus, the law should also refrain from attempting to equalize the relative strength of competing speakers. The United States Supreme Court relied on the “antiequalizing” principle—and the marketplace metaphor—to strike down restrictions on corporate political spending in Citizens United v. Federal Election Commission.
The assumptions of the metaphor are inconsistent with theory and experience, however. Economic markets do not produce normative or empirical “truth.” Existing regulatory law reflects this understanding. Mail fraud law and securities regulation, for example, assume that markets are particularly bad at identifying the truth, and thus information is more aggressively regulated in the market context than in other contexts. Economic regulation also assumes that markets require some degree of “equalizing.” Antitrust law and insider trading law, for example, treat certain types of advantages as impediments that must be corrected in order to ensure that markets remain competitive.
The marketplace metaphor has proven effective in defending unpopular speech. It has also (perhaps inadvertently) contributed to the general pervasiveness of free market rhetoric and ideology in legal discourse. But the metaphor is based on a normative vision of unregulated markets, and not on market theory or experience. Thus it is ultimately little more than an antiregulatory assertion that provides no insights into how the law should deal with speech or markets.
89 Tul. L. Rev. 383 (2014)