Absolute Freedom of Speech: A Necessary Condition for the Existence of a Marketplace of Ideas?

– Adhip Amin

John Stuart Mill believed that individual freedom and the exercise of individuality is the foundation upon which rests the possibility of social progress. ‘’ It is only by the collision of adverse opinions that the remainder of the truth has any chance of being supplied’’[1]. According to Mill, one must exercise freedom and liberty in such a manner that harm is not caused to anybody else’s freedom and liberty. This is the famous ‘Harm Principle’. However, for Mill the freedom of expression was above the harm principle: ‘absolute freedom of opinion and sentiment on all subjects, practical or speculative, scientific, moral, or theological’[2]. Such did Mill weigh freedom of expression. American Jurisprudence engaged with this idea through the famous Abrams VS United States (1919) where Justice Holmes said: ‘’ we need not fear permitting the expression of falsehood because where both truth and falsity may be freely spoken, falsity will tend to be discredited and the truth will emerge.’’ [3] Neither, of these thinkers however used the phrase ‘’Marketplace of Ideas’’, though they enshrined the principle in their thought clearly: ‘’ The best test of truth is the power of the thought to get itself accepted in the completion of the market’’ [4]pronounced Justice Holmes, the term came to be associated with the idea only with the emergence of the Law and Economics movement. [5] The metaphor ‘Marketplace of Ideas’ is analogous to the markets of goods and services. Just like how a free market leads to the efficient allocation of goods and services, and maximizes utility, unfretted marketplace of ideas leads a competition and clash of ideas from which the truth will emerge.

John Stuart Mill argued that governmental constraints on the freedom of expression would interfere with the intellectual quest for ‘the truth’. First, if the truth is censored, then it obviously won’t see the light of day; secondly, if various opinions or thoughts have a fragment of truth in them, truth will not be discovered if these opinions don’t clash with each other; and finally, even if the censored opinion is completely false, it must be debated because only then will people be able accept something without being dogmatic and prejudiced, only then will people be able to realize their intellectual potential and live fulfilling lives. [6]

An important figure in the Law and Economics movement, Judge Posner argued that constitutionally entrenched freedom of expression could be justified because government restrictions on expression of thought and belief can add cost to the ‘producer’ of the idea, which can socially ‘under-produce’ information and knowledge.[7]

The underlining current in both classical liberalism and the Law and Economics Movement in terms of freedom of expression is the belief in unrestricted markets. When one thinks of liberty and freedom, one thinks of negative and positive liberty. Negative liberty is the absence of obstacles, constraints or barriers. On the other hand, positive liberty is ‘’some affirmative course of government action’’. [8] Both, classical liberalism and Law and Economics however, speak solely in terms of negative liberty whilst thinking about the freedom of expression. However, it must be understood that it is impossible to express your opinion without the rule of law. This is true in the Hobbesian sense.

The theoretical underpinnings of this model however, rest on assumptions, which aren’t congruent to social reality – irrational decision making, excludable communication technology, access limitations (either in terms of procuring information or expressing opinion) suffered by impoverished groups, technicalities of behavior manipulation, irrational responses and false propaganda. All these factors cause market failure.

Though laissez-faire economic beliefs are quite widespread amongst economists, many do agree that government regulation is needed to correct market failures. Similarly, we shall argue here that absolute freedom, in a sense, absolute negative freedom is a necessary condition, but is not by itself a sufficient condition to uphold the true spirit of the Marketplace of Ideas.

Michel Rosenfeld argues that during Mill’s time the marketplace of ideas was open to all and probably the cost to participate in it was insignificant; the channels of communication were inclusive. However, with the emergence of broadcasting, argues, Rosenfeld, only those who had access to airwaves could effectively voice their opinion. A mere absence of restrain no longer could guarantee participation in the Marketplace of Ideas. Michel Rosenfeld was writing in 1976. Since then, communication technology has developed immensely – Internet being a prime example, and along with it the emergence of new social media, and entrepreneurship and research and development in technology.

The Internet which began as Arpanet, the development of TCP/IP, and the development of the technology used in web browsers all were government projects, or collaborations with the government by scientists or government funded projects.[9] Further, the U.S State Department has committed itself to a policy of ‘’internet freedom’’, arguing for peoples right to use the Internet as freely as possible. Further, the government enacts patent laws to foster innovation and entrepreneurship in technology. Governments have played a significant role in the technological revolution.

Consumers in the Marketplace of Ideas rely heavily on certain institutions like the media, research institutions and schools (teachers). It helps to think of these institutions as ‘’credit – rating agents’’. [10] Governments often keep a check on these institutions, as they have to obtain licenses to operate. Further, governments also subsidize education for the poor so that they can participate meaningfully in the Marketplace of Ideas. Therefore some government action or positive liberty is required for placing everybody on a level playing field.

In the context of freedom of expression ‘’…unless the mental and moral faculties are used in the exercise of freedom ’’ argued Mill, ‘’human vitality and progress’’ will be hindered. [11] In North America, a number of studies have been conducted which show that voters possess remarkably low level of political knowledge. [12] This is easy true in India as well. We should have a moral obligation to make choices which are informed, to be reflective and self – critical of our and others’ beliefs and opinion. Pratap Bhanu Mehta worries that ‘’in a society where every crackpot has their say, where there seems to be no accountability for what is said, surely the greater anxiety must be the corrosion of public reason by a diminishing sense of discrimination. It is Plato’s anxiety about debasement of speech that worries more people rather than Mill’s anxiety about censorship.’’ [13]

Therefore, to conclude to up hold the true spirit of the Marketplace of Ideas we need not just absolute freedom, but absolute freedom must be accompanied with positive liberty and moral sense of accountability and responsibility.

Bibliography

Abrams v. United States, 250 U.S. 616, 630 (1919) can be retrieved at: https://supreme.justia.com/cases/federal/us/250/616/case.html

Brazeal, Gregory. “How Much Does A Belief Cost? Revisiting The Marketplace of Ideas.” Southern California Interdisciplinary Law Journal 21 (2011).

Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287, 1304 (2004).

Ingber, Stanley. “The Marketplace of Ideas: A Legitimizing Myth .” Duke Law Journal , February 1984.

McCracken, Harry. “How Government Did ( and Didn’t) Invent the Internet.” Time , July 25 , 2012.

Mehta, Pratap Bhanu. “The Crooked Lives of Free Speech.” OPEN , January 30 , 2015.

Mill, John Stuart. On Liberty and Other Essays . Oxford World Classics , 2009.

Posner, Richard. Economic Analysis of Law. Aspen Publishers; 7th ed. 2007

Rosenfeld, Michel. “The Jurisprudence of Fairness: Freedom Through Regulation in the Marketplace of Ideas.” Fordham Law Review 44, no. 5 (1976).

Shirky, Clay. “The Political Power of Social Media .” Foreign Affairs , January/February 2011.

[1] Mill, John Stuart. On Liberty and Other Essays . Oxford World Classics , 2009

[2] ibid

[3] Abrams v. United States, 250 U.S. 616, 630 (1919) can be retrieved at: https://supreme.justia.com/cases/federal/us/250/616/case.html

[4] ibid

[5] Brazeal, Gregory. “How Much Does A Belief Cost? Revisiting The Marketplace of Ideas.” Southern California Interdisciplinary Law Journal 21 (2011).

[6] Mill, John Stuart. On Liberty and Other Essays . Oxford World Classics , 2009

[7] Posner, Richard. Economic Analysis of Law. Aspen Publishers; 7th ed. 2007

[8] Rosenfeld, Michel. “The Jurisprudence of Fairness: Freedom Through Regulation in the Marketplace of Ideas.” Fordham Law Review 44, no. 5 (1976).

[9] McCracken, Harry. “How Government Did ( and Didn’t) Invent the Internet.” Time , July 25 , 2012.

[10] Brazeal, Gregory. “How Much Does A Belief Cost? Revisiting The Marketplace of Ideas.” Southern California Interdisciplinary Law Journal 21 (2011).

[11] Mill, John Stuart. On Liberty and Other Essays . Oxford World Classics , 2009.

[12] Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287, 1304 (2004).

[13] Mehta, Pratap Bhanu. “The Crooked Lives of Free Speech.” OPEN , January 30 , 2015.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s