Free Speech and the Death of the Marketplace of Ideas

How sensemaking unraveled during an era of unprecedented free speech

[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market.

— J. Oliver Wendell Holmes, Abrams v. United States (1919)

Justice Holmes is perhaps the most well-known and oft-cited Supreme Court justice on First Amendment law.  His defense of free speech as a market competition to hone and select the best ideas would be refined by Justice William Douglas a few decades later to the pithier phrase “marketplace of ideas.”

Most today are aware of the marketplace of ideas argument in favor of free speech.  Increasingly, the modern Left grows skeptical of the whole enterprise while the Right clutches it as a sword to fight for its space in a radically new public forum—social media.  The modern Left speaks of unprecedented levels of dangerous speech, while the modern Right speaks of unprecedented levels of censorship.  Neither is true.  Every era has been defined by an orthodoxy and the heretical views that threaten its social order.  This dynamic always produces censorship.  The extraordinary thing about our time is that we enjoy less censorship, more speech protection, and greater access to platforms to disseminate it than at any previous time in history.

This seems to present a paradox. If free speech selects the best ideas and discerns truth, and we live in an era of unprecedented free speech, shouldn’t we then be living in a golden era of ideas and collective understanding?  Instead, phrases like “fake news,” “disinformation,” and “erosion of shared truth” inundate our lexicon, often wielded passionately and aggressively in the embittered exchanges that define our time.

In such an atmosphere, it’s hardly a surprise that well-meaning Americans could turn against free speech.  But if speech really is the problem, we’re in trouble.  Altering human behavior happens one of two ways—persuasion or force.  Everything we call ‘progress’ has involved the thoughtful exchange of ideas, the use of violence, or both.

Not all ideas are of equal value, and not all change is progress.  But which ideas are valued, spread, and adopted depends on the environment where ideas are exchanged.  This is the heart of the problem.  Free speech and the marketplace of ideas are often conflated, but they are in fact two separate, equally necessary components of an ideal system.  In a healthy marketplace of ideas, the currency of speech is exchanged in such a way that, over time, good ideas tend to spread and bad ideas tend to die.

So why has the currency of speech become so detached from the goal of better collective understanding?  Is free speech really worthless?  Maybe, but the value of a currency depends on the market it’s exchanged in.

The Ideal of Free Speech

The Supreme Court coined the phrase “marketplace of ideas,” but it didn’t invent the concept.  The Justices of the 20th century who shaped First Amendment Law into what it is today drew from theories of free speech developed and refined over several centuries. English philosopher John Stuart Mill built on those centuries of theory for his own writings on free speech, and Mill’s writing directly influenced the Supreme Court and the modern evolution of First Amendment Law.  Mill’s central argument in favor of free speech is laid out in On Liberty and essentially boils down to three points.¹

(1)   The unpopular view may be right, and the establishment view may be wrong.

As Mill put it, “[a]ll silencing of discussion is an assumption of infallibility.”  If you seek to silence a view, how do you know it contains no truth worth knowing?  You can only really know if you’ve dealt in the exchange of that idea and examined it yourself.  Should the next generation of thinkers be deprived of their chance to do the same?

Furthermore, progress in a society is impossible without minority views gaining steam and overtaking majority ones.  Every prevailing orthodoxy in history believed it was correct, and every new idea that brought society forward had to compete with that self-assured orthodoxy at a structural disadvantage.

(2)   The views you support, even if true, are weaker without engaging with opposing views.

I see two parts to this point. The first is encapsulated in one of the more famous passages from Mill’s On Liberty:

He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion.

A deeper understanding of opposing views refines your own view, along with your ability to defend it.

Second, silencing opposition may seem easier than addressing it, but in practice this tactic is terribly ineffective.  Since understanding a view you aren’t allowed to consider is impossible, the majority position must be adopted with limited understanding.  Once shakey believers encounter a well-articulated argument in favor of the heretical view, they may be surprised by how persuasive it is.  This isn’t academic speculation.  History is replete with majoritarian-turned-dissenters who discovered a forbidden view wasn’t as outrageous as its straw man appeared and, as a result, felt deceived and flipped sides.

This happens because, as history shows, attempting to silence speech simply doesn’t work.  A perfect illustration comes from the infamous Roman practice of damnatio memoriae, which Eric Berkowitz describes in his book Dangerous Ideas as a practice “involv[ing] some combination of destroying or mutilating images of the condemned[,] a ban on using the person’s name, and the deletion of the person from public records.”  As a testament to the impotence of damnation memoriae, we still know the names, stories, and heretical views of countless Roman figures who were subject to it, two thousand years after their death (some notable examples being the Emperors Nero and Caligula).

Another notch in the belt of Rome’s failed thought suppression campaigns is Christianity itself, the most widespread religion in the world today with over two billion adherents.  Christians in the Roman Empire were persecuted, imprisoned, and executed for their beliefs.  Under these conditions, the heretical views of Christianity nonetheless survived for hundreds of years before Constantine ultimately decreed a reversal in the orthodoxy.  Constantine’s new Christian orthodoxy quickly settled into its role persecuting the minority views that opposed it.

Time and again orthodoxies attempt to snuff out dissenting speech, and time and again they fail.

(3)   Competing views often contain different parts of a greater truth.

As Mill wrote in On Liberty:

Popular opinions, on subjects not palpable to sense, are often true, but seldom or never the whole truth.  They are a part of the truth; sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjoined from the truths by which they ought to be accompanied and limited.  Heretical opinions, on the other hand, are generally some of these suppressed and neglected truths, bursting the bonds which kept them down, and either seeking reconciliation with the truth contained in the common opinion, or fronting it as enemies, and setting themselves up, with similar exclusiveness, as the whole truth.

A glaring modern example can be seen in the debate between globalization and domestic production.  For decades in elite Democratic circles, arguing that exporting jobs or importing labor could hurt domestic wages had the result of instantly branding oneself as a close-minded, nationalist bigot.  This truism was so tightly enforced that merely expressing a preference for “Made in the USA” was seen as a “dog whistle.” 

As a result of this forced consensus and the policy that followed, both frustratingly and predictably, wages in the U.S. flattened and remained flat for fifty years.  The Democratic Party bled blue-collar workers from its base, who felt the costs tangibly in their daily lives while the political elite on the Left grew disinterested (whereas the elite on the Right weren’t interested to begin with).  Real wages only began to break the stasis under protectionist policy implemented by a president whose campaign cashed in on populist anger.  Under pressure, a stage full of 2020 Democratic presidential hopefuls decried free trade agreements previously regarded by the party as sacred. The slight bump in workers’ wages transformed into a sharp spike when a global pandemic-induced worker shortage and pent-up demand drove power back into the hands of workers.  Under crumbling supply chains, the revealed fragility of our global system (and the reminder that not all the players are geopolitically aligned) has brought “Made in the USA” back into the Overton window.

Here, silencing the heretical view masked a deeply impactful macroeconomic truth that could have averted untold financial anguish.  Yet, the orthodox view contained truth, too.  It was and remains true that the American Right stoked the flames of economic insecurity with the accelerant of xenophobia.  The consequences have been widespread and palpable.

Stumbling in Pursuit of the Ideal

While Justice Holmes’s musing on the “free trade in ideas” are well-known, what is less known is that they appeared in his dissents.  The majority in Abrams, the Supreme Court case quoted at the start, upheld a twenty-year prison sentence under the Espionage Act.  The crime?  Distributing leaflets arguing for labor strikes and opposing military involvement in Revolutionary Russia (what would ultimately become the Soviet Union). 

Abrams wasn’t a freak occurrence, either. The Espionage Act justified the censorship of boundless speech, explicitly grounded on probably the most popular justification for speech censorship in the history of human civilization—disagreeing with the establishment view is itself harmful to society and therefore “treason,” or “sedition.”

Today, no court in the United States would convict a defendant on those charges, and if they did, the conviction would swiftly be thrown out on appeal.  What changed?  In the intervening century, the sentiments expressed in Supreme Court dissents like Holmes’s slowly became Supreme Court majority opinions, expanding the scope of the First Amendment based upon the ideas of thinkers like Mill and severely limiting the government’s power to censor, regulate, or otherwise control speech.

The First Amendment deals almost exclusively with government censorship. but Mill and other free speech advocates were just as concerned with private censorship. Afterall, powerful private actors are just as capable of suppressing, distorting, and controlling the marketplace of ideas.  Mill was particularly concerned with moral panics and mob rule imposing forced consensus.  Today, the modern Right beats this drum against social media, while the Left tends to dismiss it as “not a First Amendment issue” and “corporations exercising their right to exclude.”

Ideologically, this is a startling role reversal, but practically it isn’t all that surprising.  The Right is the minority faction in the culture today (not necessarily by numbers, but demonstrably by cultural power). Minority factions invariably suffer more speech suppression and are consequently more motivated to support free speech.  At the same time, social media, the preeminent private censor, is under public pressure to reign in "dangerous speech,” and they know the Left wields the cultural power.  Under these conditions, Facebook and Twitter can be seen applying more lenient standards to speech coming from the Left than from the Right.  These companies are acting as conduits for the forces of social conformity Mill feared.

Still, it bears emphasizing that there is something historically unique about this otherwise prototypical suppression of minority views.  Heretical views today enjoy a larger megaphone than humanity could have imagined possible for even the most popular views 50 years ago. If a conservative thinker in Missouri wants to thoughtfully make the case for a conservative idea, they can take to the internet and give a curious thinker 1,000 miles away in New York the opportunity to discover the argument and consider it for themself.

It's true that not all censored conservative speech is inciting violence, deliberately spreading dangerous lies, or otherwise void of reasoned thought, but a lot of it is.  The Left has its share of these views, too, and one thing all of these extreme ideologies have in common in today’s world is that they are uncomfortably popular and, imbued by the amplifying effects of social media, spread like wildfire.

How Sensemaking Unraveled in an Era of Unprecedented Free Speech

In this era of unprecedented free speech, how are deranged ideologies and selective or outright fabricated facts spreading so effectively?  Where is the philosopher’s paradise Mill promised?

The simple answer that “the marketplace of ideas doesn’t work” is unsatisfying, and very likely wrong.  Tellingly, opponents of free speech never offer an alternate system for adjudicating the merit of ideas other than “my ideas are right, good people know it, and an authority should enforce them.”  Granted, even in a healthy marketplace of ideas, open discourse can’t perfectly select for better ideas.  Yet over time, a functional marketplace of ideas will select for better ideas more consistently than any other system we know of.

The marketplace of ideas is an aspirational construct society moves toward as more interactions between people involve candid truth-seeking and good faith exchange.  Conversely, it moves further away when exchanges involve bad faith and participants prioritize other goals over seeking truth.  Another necessary ingredient is critical thinking, which is why Mill was quite concerned with logic, reasoning, and philosophy of science.

As a born-and-bred Midwesterner, the canonical example in my mind of idealized exchanges approaching a marketplace of ideas is the Lincoln-Douglas debates. In 1858, incumbent U.S. Senator from Illinois Stephen Douglas squared off in seven debates across the state with his Republican opponent, Abraham Lincoln.  These debates couldn’t be more different than the televised events hosted by our corporate media today that nonetheless go by the same name.  The format was 60 minutes for the opening candidate, 90 minutes for the opposition’s reply, and finally 30 minutes for the first candidate’s rebuttal.  There were no private sector media personalities curating “gotcha” questions, no 30-second rebuttals designed to produce snappy back-and-forths. Each candidate spoke long-form on substantive issues and his adversary engaged in kind.  In Amusing Ourselves to Death, Neil Postman details an earlier debate between Lincoln and Douglas in Peoria, Illinois in 1854 that bears emphasizing:

Douglas delivered a three-hour address to which Lincoln, by agreement, was to respond.  When Lincoln’s turn came, he reminded the audience that it was already 5 p.m., that he would probably require as much time as Douglas and that Douglas was still scheduled for a rebuttal.  He proposed, therefore, that the audience go home, have dinner, and return refreshed for four more hours of talk.  The audience amiably agreed, and matters proceeded as Lincoln had outlined.

As Postman noted of the large audiences the debates drew, “[t]hese were people who regarded such events as essential to their political education, who took them to be an integral part of their social lives, and were quite accustomed to extended oratorical performances.”

Amusing Ourselves to Death, published in 1985, laments the deterioration of serious thinking in American society, which Postman saw as stemming from modern mediums all but demanding we sacrifice our attention spans for dopamine hits. Postman was beginning to see how corporate incentives were reshaping the marketplace of ideas, but he couldn’t have imagined thirty-six years ago just how much worse things would get with the advent of the internet and social media.

Here lies our problem, decades in the making and now at a fever pitch.  To select for better ideas, we need the currency of speech and a functioning marketplace of ideas.  What we have instead is an inflated currency with fewer and fewer vestiges of earnest truth-seeking and thoughtful exchange to trade it in.  Mob rule, witch trials, moral panics, and repressive regimes all kill the marketplace of ideas but they also deface the currency of speech.  What would it look like if speech remained nominally free and open (and was even amplified) but the marketplace of ideas was replaced by something else?  It would look like 2021. It would look like the marketplace of engagement.

The new marketplace isn’t driven by a desire to seek truth.  Predominantly taken over by social media, it’s driven by a shareholder demand for greater profit, which requires perpetually increasing “user engagement.”  The savvy professionals at Facebook and Twitter realized long ago that the fastest way to more engagement is to ensure as many interactions as possible either (a) simply reinforce what we think we already know, or (b) make us really, really angry at people we already hate.  This new way of thinking spreads far beyond the pixels on our screens, altering the way we think and interact in all facets of life. Both on the internet and offline, the marketplace of ideas has been largely replaced with a new market driven by bias-affirmation and emotion-stoking.

Speech has never been less restricted, and speech has never been easier to push out into the world.  Yet, this inflated currency is no longer circulating through the marketplace of ideas.  The market for the “free trade of ideas” philosophers and jurists saw as necessary to discover better truth has been supplanted by a massive, ever-present dopamine-hit machine that, by its nature, is driven by forces fundamentally incompatible with a marketplace of ideas.  The marketplace of ideas requires an open mind.  The marketplace of engagement encourages us to close ourselves off to information that challenges us.  The marketplace of ideas requires the willingness to be wrong and the motivation to seek truth.  The marketplace of engagement leans into confirmation bias—“Everyone I respect agrees with me”—and source bias—"I don’t like the source you rely on, so I don’t even have to examine your claim.”  The marketplace of ideas requires critical thinking and deep diving into complex issues.  The marketplace of engagement barrages you with simplified memes that compress the complexities of reality into a few words that tell you exactly what you want to hear.

Perversely, the fact that the marketplace of engagement is nothing like a marketplace of ideas is far from obvious.  The corporate leviathans running social media, looming over a larger and larger portion of all human interaction, invest hefty sums to give us the disturbingly persuasive illusion that we’re simply encountering and choosing to engage with ideas in an open marketplace.  In reality, every single post or Tweet you see was chosen by an algorithm behind the scenes based on how the company thinks it can squeeze the most engagement out of you.

It’s no wonder so many, Left and Right, think decent people all agree with them—social media’s algorithms selectively curate the posts that will make you feel this way.  It’s no wonder so many, Left and Right, think the enemy tribe is uniformly dishonorable, dishonest, stupid, and evil—social media’s algorithms selectively curate the posts that will make you feel this way.  What you see in the marketplace of engagement is not representative of anything other than the simple hedonic levers a megacorporation determined it needs to pull to maintain your engagement.

The political extremes in American politics have benefited significantly from the marketplace of engagement. Social media users are marks, disarmed of their desire to engage in thoughtful discourse and challenge their own beliefs.  The bias-affirmation and emotion-stoking of the new marketplace perfectly prime them to convert to one or the other of the two political poles.  This sheds new light on the issue of modern censorship discussed earlier.  Social media censorship is not pushing conservatives (and other heterodox thinkers branded as conservatives) out of a marketplace of ideas where well-crafted views could otherwise be exchanged and considered by truth-seeking interlocutors.  The biggest barrier to a good faith conservative convincing others of their thoughtful ideas isn’t social media censorship—it’s social media’s blanket elevation of and our growing preference for bias-affirming and emotion-stoking ideas over nuanced and thoughtful ones.

What’s left to fight for, then, is simply a platform in the marketplace of engagement to confirm biases and stoke emotions as ammunition in an escalating culture war. Nominally, we are free to push out as much speech as we please.  But the incentive structure is clear: speech that does not affirm or stoke is so devalued in the marketplace of engagement that it is often rendered virtually worthless.  Speech that fails to affirm our biases or stoke the right emotions is punished by one tribe or the other.  In the marketplace of engagement, even if nuanced, well-reasoned speech reaches some listeners, the half-witted takedown of that speech calibrated to affirm preexisting biases and stoke emotions will receive orders of magnitude more engagement, more shares, and therefore be presented to more people as their AI-powered reality. Any single nuanced heterodox view pushed into the marketplace of engagement generates an overwhelming amount of opposed bias-affirming and emotion-stoking responses.

The common refrain that “Twitter isn’t real life” is becoming less and less true every day, and the response that you can simply opt out is utterly unhelpful. If you completely ignore social media, your mental health might be better for it, but it won’t change the fact that millions of people are exchanging their speech in the marketplace of engagement.  It won’t change the fact that our news industry uses social media ‘discourse’ as a stand-in for public opinion.  It won’t change the fact that politicians and corporations warp their behavior based on the sentiment mined from social media. And it won’t change the fact that this confluence of factors spreads the marketplace of engagement far beyond the borders of social media.

There is no cutting the Gordian Knot here.  While loud factions leverage bias-affirmation and emotion-stoking within the marketplace of engagement to advance their culture war, we must hold fast to what remains of our sanity and realize the only way forward is to reject the Pavlovian incentives of the new marketplace.  It won’t happen on Twitter or Facebook, but simply moving exchanges off those platforms won’t solve the problem, either. It starts with you, and me, and how we choose to engage with others we encounter, especially when we reach areas of disagreement.  Do we perpetuate the influence of the marketplace of engagement, eradicating persuasion and leaving violence as the only available tool for change?  Or do we replant the seeds of thoughtful discourse and have the earnest truth-seeking exchanges that will reconstruct a saner, more durable marketplace of ideas?

Until then, we can have the best, freest speech in the world, but it won’t be worth anything.

1. All Minus One, produced by the Heterodox Academy and edited by Richard V. Reeves and Jonathan Haidt, provides a great outline for Mill’s work and my summary roughly follows that outline.