it is pictures rather than propositions, metaphors rather than statements, which determine most of our philosophical convictions
–Richard Rorty, Philosophy and the Mirror of Nature
Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.
We exist in a free marketplace of ideas, or so we might say. The Supreme Court’s recent opinion on Citizens United v. the Federal Election Commission sought to protect that marketplace by curbing regulations on corporate spending on political speech. As the Court opined, these regulations constituted censorship, and “the censorship that we confront is vast in its reach.”
The majority opinion of Citizens United v. FEC has been framed in many ways. President Obama observed in his State of the Union, “the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.” Lawrence Lessig characterizes it as indicative of the progressive and now explicit capture of our elected institutions by corporate interests. And perhaps more sinister, Ronald Dworkin, writing for the New York Review of Books, speculates that the majority repositioned the case, accelerated its consideration, and designed the decision to aid the Republican party in the 2010 election season.
The Supreme Court’s majority countered that these concerns are moot to hysterical. Instead, they asserted that the proper function of the free marketplace of ideas relies on liquidity, and what better way to increase liquidity than to throw out the McCain-Feingold bill, undermine longstanding bans on direct campaign contributions that date back to 1907, and otherwise tear down the restrictions that had kept corporate spending in check. The free marketplace for ideas, after all, would yield the fittest through rude competition. The question before the court was only whether that marketplace was free. From there, the Roberts Court could presumably “call balls and strikes.”
The free marketplace for ideas, however, has meant different things to different people at different times. It originates with what Herbert Spencer may have called the survival of the fittest, but it was gradually overrun with an increasingly sophisticated sense of economic competition. The former posits a simple struggle between truth and falsehood. The latter integrates concepts such as market failure and regulation – concepts that suggest a market can and should be fine-tuned. The same metaphor describes each of these moments, but each moment has different qualities.
The Court’s opinion in Citizens United illustrates a dramatic shift in the Court’s view of the metaphor of the marketplace of ideas. Rather than abide the stringent regulations accumulated and enforced by the Federal Election Commission, the Court reasoned that political speech funded by corporations was more like the speech of an individual in a town square than otherwise and deserved equal protection under the First Amendment. Those regulations, therefore, aren’t regulations at all. They are censorship, and censorship interferes with the marketplace for ideas.
The Court in Citizens United concluded that the Federal Election Commission’s specific bans and limitations on the funding of political speech by corporations were not constitutional. Like people, corporations should encounter the marketplace of ideas unencumbered, so they can share their points of view without government interference. These bans and limitations on corporate expenditures introduce a chilling effect on political speech: “a speaker wishing to avoid criminal liability threats and the heavy costs of defending against FEC enforcement must ask a governmental agency for prior permission to speak.” Though the court also found disclosure requirements burdensome, these survived on the premise that did not ultimately limit speech, and the limit is what the court decided to eliminate. Just as an ordinary citizen can offer their speech under the First Amendment, so too can a corporation or a union.
Dismantling the FEC impediments to corporate political speech, however, would require a bold move. The Court overturned Marshall’s 1990 decision in Austin v. Michigan Chamber of Commerce, which provoked concerns about the Court’s fidelity to the principle of stare decisis – the Court’s established responsibility to respect prior decisions. As Justice Kennedy argues, the priority of an “open marketplace,” or free market of ideas is inconsistent with Austin: “Austin interferes with the “open marketplace” of ideas protected by the First Amendment.” The Austin decision, according to Kennedy, introduced regulations that censored voices and disallowed the full panoply of contributors from participating in the market: “The censorship we now confront is vast in its reach. The Government has ‘muffle[d] the voices that best represent the most significant segments of the economy.’” He would go on to say, of the existing FEC regulations, “[the government] uses censorship to control thought.” If the regulations held in Austin equated to censorship, then regulations were effectively tools to control thought.
The Court’s decision advanced a marketplace for ideas characterized by laissez-faire, almost primitive competition. It invokes a idealist struggle of truth against falsehood, with the expectation that truth might, on its merits, overcome. Milton argued as much with Areopagitica in 1644: “Let [truth] and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.” The Licensing Order of 1643 had instituted a policy of censorship via Parliament with enforcement from the Stationers’ Company. Even if Parliament should maintain its policy of censorship, Milton argued that the truth would come out through recreations and pastimes: “If we think to regulate printing, thereby to rectify manners, we must regulate all recreations and pastimes, all that is delightful to man.” Milton resolved, “Let all with something to say be free to express themselves. The true and sound will survive.” Perhaps truth is too quaint a term to describe today’s competition of ideas, but the market retains the same expectations – that only the fittest will survive. The First Amendment, therefore, sets the stage for more speech, so we might see, emerging from the ashes, the best speech. It’s not so different from its origins.
Oliver Wendell Holmes marched the metaphor into history in 1919. Clothed in the context of laissez-faire competition, the market stepped out of the pages of his dissenting opinion to Abrams v. United States. Holmes argued, “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” To Holmes, the market exemplified the proper functioning of the First Amendment.
Holmes applies the market metaphor with a keen sense of his and others’ limitations. It is a direct descendant of Mill’s idea of fallibilism – that no matter the circumstances, we don’t know if we’re right. Holmes’ market, therefore, holds two objectives. It provides the test for truth, but as an open market, it provides an instrument for collecting voices. Its nature elicits competing ideas and pits them against one another, so we might find contradictions, new ideas, and superior points of view. Mill writes in On Liberty, “But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, till more than those who hold it.” No matter our present certainty, the market metaphor demands that we maintain our skepticism and remain alert to alternative ideas and points of view. These, after all, may unlock the hidden weakness of our own ideas – for ourselves and for those to come.
The market metaphor introduced an economic model to the idea of speech. Holmes conveyed the lineaments of a market to the freedoms contained in the First Amendment, and the common feature was the market’s ability to separate that which is true from that which is false through the primitive competition of ideas. The mechanism invokes the notion of survival of the fittest, but it’s clothed in economics, an area that commanded Holmes’ attention. Writing in The Path of the Law, Holmes said, “the man of the future is the man of statistics and the master of economic preference.” To Holmes, the market mechanism looked like Darwin’s evolution or Spencer’s survival of the fittest. Though the metaphor was new and emerged from a dissent, it became a meaningful framework for understanding the freedom guaranteed in the First Amendment. And as views on economics evolved, it would change how we understood the freedom of speech.
Economics was still a young science, but the stage had been set for economics to extend its influence to the market for ideas. Justice Brennan’s concurring opinion on Lamont v. Postmaster General transformed Holmes’ market it into a marketplace in 1965. Where Holmes had focused on sellers, Brennan marshaled the metaphor of the marketplace to protect buyers or recipients of ideas. He argued in Lamont, ”It would be a barren marketplace of ideas that had only sellers and no buyers.” A marketplace, after all, by its nature, must facilitate both sellers and buyers. Justice White introduced the fairness doctrine as a bulwark against monopolies in Red Lion Broadcasting v. FCC: “It is the purpose of the First Amendment to preserve an uninhibited market-place of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market.”
Economist Ronald Coase would would pick up the thread in 1974 and embroider a more elaborate economic view of the market for ideas. He directed a thought experiment that linked the market for ideas with the market for goods in economic terms. Having elaborated an economic analysis of speech accordingly, far from asserting that the market should be free, he urged cautions against the potential for market failure, cartels, monopolies and other aberrations that underscore the benefits of regulation.
Coase’s article, The Market for Goods and the Market for Ideas, chartered the bald equation between the free market of ideas and the free market of goods. He begins by claiming that the marketplace in ideas is just one instance of marketplaces, and “there is some danger for economists…in confining our discussion to the First Amendment rather than considering the general problem of which it is a part.” If so, a free market for ideas might justify a free market in goods and services, and the market for goods and services might help us understand the market for ideas. To the delight of free market adherents, it seemed to suggest that if a free market for ideas is good, then a free market for goods and services may also be good.
Coase evokes the language of CP Snow and the still simmering debate of The Two Cultures to assert the equivalence of markets for those of ideas and goods. Snow’s lament had focused on a perceived divide between the dominant intellectual class and an emerging class of scientists. The intellectuals played the glutton, the buffoon, to the scientists’ healthy diet of rigor and investigation – “between the two a gulf of mutual incomprehension.” Rest assured, however, “Intellectuals…are natural Luddites,” Snow advised. Coase would weave this thread with his observation, “intellectuals have shown a tendency to exalt the market for ideas and to depreciate the market for goods. Such an attitude seems to me unjustified.” Economists play the scientists in this quote, and it suggests Coase’s analysis of markets for ideas and goods should merit more of a response than the dubious assertion of an intellectual. Having positioned an equivalence between the markets for goods and ideas, he claims, “I do not believe that this distinction between the market for goods and the market for ideas is valid.” If there are two cultures in this instance, it is between those irresponsible enough to claim a difference between ideas and goods, and economists who know better.
Many took Coase’s essay as an unbridled justification for a free market in goods based on the free market in ideas. Coase starts with a claim that government regulation provides a paradox between the market for ideas and that of goods: “The paradox is that government intervention which is so harmful in the one sphere becomes beneficial in the other.” If they’re both markets, why regulate one but insist on the irrelevance of regulation to the other? Given the assumption of a free market in ideas, a free market for goods would logically follow, and many readers did. But it didn’t.
Though Coase links the market for goods with the market for ideas, he does not close the essay with a specific prescription for free markets and against regulation. It would be a mistake to think so. Indeed, he warns that the current state of speech, without regulation, indicates many instances of market failure. His approach would suggest that “the case for government intervention in the market of ideas is much stronger than it is, in general, in the market for goods.” Indeed, to Coase, the marketplace metaphor serves his view that speech may require more regulation and goods may require less, but neither should be wholly unregulated.
The limitations of the market mechanism and examples of market failure haunt Coase and the marketplace of ideas. What had started as a metaphor describing primitive competition among ideas for Milton, Mill, Darwin, Spencer and Holmes, transformed with Coase into an economic model subject to the rigor of economic analysis. The merits of the marketplace of ideas became an economic question, not a question of survival of the fittest. The economic question, however, yielded a surprising answer: the market mechanism was insufficient.
The marketplace alone, in economic terms, doesn’t necessarily produce truth, let alone better ideas over worse. Coase found the market mechanism lacking and knew that markets are prone to failure. The market mechanism pursues efficiency. It matches supply with demand according to the preferences of participants in the market. But it doesn’t guarantee the preponderance or even the presence of the best or highest quality products. A marketplace for ideas, therefore, will not necessarily provide the best ideas or the truth.
The Court, seemingly in response to Coase, brought a new economic twist to the metaphor of the marketplace of ideas in Buckley v. Valeo (1976). Though the opinion does not mention the metaphor of the marketplace, it did establish a literal equivalence between money and speech in the literature of the court. Buckley monetized speech, so an expenditure of money would be treated the same as the expression that it funded. Corporations, therefore, could express themselves through their checkbook to the candidate or cause of their choice. The check-writing itself was protected. But in so doing, it introduced a new notion of regulation.
The marketplace, after all, doesn’t exclude all regulation. When Pfizer buys advertising for Viagra, it is subject to the prevailing prices in the market. Should Pfizer decide that advertising was worth only half as much as asked, NBC or the New York Times could take it or leave it, but they will look to the market to assess the alternatives. An intransigent Pfizer might push for their price, but the availability of alternative advertisers will encourage the network and the newspaper to refuse Pfizer’s bid. It may not be on the basis of content, but speech is regulated. When an individual or corporation buys air-time or fund distribution, the market mechanism regulates speech according to an individual or corporation’s ability to pay.
The Buckley decision aimed to compensate for the market mechanism’s regulation of political speech. Buckley began with the potential immediate effects of money. Speech was money, so spending comprised the exercise of free speech by the candidate. Buckley, therefore, allowed a candidate to spend an unlimited amount of their personal funds, but if speech is money, third parties might use their contributions to express undue influence over the candidate. The Court worried that contributions might buy support from a candidate and signal “corruption and the appearance of corruption spawned by the real or imagined coercive influence of large financial contributions.” Could it be that a contributor actually or only apparently purchased their support of the contributor’s ideas? Could it be a bribe? A bribe would taint marketplace of ideas. The Court held limitations on third party contributions to limit undue influence on a candidate, but they went further.
The Court attached two additional reasons to limit third party contributions that underscored the Court’s desire to mitigate the effects of the market mechanism. These went beyond the notion that a candidate could be for sale. Instead, they focused on the ability to influence the market conditions. The Court argued, “the limits serve to mute the voices of affluent persons and groups in the election process and thereby to equalize the relative ability of all citizens to affect the outcome of elections.” Second, “the ceilings may to some extent act as a brake on the skyrocketing cost of political campaigns and thereby serve to open the political system more widely to candidates without access to sources of large amounts of money.” The Court sought to open and equalize the scope of influence by any particular contributor to a candidate, as well as limit the steady inflation of costs associated with campaigning. These conditions ran counter to the interests of the state and the citizens. The first, could be construed as a cartel. The second, a condition brought on by raw competition for influence, might outstrip the abilities and resources of others, leaving only the very wealthy to participate. The Buckley decision, almost in response to Coase, seemed intent on affirming regulation to mitigate the kinds of market failure and otherwise that Coase identified just a few years earlier.
The economic twist in the Buckley decision affirmed a view that speech has consequences and some consequences must be managed by regulation. It reprised Coase’s view that a market for ideas might be subject to the same market failure as in a market for goods. The 1990 decision, Austin v. Michigan Chamber of Commerce, would extend this perspective by acknowledging the potential for the market mechanism to distort the free exchange of ideas in the political process and aimed to reduce “the threat that huge corporate treasuries, which are amassed with the aid of favorable state laws and have little or no correlation to the public’s support for the corporation’s political ideas, will be used to influence unfairly election outcomes.” It is also the same line of reasoning that the Roberts Court undermined with Citizens United.
The metaphor of the market for ideas introduced by Holmes in 1919 gathered into an economic understanding of speech. It crested with Coase’s assertion of an equivalence between the market for goods and the market for ideas. Far from establishing a case for free markets, it suggested that markets may in fact benefit from regulation. The equivalence among markets for goods and ideas introduced features such as market failure and regulation and informed decisions such as Buckley and Austin. Speech would benefit from regulation, and anyone familiar with the classic example of whether it is ok to yell fire in a crowded theater might concur. But the majority opinion in Citizens United brought a sudden reversal.
With Citizens United, the tide went out. Kennedy’s opinion cut the premise that speech should be regulated adrift and sank many of the principles identified in Austin, Buckley among others, supporting the regulation of political speech. More speech is better than less, and any impediment is censorship. The metaphor didn’t change, but its meaning met a sudden and dramatic shift. It was still a marketplace, but the Court anchored it to a laissez-fair sensibility. Indeed, the Court returned to the idealist view from the metaphor’s initial introduction by Holmes in 1919. Holmes’ dissent became precedent.
Holmes, however, would later find difficult lessons in the market. He invoked the metaphor again in his dissent to Gitlow v. New York in 1925, but the mood had changed. Writing with Brandeis, he maintained an unsentimental view of the role of laissez-faire competition in speech. Holmes wrote, “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” The role of the market was unchanged, but his expectations had diminished. If the buyers were buying tyranny, who was Holmes or the Court to stop them?
The marketplace of ideas was no more free from imperfections than the invisible hand would always usher in optimum economic outcomes. Holmes could see the outline of market failure, monopoly and distortion in 1925, but he held his position, darkly. And it’s the same outline that we can see today with the decision of the Roberts Court in Citizens United.
Perhaps this is what Cardozo meant when he suggested that metaphors in law are to be narrowly watched.