In United States v. Alvarez, Justice Anthony Kennedy declared that “in a free society,” the proper “remedy for speech that is false is speech that is true.” In sideways fashion, Kennedy is invoking the magical “marketplace of ideas.” Put simply, this is the notion that if the government does not interfere, the truth in any setting will be revealed by the free play of competition, via some sort of invisible hand. This idea is commonly invoked in U.S. constitutional law. It is also clearly wrong. One indicator is that courts themselves do not even believe it.
Consider how courtrooms operate. Judges do not accept all comers, allowing anyone who wishes to speak to take the stand. Instead, they wield the gavel. If there is a more powerful instrument of censorious power, it’s hard to know what it might be. Judges can jail people for speaking out of turn and act as government speech regulators every time they apply the rule against hearsay evidence, or exclude astrologers or phrenologists from giving evidence because they fail the Daubert standard. The Supreme Court won’t allow cameras in the courtroom, and if any ordinary citizen tries to enter the courtroom to speak about the freedom to bear arms, they’ll be met by a person with a gun.
But none of this has ever seriously been thought to raise a First Amendment concern. Why not? In part, I think, because judges know, like the rest of us, that getting to the bottom of things—seeing what “holds,” in Donna Haraway’s wonderful formulation—requires processes, structures, and rules. Institutions for fact-finding and the production of knowledge are nothing if not disciplined.
The structuring or regulating of inquiry in the pursuit of knowledge is in fact pervasive in our society, and First Amendment law is full of rules that implicitly make space for speech regulation, including to protect our ability to declare or evaluate what is true. Courts have essentially excluded evidence law from the reach of the First Amendment, by treating it as not about speech. “Commercial speech” initially was unprotected, and later given only partial protection via the Central Hudson test. This is why government can punish false or misleading commercial speech, though it cannot do the same for false or misleading political speech. The speech of professionals has also often been given special treatment, which is why a doctor (but not Joe Rogan) can be punished for advising a patient to take ivermectin to cure COVID-19. For many years, courts also accepted certain kinds of political speech regulation as constitutionally legitimate. Examples include the Fairness Doctrine and campaign finance laws.
That was then, this is now. Over the last several decades, the Court has embarked upon an overtly deregulatory campaign, one that resonates deeply with and borrows from neoliberal tropes of market freedom. It fiercely attacked campaign finance laws, and in cases like Sorrell v. IMS Health and NIFLA v. Becerra, has begun to dissolve distinctions between political, commercial, and professional speech. It is not clear whether the regulatory state can survive these latter developments, or whether our democracy can survive the former.
Over these same decades, the Court has also revised a raft of other doctrines—in areas as varied as labor law, civil procedure, antitrust law, and anti-discrimination law—to help usher in an era of extraordinary inequality and concentrated power. Though these shifts and the developments in First Amendment doctrine might seem unrelated, colleagues and I have tried to show that they together reflect different dimensions of the influence of neoliberalism in law.
The immense power of intermediary platforms like Facebook, Google, and Amazon is also an artifact of these shifts. It was not technical change alone that gave Facebook power over the data and newsfeeds of hundreds of millions of Americans. All of this was enabled also by law that, for example, gave corporations stronger claims to intellectual property, made mass online contracting viable, and created Section 230 immunity for platforms. As I describe in a forthcoming article, The Public History of Trade Secrecy Law, shifts in the law of trade secrecy have also consolidated corporate control over data. Companies today can and do call upon the new constitutional law of takings to block the public from accessing data about the safety or qualities of their products, or that would help them understand relations and exchanges between firms and government.
We live in an upside-down world, then, where the “free market in speech” in fact translates into the freedom of market actors to mislead and manipulate the public. There is a deep point about “market freedom” and legal coercion embedded here. As the realists long ago noted, and scholars of law and political economy are calling attention to today, all markets rely upon coercion, such as the state coercion that underpins property, contract, and labor law. Rendering speech more like the “free market” is to render it susceptible not to less coercion, but to more “private” coercion—coercion that is traceable, despite the label, also to government. So, the “free market” in speech doesn’t support either truth or freedom. It just defers to coercion and power operating outside of the frame. In the last several decades of “free as in markets,” private entities have gained more power to control speech and ideas—theirs and ours—and we have begun to take apart important institutions of public meaning-making and inquiry.
What does a political economy analysis of this sort imply about what we should do? Here are a few ideas:
First, we need to reassert the importance of freeing speech from the market. We must recognize that private power—especially as amplified and encased by the neoliberal turn—generates coercion that is also troubling if we are committed to free speech.
Second, and relatedly, we should demand data publicity that proactively enables the public to access data and information that can help us resist manipulation or other harms generated by privatized power over speech and data. It should be a problem for our free speech tradition, for example, that private actors have so many tools—in FOIA law and via trade secrecy and takings cases, for example—to hide information from the public and to manipulate and mislead while blocking public scrutiny. In my forthcoming paper, I resurrect largely forgotten Supreme Court cases that authorized government to disclose private commercial information to the public. These cases should be revived, and takings law interpreted as presenting no barrier to the (ideally proactive) disclosure of commercial information to the public. On this basis, legislatures could design a wave of data publicity laws, for example, to help us discipline and regulate corporate actors.
Third, we should challenge the structural power that enables market actors to mislead or manipulate the public. We should explore avenues by which antitrust law and regulation might curb the power of private firms—for example, by regulating their size, or restricting certain types of profit-seeking data gathering and use.
Finally, we should rebuild and democratize public institutions that cultivate, produce, and test knowledge. We must explore the possibility of public data trusts and figure out new ways to support public media and intermediaries, and we must reinvest in our public schools, universities, and scientific institutions. These, too, are out of the frame of most First Amendment discussion, but are of obvious importance if our concern is the pursuit of truth and the defense of the preconditions of democratic discourse.
Amy Kapczynski is a professor of law at Yale Law School and was a senior visiting research scholar at the Knight Institute in 2019-2020.