Beinhart's Body Politic: Marketplace of Ideas

by Larry Beinhart, August 01, 2007

The “marketplace of ideas” is an economic metaphor.

Though he didn’t use the exact phrase, the concept is generally credited to Supreme Court Justice Oliver Wendell Holmes.

The case was Abrams v. US (1919). The defendants had produced and given out leaflets that criticized the American attack on Russia in strident and colorful terms, and called for a general strike. An amendment to the Espionage Act of 1917 had made it a crime to criticize the American government. Holmes wrote:

The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.

It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

It is worth noting that his opinion was a dissent. It should make us aware that American governments can make free political speech a crime and that certain Supreme Courts will support them.

Most of us would automatically think that it wouldn’t happen today. Perhaps not.

But if we rephrased such a law in terms of contemporary fears, say one that makes speech that could be construed as material support for terrorism, it becomes plausible. How would this court stand in regard to the marketplace of ideas? Boldly, like Holmes? Or like the 1917 majority?

Last year the Military Commissions Act of 2006 was passed, which stripped “unlawful enemy combatants” of the right to habeas corpus, a right far older, better established, and less threatening than that of free speech.

An appeals court upheld the law. The current Supreme Court let the decision stand. It has recently reversed itself and agreed to hear the case. It’s worth watching.

There have been two recent free speech cases.