Document Type
Article
Publication Date
2022
Publication
Harvard Law & Policy Review
Volume
16
Abbreviation
Harv. L. & Pol'y Rev.
First Page
275
Abstract
This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended to serve and strengthen.
Part II looks beyond the superficial appeal of the marketplace theory to highlight the structural role the First Amendment plays in the American constitutional system. Building on the work of Charles Black, John Hart Ely, Alexander Meiklejohn, and Robert Post, I maintain that whatever else the First Amendment was meant to achieve, a core function of its speech, press, assembly, and petitioning clauses was to ensure that citizens could effectively exercise their right of self-governance. As an increasing number of First Amendment scholars are beginning to recognize, unbridled faith in a supposedly self-correcting speech marketplace is a dangerous foundation for a democracy.
Part III considers how the First Amendment can foster self-governance. It lays out three principles that should guide the development of legal doctrines that support an informed and empowered electorate. First, we need to move beyond the idea that the First Amendment’s only function is to enshrine free market ideology. Second, the First Amendment does not bar the government from addressing market failures in the actual markets in which communication takes place, especially when those failures undermine the public’s capacity for self-governance. Third, the capacity for self-governance turns, at least in part, on whether the public has the information it needs to effectively evaluate issues of public policy.
Building on this last point, Part III proposes several ways to bridge theory and doctrine to promote self-governance, including using antitrust law to address concentrated economic power in communication markets, expanding and enforcing privacy and consumer protection laws to create more competition among speech platforms, and initiating programs that support journalism and other knowledge institutions within society. It also argues that as an influential participant in public discourse, the government should have an obligation to wield its influence in ways that support self-governance, not undermine it by misleading its citizens or starving them of the information they need. Part III therefore proposes two new rights that should be recognized under the First Amendment: a right not to be lied to by the government when it undermines the public’s capacity for self-governance and a right to information in the government’s possession that can assist the public in its efforts to understand and evaluate issues of public policy.