Olivia Radics[1]

    The Free Marketplace of Ideas Metaphor

                          and the First Amendment

 “We all of us, grave or light, get our thoughts entangled in metaphors, and act fatally on the strength of them”.

George Eliot[2]




I. Introduction

Law and metaphor may seem an uneasy mix at first glance. Metaphors have traditionally been identified with the realm of literature and poetry[3], and there has been, from time to time, a certain unease and caution in law when it comes to literature. But although law’s relationship with metaphor and other literary devices might occasionally carry with it a “commonplace frown”, it is nevertheless a living and breathing relationship, one that continually enriches and colors, deepens and transforms the legal landscape.

In American jurisprudence, metaphors possess an essential role. Perhaps by nature, common law reasoning is more open to the use of metaphors; analogical reasoning occupies a prominent place in the precedent system[4] and metaphor is after all a form of analogy, although admittedly a more compact and condensed one[5], and usually less of a straight-out comparison[6]. Constitutional law in particular - perhaps more than any other area of law - lends itself rather easily to the use of metaphor, and within constitutional law, the law of the First Amendment is especially abound with metaphors[7], metaphors that have from time to time proven strong enough to shape and reshape legal doctrine.

One of the most well-known and at the same time most controversial metaphors of First Amendment theory has been the “free marketplace of ideas” metaphor, which emerged in American jurisprudence in the early 20th century[8] and has gone on to be a dominating metaphor in First Amendment literature. Dominants positions, in law and elsewhere, rarely go without some form of controversy, and the free marketplace of ideas metaphor has had its fair share of it as well. While it is one of the most often used metaphors by the U.S. Supreme Court[9], it is also one of the most attacked and ambiguous ones, no doubt a result of and testament to the inherent strength of the metaphor itself. Despite the criticism, the marketplace metaphor has proven to be a tenacious and long-lasting device. In Justice O’Connor words, it is “a metaphor that has become almost as familiar as the principle that it sought to justify”[10].

In recent times, the marketplace metaphor has come under fortified attack, as the advance of radio, television and the internet has transformed the free speech landscape, and with it the working zone of this metaphor as well. It might be time to reexamine the continued application and validity of the free marketplace of ideas, and decide whether it is still the best fortress free speech has ever built.


II. Metaphors in Law

2.1 Defining Metaphor[11]


According to the classic definition by Aristotle, “metaphor consists in giving the thing a name that belongs to something else”[12]. Much along these lines, according to classical theory “metaphor was defined as a novel or poetic linguistic expression where one or more words for a concept are used outside of their normal conventional meaning to express a similar concept”[13]. This “deviant” usage of metaphor, if taken in the literal sense, dominated early thought on metaphors[14]. Thus the classical approach often reduced metaphor to a simple tool of language based on similarities, and it had provided the basis for the long-lasting conviction that metaphor is almost always suspect[15] – an approach that was often warmly embraced by legal science as well.

Modern science, however, has come to define metaphor as “absolutely central to ordinary natural language semantics”[16], and has determined that “metaphor is a major and indispensible part of our ordinary, conventional way of conceptualizing the world”[17]. This step, an achievement of modern cognitive science, has made it clear that metaphors are more than just linguistic expressions[18]; they are essential tools for conceptual thinking in the form of cross-mappings (understanding one mental domain in terms of another)[19]. In Linda Berger’s words: “In cognitive theory, metaphor is not only a way of seeing or saying; it is a way of thinking and knowing, the method by which we structure and reason, and it is fundamental, not ornamental”[20].

“The essence of metaphor is understanding and experiencing one kind of things in terms of another”[21]. Metaphor is in part based on similarity and substitution[22]; we substitute one element with another, we forge a connection where previously none existed based on a perceived similarity in certain respects between two objects, thereby enriching the first (the yet unknown target domain) with attributes of the second (the more familiar source domain)[23]. Yet metaphor is more than mere similarity or substitution.  In essence, we fold two things (concepts) into one, without making them identical[24], and at the same time saying something essential about both[25]; metaphor is thus also the creation of new meaning[26]. As noted above, the transfer between the two phenomena is possible in part through the perceived similarities that exist between them - even if they are of an essentially different nature[27] -, and in large part because the comparison is often not simply between actual properties but between “concepts that the terms of the metaphor call to mind”[28]. Metaphor’s power thus lies in making us able to see connections and draw analogies where previously none existed[29]; it helps us to better grasp abstract notions[30], to “perceive and understand the unfamiliar” based on our experiences[31], and it is also essential for analogical reasoning[32]. Being based on our experiences and often working through the subconscious, metaphors can yield tremendous persuasive powers[33], the true extent of which we are often unaware of.

One of the dangers of using metaphors, however, lies in over-emphasizing these similarities and failing to show the dissimilarities or differences between two objects[34]. “Metaphor can, thus, have as great a potential to mislead as to enlighten”[35]. It can make us focus singularly on what we wish to see, or more precisely, on the similarity that the metaphor itself wishes to convey[36], without taking in or acknowledging what sets apart the source and the target domain, despite the fact that the difference can often be just as or even more significant than the similarity. As Professor Hibbitts points out, “the better a metaphor is, the worse this kind of problem threatens to become”[37], and an extremely good metaphor can redefine “truth on its own limited terms”[38]. The strength of certain metaphors can lead to a loss of control over their meaning and over the direction in which they take our thought process[39]. Another aspect of strong metaphors is their capability to acquire culturally defining powers once they have established roots, in which case their displacement can signal important cultural shifts[40]. Supplanting strong, rooted metaphors can be as challenging as it gets, and often fails unless an equally strong metaphor comes along to dethrone the old one.

Another danger of strong metaphors, as Martin Landau points out, is that over time, they might “congeal”: “Difficulty arises, however, when we allow a metaphor to congeal, to harden into a rigid set – when we take it literally. What we then do is to allow a presumed analogy to become an identity, an assertion of the fact that may be, and usually is, entirely erroneous.  To take a metaphor literally is to create a myth, and the more conventional myths become, the more difficult they are to dislodge”.[41]

As we shall come to see, the free marketplace of ideas might well be one of those metaphors that congealed, and have become to some extent “larger than life”, in many ways dogmas that are to stay, for better or worse, unmoved by the changing circumstances of the culture in which they exist.


2.2 Legal Metaphors


Metaphors in law can have equally defining powers as in other realms. As Thomas Ross notes: “metaphors of law are merely figures of speech. But these ‘figures’ of our speech shatter and reconstruct our realities”[42]. In many ways, the dangers inherent in the general nature of metaphor are also present in the legal use of the device and maybe even more so[43]. Law has traditionally viewed literary devices, metaphor included, with a certain amount of suspicion; nevertheless, the use of metaphor in jurisprudence - whether done consciously or not - cannot be denied, even if from time to time warnings heeding caution in its use appear[44]. American jurisprudence has always demonstrated a perhaps greater aptitude for the use of the metaphor than other jurisdictions, which might be due to the specific nature of the precedent system and the analogical reasoning it requires[45]. Constitutional law in particular provides a rather rich field for metaphors and the First Amendment has proven to be an exceedingly fertile soil for them. As Professor Tsai notes: “(…)the Court has built an arsenal of images, metaphors, and story lines with which to patrol its sphere of influence”[46], and it is worth noting that by such extensive use of metaphors, the Court has forged a fierce stronghold for itself and has drawn “much of constitutional life” within its orbit[47].

Fire, assembly, the marketplace of ideas[48], the wall of separation between church and state[49]– these are just a few of some of the ruling metaphors in First Amendment literature. Among these, the free marketplace of ideas metaphor is quite clearly one of the most well-known and at the same time ambiguous ones. In recent time, the ambiguity surrounding it has not subsided, but rather has grown, in many ways as a response to the changing landscape of the reality in which First Amendment jurisprudence - despite all beliefs to the contrary - has to exist.

In many ways, the evolution and coming to dominance of the free marketplace of ideas metaphor is one of the most fascinating stories in First Amendment literature. It is also one that is rather illustrative of the transformative power of a strong metaphor, and how it can rewrite legal doctrine and at times unleash unintended consequences with long-ranging effects, over which little - if any - control can be exercised. The free marketplace of ideas metaphor has become essential in the understanding of the First Amendment. The two have intertwined in such Siamese ways that to separate them, if that at all was possible, would be to untangle decades worth of jurisprudence. Yet, the time may be ripe to try and do so.


III. The First Amendment and the Free Marketplace of Ideas Metaphor

3.1 An Origin Story

The marketplace of ideas metaphor – “perhaps the single most recognized metaphor in all of constitutional law”[50] – first emerged in First Amendment jurisprudence in Justice Holmes’ famous dissent in Abrams v. United States[51], one of the four Espionage Act Cases[52] that were all decided in 1919. Despite its 20th century Holmesian entrance, however, the idea itself is not new to Common Law thinking. The first origins of the marketplace as a symbol of citizens exercising their right to free speech can undoubtedly be traced back to Ancient Greece, but the modern roots of the metaphor can be found - to a certain extent - in British thought.

In his 1644 work, Areopagitica John Milton wrote of the battle between Truth and Falsehood in an open and free encounter, in which Truth should ultimately always triumph:

 “Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple, who ever knew Truth put to the worse in a free and open encounter?”[53].

Milton, of course, never talks explicitly about a “marketplace” for ideas. For him, the search for Truth is a battlefield: ideas should be allowed to fight it out in open encounter, without restraint, and this open encounter or “free flow” should ultimately lead to the triumph of Truth. In fact, if anything, Milton seems to be against the sort of laissez-faire trading place later materializing in Justice Holmes’ dissent: “Truth and understanding are not such wares as to be monopolized and traded in by tickets, and statutes, and standards. We must think not think to make a staple commodity of all the knowledge in the land, to mark and license it like our broadcloth and our woolpacks”[54].

The idea that Truth will eventually always win out in open debate gained secular[55] reinforcement and elaboration in John Stuart Mill’s scholarship, most prominently in On Liberty[56], written in 1859. Mills believed that free speech was a crucial pre-condition not only for the pursuit of truth, but also for individual progress[57]. He put forward three arguments in support of free expression: (1) it is possible that the oppressed statement contains the truth - by silencing it, it is gone for good[58]; (2) although the silenced opinion can be an error, it might still contain a portion of the truth[59]; (3) even if  the received opinion is the truth, and the whole truth, unless it is “suffered to be, and actually is, vigorously and earnestly contested”[60], it will be held “in a manner of a prejudice”[61], “as a dead dogma, not the living truth”[62].

Just like Milton, Mill himself never referred to a “marketplace of ideas”[63]; this expression was a 20th century creation of American jurisprudence. In fact, the expression itself was not even coined by Justice Holmes, whose 1919 dissent in Abrams v. United States – in many ways a dissent that gave a new life to and truly defined American free speech jurisprudence – talks of a “free trade in ideas” and the “competition of the market”: “But when men have realized that time has upset many fighting fates, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas – that the best test of truth is the power of 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”[64].

Holmes himself was of course familiar with John Stuart Mill’s work, and has in fact met Mill in 1866[65]. There is also evidence that Holmes reread On Liberty some time in 1919[66], and he was clearly influenced by some of the ideas put forward by Mill. Holmes, however, replaced the battle motive that was evident in Milton’s and Mill’s work with a competition of ideas, a metaphor with a markedly more economic nature[67]. His use of the expression “trade” and competition” is representative of this shift in tone, and there is a decidedly Social Darwinist and more skeptical aspect to his free trade in ideas metaphor[68], something that was amiss in the gallant and unrelenting battle for truth in the thoughts of Milton and Mill[69]. There is still talk of a quest for truth, but the scenery has undergone a definitive change. Instead of the eternal and transcendental battle between truth and falsehood, it is now a competition between the two, a competition that bears the mark of the laissez-faire economics of the early 20th century, the reality of which surely must have been an important factor in Holmes’ choice of imagery[70]. The emphasis in Holmes’ free speech defense is on competition itself, without elaborating further on exactly under what conditions would such competition in the market result in truth, which may be – as Professor Sunstein points out – due to Holmes’ skepticism as to “whether truth, as an independent value, is at issue at all[71].

Holmes, most notably through his free speech dissents, has been a determinative force – together with Justice Brandeis – in giving shape to modern American free speech jurisprudence. His “free trade in ideas” was the root of the “marketplace of ideas”, the expression that was coined by Justice Brennan in 1965. In Lamont v. Postmaster General, Justice Brennan wrote: “The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers”[72]. The marketplace metaphor was thus, for better or worse, born.

The change that Justice Brennan introduced – a marketplace instead of free trade – was not trivial. As David Cole points out: “Brennan localized the metaphor; he gave the market a sense of place”[73]. By doing that, the free trade in ideas, representative of the laissez-faire economics rampant at the time of its Holmesian conception, becomes the marketplace of ideas, and as such, “it conjures up the Greek ‘agora’, the central meeting place for exchange”[74]. The change offered by Brennan was no small matter. As Cole points out, the Greek agora was not a simple market, where only goods and money were exchanged; it was truly a marketplace of ideas, operating as a public assembly, where “all hawkers, criers, buyers, and sellers were admitted”[75] This image is indeed very different from the battle or combat scenarios of Milton and even Mill, and it is also a step - a small, yet significant one - away from Holmes’ laissez-faire trading place[76], echoing perhaps a Madisonian image of deliberative democracy[77], which was amiss from Holmes’ free trade metaphor. This echo, however, is misleading, as we shall see.

It is through Justice Brennan’s final shaping and transformation of the Miltonian quest and grapple for truth and the Holmesian free trade in ideas that the marketplace of ideas metaphor finally emerged from its caterpillar stage[78]. And how it flew. Since its coinage in 1965, the marketplace metaphor has been used in defense of free speech in such diverse locations and fora such as classrooms[79], libraries[80], shopping centres[81], and the broadcast media[82], to mention but a few[83]. The marketplace of ideas has become the definitive metaphor and image associated with broad protection of free speech in American jurisprudence. The two became inseparable in a symbiotic relationship that has done much to enrich and liven up both.

Whence the popularity and strength of the metaphor? Professor Tsai argues that several factors contributed to its rise: the nation’s willingness to give an enhanced role to the judiciary in the administering of free speech; the pervasiveness of economic language in constitutional law due to the endless cycles of recession and prosperity; and its resonance with American ideals, such as the ‘impulse to commodify, repackage and distribute”[84].

It is also no doubt important that the marketplace metaphor – through images of the Greek agora or the assembly, as noted by Cole[85] – recalls a somehow familiar and romantic image, that of the marketplace of the Athens of Socrates, the town halls and assemblies of early America, the republican vision of the Founders. It has once represented - and still does today - a very appealing image of American discourse on public affairs, one that seemingly reaches back to the very roots of American democracy. Once, at the birth of substantive American free speech jurisprudence – during and after World War I –, and in the decades that followed and in which that jurisprudence was truly formed, it might have served free speech well, if inaccurately even then. But it is questionable whether it still does so today or whether the marketplace is inherently - and more and more so - flawed.


3.2 Failure in the Marketplace


The marketplace of ideas metaphor is not only the most well-known and perhaps most often used metaphor of American constitutional law, it is also one of the most ambiguous, controversial and contested ones. Many in legal scholarship have questioned the continued validity of the metaphor - or even its original validity in the first place-, and with good reason.

For once, much has changed since 1919. The reality in which free speech exists has undergone an enormous amount of transformation since Holmes’ seminal Abrams dissent, not to mention Mill’s or Milton’s era. Broadcasting over the radio and television, and in more recent times, the appearance of the internet has had much to do with this transformation.

Besides changes in the free speech market, laissez-faire in the field of economics has been defeated; government regulation has been deemed necessary to correct for inevitable market failures. Yet at the same time, the First Amendment still seems to embrace such a laissez-faire approach, and the free marketplace of ideas metaphor has become a bastion of said stance, a last vestige of an era gone by.

The question lingers: what, if any, kind of market failures is this present marketplace of ideas susceptible to? To see that, we must remind ourselves the origins and purpose of the marketplace of ideas: if indeed the idea can be traced back to Milton, Mill and eventually Holmes, then the answer is: Truth; the principal objective for creating and protecting a free marketplace of ideas would be the quest for truth[86]. For Milton and Mill, the assumption was that in the free, open battle of the ideas, Truth would finally emerge. Whether Holmes, the skeptic, was convinced to the same extent of the discoverability of truth is another matter entirely[87], as it is also questionable how much genuine belief in the discovery of objective truth there is today. One of the ‘great innovations’ of our times seems to have been the utmost disappearance of any and all such beliefs, even in the field of science[88]. Yet truth and falsehood still matter, and very much so, in this day and age. The United States has just fought a war based on clearly false statements. There are still those who don’t believe that climate change is real. In today’s volatile economy, holding accurate information is vital. The difference between truth and falsity is not trivial, and even less so in the fields of politics, economics, and law. The possession of information, the possession of the truth - today perhaps more than ever - means power, and in C. Edwin Baker’s words: “An ideal democracy depends on, or at least, is furthered by citizens being adequately informed”[89]. Therefore it would be hard not to conclude that truth does indeed still matter.


3.3 The Problem of Diversity

If we believe that truth is worth discovering and is in fact discoverable, we would still have to settle on the who and how of the process; in the marketplace of ideas, how shall we establish that Truth has indeed emerged and has won? It is of course questionable whether the market can actually lead to the discovery or unearthing of some sort of objective truth. If we place absolute faith in the system, it would seem that in the marketplace, whoever commands the majority’s support with regards to the views he puts forward, has the truth as well (or at least one version of it); yet even if such scenario was to be possible or even acceptable, it is highly doubtful that official adoption would necessarily follow suit[90]. Such an official adoption of one singular objective truth would require of the participants of the market to put aside their differences, their divergent views and conflicting interests – a condition that is highly unlikely to come to existence[91]. And there remains the question whether what the majority supports in the market, in other words the goods with the most buyers, is indeed truth or - to remain with the goods analogy - the best product out there[92].

The problem is that although undoubtedly there is diversity in the marketplace, that diversity may not be as colorful as one would presume. Free speech may well be an essential precondition to discovering truth, but it may not be enough in and of itself. As Professor Ingber points out, in today’s society, through various processes of socialization, government “strongly encourages the public to favor or disfavor certain views”[93]. Such socialization occurs in a variety of contexts and ways, such as the public school system, and is quite effective in subtly - without expressly forbidding any views - rendering individuals predisposed to certain perspectives, those being usually the ones supporting the status quo[94]. Of course, it is not solely government that encourages such socialization; society at large has always been keen to preserve the status quo as well. There is always a strong centre, a mainstream, and unusual attitudes and approaches are often relegated to the perimeters. Thus it is arguable how much true freedom exists in the marketplace of ideas, or how much truth a free, unregulated marketplace will actually convey. While it is tempting to see the marketplace of ideas as a space where conventional and unusual goods (ideas) are happily co-exist side-by-side (“the happy cacophony of democracy”[95]), this image is of course at best illusory (and at worst, fatally misleading). As Professor Bosmajian says: “In the old market in the square, new, even strange and unfamiliar wares being offered for sale at one stall were placed next to the stall offering familiar, tested items; the unusual, unorthodox product appeared next to the orthodox”[96]. Not so in the free marketplace of ideas; government may and does ban certain types of speech from entering the marketplace[97], and the buyers/listeners might be disinclined to listen to certain type of speech as well[98]. And while there are undoubtedly individual benefits to speaking without being heard, that is not the main objective of those entering the marketplace of ideas. Unorthodox ideas often get sidelined as a result of government action or of societal disposition and negative responses towards them[99]. In truth, the marketplace is never completely free, as certain types of speech cannot even enter, and even if it was an entirely free market, there would be an inevitable and inherent bias in it, supporting “entrenched power structures and ideologies”[100].


3.4 The Problem of Access

A related failure of the free marketplace of ideas is access to the marketplace, which is undeniably unequal. Simply put, it costs money to make your voice heard in the marketplace of ideas these days, and a lot of it. Owen Fiss says: “For the most part, the Free Speech Tradition can be understood as a protection of the street corner speaker”[101]. The premise of the First Amendment is the protection of individual autonomy; by leaving individuals alone, the ensuing free discussion will lead to a lively political conversation, and by extension, a lively and rich political life[102]. But, as Professor Fiss notes elsewhere: “A legal regime that does no more than protect the street corner speaker will not ensure a vibrant democracy, because in this age the character of public debate is determined not by what the street corner speaker has to say, (…) but rather by the media, especially television”[103]. The street corner that once formed a rich free speech tradition and was the source of the First Amendment is all but gone.

Our conditions have indeed changed; the marketplace has undergone such transformation that the old construction does not yield the intended results; in Al Gore’s words: “The ‘public square’ that gave birth to America has been transformed beyond all recognition”[104]. For Gore, the public square is the democratic conversation, much along the lines of Madisonian’ deliberative democracy, and as he is right to observe, the new public square of America is television. While print media is struggling to survive[105], and the internet, while influential - not to mention the enhanced role of social networking sites (think Tahrir Square and Facebook and Twitter) -, has not yet claimed television’s throne, it is mainly through television that the conversation on and of democracy takes place[106]. But this marketplace, and the democratic conversation itself, is a far cry from what the creators of the First Amendment ever imagined. It is a very different world out there.

What we have today is a scarcity of avenue for effective communication[107]. Although it is still possible to stand out on the street corner or in a public park, the effectiveness of that communication is doubtful, the size of the audience reached – in most cases – modest. The most effective, and thus the most powerful means of communication today is television. The average American watches an astonishing 5 hours a day of television[108]. While it is true that today’s agora or public square has many faces, there can be no doubt that the most well-known one is that of television, and this development must radically transform our conception of a free marketplace of ideas.

The problem with television (well, one of them) is access. It costs money, you see, and plenty of it. In the good old days, as noted earlier, one could simply print pamphlets, or anchor himself at the ominous street corner or in a public park and spread his wisdom, open a discussion, engage others in debate, and while nothing prohibits one from doing so today, unless you are Steven Colbert or Jon Stewart[109], it is not going to be as effective as reaching millions of viewers on television. Politics has not been slow on the uptake, and today the majority of the political discussion or the “democratic conversation” takes place on television. But to enter that conversation is not cheap; both the printed press and broadcast media are mostly defined by the profit principle[110]. Television advertising costs are prohibitive, and for national primetime political ads run well in the millions, which naturally reflects on the exponentially growing dimension of campaign costs. In the 2010 midterm election, a record amount of $4 billion was spent[111], more than in any previous midterm cycles. The 2008 presidential race was also a record-setter[112], and based on a more lenient campaign finance landscape due to the 2010 decision in Citizens United v. FEC[113], a spending spree of cosmic proportions is predicted for the 2012 presidential elections. And where does all the money go? Up to 80% of the campaign budgets of the Republican and the Democratic Parties goes to the purchase of 30-second television ads[114]. Where does the money come from? No doubt individuals contribute too, but rather tellingly, corporate spending has reached epic proportions recently[115], especially since the Supreme Court removed spending limits for these entities[116].  It is a simple equation: more money buys more speech, and those with the most resources can very well dictate how the conversation of democracy progresses. This inevitably leads to a skewed and rather less colorful and rich political discussion, and not the “uninhibited, robust and wide-open” debate[117] that is the mantra of the First Amendment.

What we are witnessing today is a classic clash between capitalism and democracy; the two are indeed “an uneasy mix”[118]. Unfortunately for democracy, capitalism tends to win[119]. This is not saying that capitalism in and of itself is inherently evil and incompatible with democracy; rather, the clash is caused by an unequal social structure where power is measured almost singularly by economic status[120]. But deliberative democracy, as Professor Sunstein points out, ‘”is premised on and even defined by reference to the commitment to political equality”[121]. Unfortunately, political equality has become somewhat of a dirty word in terms of free speech, and most prominently in the field of campaign finance, the Supreme Court has – since Buckley v. Valeo[122] - often expressed a commitment to keep equality concerns out of the discussion[123], and in light of recent developments, it is unlikely that this would change in the near future. For some, this approach has unfortunate echoes of the Lochnerian pre-New Deal era, when any intervention by the government in the field of economics was considered as impinging upon established rights of property and freedom of contract; the Constitution was interpreted as a safeguard against any government regulation interfering with these rights, in essence requiring a neutrality on the part of government, signaled by the requirement of laissez-faire[124]. As Professor Sunstein notes, the major fault of this approach was that “it treated existing distributions of resources and opportunities as prepolitical and presocial – as given rather than chosen – when in fact it was not”[125]. The rights and entitlements that people had was in fact the result of government regulation and conferment; the laws of property and contract that made possible such distribution of resources were set by the state, and while these rules are not in and of themselves inherently bad, and in fact are essential for a functioning society, the resulting distribution can indeed be unfair at times[126]. It was to correct the failures of this laissez-faire approach, and to in some ways remedy the resulting inequalities that the New Deal came to existence. The Court’s present approach to free speech - especially when it comes to campaign finance legislation -  is reminiscent of the pre-New Deal approach noted above, and it is all the more serious as it is after all the “uninhibited, robust, and wide-open”[127] discussion of public affairs that is at stake.

The democratic conversation can only function the way it is supposed to if there is equality in the market, which at present is not so. The “distorting effects of immense aggregations of wealth”[128] are quite detectable and tangible in today’s free speech landscape, and together with the related problem of access, and lack of diversity, undermine the validity of the free marketplace of ideas metaphor: whereas “in the old marketplace there was equality of access to consumers and equal facilities to display one’s goods and wares”[129], today no such equality can be found in the free speech market. Yet the hold of the marketplace of ideas metaphor is unrelenting, and its role is essential in excluding equality concerns from First Amendment jurisprudence.


IV. Conclusion


Where lies the answer then? It is unlikely that a New Deal-esque overhauling of the First Amendment and the marketplace metaphor is going to take place, not that bringing down the Establishment and our present social set-up should really be the answer either: “The first amendment does not require a revolution”[130]. That it may not. But what it may is a paradigm shift, a change in approach towards the role of government in the protection of free speech. Traditionally, and most certainly in the understanding of the free marketplace of ideas metaphor, government has always been considered as the major, if not only, enemy of free speech. The First Amendment was in fact built on such conception of government, as a means of ensuring that the street corner speaker would not be harmed by intervention by the state. This attitude is also reflected in the free marketplace of ideas metaphor’s suggested laissez-faire approach.

But this approach might no longer be valid; in fact, it may have seized to be reflecting reality a long time ago. In many instances, it is the very fabric of society that makes it prone for distorting the political debate, a fabric that is no doubt a result of the laws of the country, and in this new reality, it is sometimes through the balancing acts of government that a free political discussion can be achieved[131]. It is indeed the strangest strike of fate that it should be government after all that might be capable and willing to protect the speaker on the corner. Of course, all government regulation on speech needs to be watched with caution, and although the democratic conversation is or at least should be premised on political equality, caution is also needed in encompassing that ideal in First Amendment practice[132].  

The marketplace of ideas metaphor no longer reflects reality accurately; it is the remnant of an era long gone by. In more than one ways, this metaphor has indeed “congealed”, became a reality unto itself, taken too literally: a myth[133]. It is not to say that - like all myths eventually - it is not attacked relentlessly. Interestingly enough, both who want no government regulation in the free speech sphere and those who do, turn to this metaphor as a reasoning device[134]. For those against government regulation, it is the perfect emblem of laissez-faire libertarianism, whereas for those who would like government to regulate the market - and thus make it more egalitarian and accessible - use specifically this laissez-faire assumption of the metaphor to argue that this once already defeated Lochnerian approach no longer has a place in today’s political reality[135].

It is also not a wise choice to put all the weight of the free speech doctrine on one single metaphor. It is a daunting, and perhaps impossible task to pull the full spectra of free speech aspects in one metaphor, and yet the marketplace of ideas metaphor has indeed been charged to do so in the past decades[136]. It is very hard to imagine - as of yet - a complete dethronement of the marketplace metaphor, however inadequate and even misleading it may be. The waves are crushing against the rock, but it only crumbles, does not give. Perhaps in time, an equally forceful metaphor will take its place or share with it in dominance over First Amendment free speech jurisprudence.

No doubt, the marketplace of ideas metaphor reflects an important part of American culture. As our metaphors define us, they are also defined by us, and the marketplace metaphor, even if misleadingly, represents or at least used to represent an important facet of the American conception of the democratic conversation, perhaps through reaching back through the ages to the Founding Era’s town halls and meeting places, the agoras of early America, the “happy cacophony” that once was a defining characteristic of a democracy emerging from under tyranny. It is without a doubt hard to do away with a metaphor that has become such a fixture of a country’s self-image. Surely, there might be other metaphors that would reflect a different and perhaps more accurate face of American free speech, providing a similarly strong bastion for it[137]. Or there might not. While metaphors have - as they should and as they inescapably do - an undeniable role in law, and can participate and be helpful in shaping legal doctrine, in anchoring abstract notions with more graspable images as well as in enriching and livening up the legal world, we should be wary to substitute theory with metaphors[138], for in the end they might control us, instead of us controlling them.



[1] Visiting Professor at University of Baltimore School of Law. This Article would not have been possible without the generous help of the Rosztoczy Foundation. The Author would also like to thank Professor Phillip J. Closius (University of Baltimore School of Law) for his support and Tamás Nagy (SZTE-ÁJTK) for his unrelenting help, comments and friendship. This Article is dedicated to Krisztián, for everything.

[2] George Eliot, Middlemarch, Chapter X., Kindle edition. Retrieved from Amazon.com.

[3] Bernard J. Hibbitts, Making Sense of Metaphors: Visuality, Aurality, and the Reconfiguration of American Legal Discourse, 16 CARDOZO L. REV. 229, 234 (1994).

[4] For more on the nature of analogical reasoning, see EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING (Phoenix Books in Law, 1962). See also: Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741 (1993).

[5] Michael Boudin, Antitrust Doctrine and the Sway of Metaphor, 75 GEO. L. J. 395, 406 (1986).

[6] Id. at 406-407.

[7] It is perhaps no accident that the free speech tradition also contains mostly analogical reasoning. See Sunstein, supra note 4, at 759. For more on prominent First Amendment metaphors, see Robert L. Tsai, Fire, Metaphor, and Constitutional Myth-making, 93 GEO. L. J. 181 (2004).

[8] Abrams v. United States, 250 U.S. 616 (1919).

[9] According to W. Wat Hopkins, twenty-four of the forty-nine justices who served on the Court for at least one year between 1919 and 1995 used the marketplace of ideas metaphor at least once, and these uses appeared in 125 opinions in 97 cases. W. Wat Hopkins, The Supreme Court Defines the Marketplace of Ideas, 73 JOURNALISM & MASS COMM. Q. 40, 41 (1996). Some of the most important Supreme Court cases that make mention of the marketplace ideas metaphor are: Widmar v. Vincent, 454 U.S. 263, 267 n.5 (1981); Board of Educ. v. Pico, 457 U.S. 853, 866 (1982); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981); Consolidated Edison v. Public Serv. Comm’n, 447 U.S. 530, 537-538 (1980); Virginia State Bd. Of Pharmacy v.Virginia Citizens Consumer Council, 425 U.S. 748, 760 (1978); Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 248 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969); FCC v. Pacifica Found, 438 U.S. 726, 745-746 (1978); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967); Texas v. Johnson, 491 U.S. 397, 418 (1989); Bigelow v. Virginia, 421 U.s. 809, 826 (1975).

[10] Justice O’Connor (dissenting) in Shapero v. Kentucky Bar Ass’n, 486 U.S. 466, 483 (1988).

[11] The word metaphor in Ancient Greek means “transfer” or “carry over”.

[12] Aristotle, Poetics 1457b, in Poetics, Kindle Edition. Retrieved from Amazon. Aristotle provides the first in-depth philosophical analysis of metaphor in Poetics. For a modern approach on metaphors, see PHILOSOPHICAL PERSPECTIVES ON METAPHOR (M. Johnson ed. 1981).

[13] George Lakoff, The Contemporary Theory of Metaphor, in METAPHOR AND THOUGHT (Andrew Ortony ed., 2d ed.1993), at 202.

[14] Thomas Joo, Contract, Property, and the Role of Metaphor in Corporations Law, 35 U.C. DAVIS L. REV. 779, 782 (2002).

[15] Linda L. Berger, What Is the Sound of a Corporation Speaking? How the Cognitive Theory of Metaphor Can Help Lawyers Shape the Law, 2 J. ASS’N LEGAL WRITING DIRECTORS 169, 172 (2004).

[16] Lakoff, supra note 13, at 203.

[17] Id. at 204.

[18] Id. at 209.

[19] Id. at 203. See also: GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY 117 (The University of Chicago Press, 2003): (…)Metaphors allow us to understand one domain of experience in terms of another. This suggests that understanding takes place in terms of entire domains of experience and not in terms of isolated concepts”. See also: Berger, supra note 15, at 169.

[20] Berger, supra note 15, at 170.

[21] Lakoff & Johnson, supra note 19, at 5.

[22] Louise A. Halper, Tropes of Anxiety and Desire: Metaphor and Metonymy in the Law of Takings, 8 YALE J.L. & HUMAN. 31, 39 (1996). See also: Jeanne L. Schroeder & David Gray Carlson, The Appearance of Right and the Essence of Wrong: Metaphor and Metonymy in Law, 24 CARDOZO L. REV. 2481, 2514 (2003).

[23] See: Lakoff, supra note 13, at 203; Mark Johnson, Mind, Metaphor, Law, 58 MERCER L. REV. 845, 857-858 (2007).

[24] Schroeder, supra note 22, at 2515.

[25] Halper, supra note 22, at 39-40. See also Berger, supra note 15, at 169.

[26] Berger, supra note 15, at 175. See also Monroe Beardsley, cited in HAIG BOSMAJIAN, METAPHOR AND REASON IN JUDICIAL OPINIONS 44 (Southern Illinois University Press, 1992).

[27] Mark Johnson, Introduction, in PHILOSOPHICAL PERSPECTIVES ON METAPHOR, supra note 12, at 6.

[28] Berger, supra note 15, at 175-176.

[29] Stephen L. Winter, The Metaphor of Standing and the Problem of Self-governance, 40 STAN. L. REV. 1371, 1383 (1987).

[30] Lakoff, supra note 13, at 204.

[31] Berger, supra note 15, at 171.

[32] Lakoff, supra note 13, at 235. See also Joo, supra note 14, 783-786.

[33] Berger, supra note 15, at 176-177.

[34] Winter, supra note 29, at 1386-87.

[35] Id. at 1387.

[36] Lakoff & Johnson, supra note 19, at 10: „In allowing us to focus on one aspect of a concept (...), a metaphorical concept can keep us from focusing on other aspects of the concept that are inconsistent with that metaphor”.

[37] Hibbitts, supra note 3, at 234.

[38] Id.

[39] See Bosmajian, supra note 26, at 39.

[40] Hibbitts, supra note 3, at 237. See also: Lakoff & Johnson, supra note 19, at 145: “Much of cultural change arises from the introduction of new metaphorical concepts and the loss of old ones”.

[41] Martin Landau, as cited in Brian K. Pinaire, A Funny Thing Happened on the Way to the Market: the Supreme Court and Political Speech in the Electoral Process, 17 J.L. & POL. 489, at 545-546.

[42] Thomas Ross, Metaphor and Paradox, 23 GA. L. REV. 1053, 1076 (1989).

[43] As Lakoff and Johnson note: “Political and economical ideologies are framed in metaphorical terms. Like all other metaphors, political and economic metaphors can hide aspects of reality. But in the area of politics and economics, metaphors matter more, because they constrain our lives”. Lakoff and Johnson, supra note 19, at 236. The very same can be said of law as well.

[44] As Benjamin Cardozo declared: “Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it”. Berkey v. Third Ave, 244 N. Y. 84 (1926), at 94. A similar, albeit even stronger warning can be detected in Lord Mansfield’s words: “nothing in law is so apt to mislead as a metaphor”, quoted in Ross, supra note 42, at 1057 n. 9. For more “warning words” by U.S. Supreme Court Justices of the dangers of metaphors, see Bosmajian, supra note 26, at 12.

[45] See supra note 4. Professor Joo, however, points out that there are important differences between the classic view of Common Law analogical reasoning and the analogical reasoning described by cognitive scientists. See Joo, supra note 14, at 785.

[46] Tsai, supra note 7, at 237.

[47] Id.

[48] For a detailed overview of the fire, assembly and marketplace metaphors, see Tsai, supra note 7. For yet more on the fire metaphor in First Amendment jurisprudence, see also Bosmajian, supra note 26, 186-198.

[49] For more on the wall of separation metaphor, see Ross, supra note 42, 1063-1068.

[50] Tsai, supra note 7, at 230.

[51] Supra note 8.

[52] Schenck v. United States, 249 U.S. 47 (1919), Frohwerk v. Unites States, 249 U.S. 204 (1919), Debs v. United States, 249 U.S. 211 (1919). For a detailed account of the Espionage Cases and Justice Holmes’ role in them, see: David Cole, Agon at Agora, Creative Misreadings in the First Amendment Tradition, 95 YALE L. J. 857, 879-888 (1986).

[53] JOHN MILTON, AEROPAGITICA, Kindle edition. Retrieved from Amazon.

[54] Id.

[55] On the decidedly religious nature of John Milton’s thoughts in Areopagitica, and the inseparability of his theory from his theology, see: Vincent Blasi, Milton’s Areopagitica and the Modern First Amendment, YALE LAW SCH. OCCASIONAL PAPERS, Paper No. 6., (1995). Available at http://digitalcommons.law.yale.edu/ylsop_papers/6/.

[56] JOHN STUART MILL, ON LIBERTY (Dover Thrift ed.).

[57] Id., Chapter II-III.

[58] Mills, supra note 56, at 14, 43.

[59] Id. at 38, 43.

[60] Id. at 43.

[61] Id.

[62] Id. at 29.

[63] Vincent Blasi, Holmes and the Marketplace of Ideas, 2004 SUP. CT. REV. 1, 24 (2004).

[64] Abrams, 250 U.S. at 630.

[65] David S. Bogen, The Free Speech Metamorphosis of Mr. Justice Holmes, 11 HOFSTRA L. REV. 97, 113 (1982).

[66] Irene M. Ten Cate, Speech, Truth, and Freedom: An Examination of John Stuart Mill’s and Justice Oliver Wendell Holmes’ Free Speech Defenses, 22 YALE J.L. & HUMAN. 35, 38 (2010); Blasi, supra note 63, at 19.

[67] Although it is worth keeping in mind that it was Holmes himself in Lochner v. New York who said that „the 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics”, Lochner v. New York, 198 U.S. 45, 75 (Holmes, J. dissenting) (1905), stating in essence that the U.S. Constitution does not (or should not) embrace any or all economic or other theory. Holmes was certainly influenced by a number of philosophical ideas throughout his life, but how much he thought that Supreme Court should give way to these is a different matter. See Bogen, supra note 65, 121-122.

[68] Bogen, supra note 65, at 121.

[69] As Professor Sunstein points out, the two foundations of Holmes’ free speech protection is skepticism and the competition in the market. Holmes’s skepticism is essential in contouring his version of free speech defense, just as much as for example Justice Brandeis’ optimism is essential in defining his free speech theory. See CASS R. SUNSTEIN, DEMOCRACY AND THE PROBLEM OF FREE SPEECH 25-26 (Free Press 1995).

[70] Bosmajian, supra note 26, at 201.

[71] Sunstein, supra note 69, 25-26.

[72] Lamont v. Postmaster General, 381 U.S. 301, 308 (1965).

[73] Cole, supra note 52, 894.

[74] Id.

[75] Id.

[76] Although admittedly, in 1919, at the time Holmes used the free trade in ideas expression, the trading place he had in mind might have still been “a place set aside in a town for small farmers and tradespeople to bargain, trade, buy, and sell”. Bosmajian, supra note 26, at 60. Historically, markets have often, if not always, entailed more than just trading goods and services. Perhaps one of the most unnoticed, yet relevant changes of modern times has been the slow disappearance of the busy, bustling and noisy marketplace, having been replaced by silent supermarkets. The “happy cacophony” of democracy is all the poorer for it. Bosmajian, id. at 60-61. But perhaps an even more determinative change occurred in the free speech scene with the appearance of radio, television and internet, which media have dramatically transformed its landscape.

[77] See Sunstein, supra note 69, 18-20.

[78] The “free trade in ideas” metaphor was used in this form by the Court for the first time in 1945, in Thomas v. Collins, 323 U.S. 516, 537 (1945). Before that, the metaphor appeared only one and only so that it could be rejected, in Bridges v. California, 314 U.S. 252, 283 (1941). See Tsai, supra note 7, at 230-231.

[79] Keyishian v. Board of Regents, 385 U.S. at 603.

[80] Right to Read Defense Committee v. School Committee, 454 F. Supp. 703, 715 (1978).

[81] Pruneyard Shopping Centre v. Robins, 447 U.S. 74, 97 (1980).

[82] Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390.

[83] For more see Bosmajian, supra note 26, 49-52; Cole supra note 52, 894.

[84] Tsai, supra note7, at 231-232.

[85] See supra notes 73-75.

[86] Stanley Ingber, The Marketplace of Ideas: A Legitimizing Myth, 1984 DUKE L.J. 1, 8 (1984). It is worth noting, however, that - as Professor Ingber points out - free speech is often viewed as a „corollary to democratic theory”.

[87] See supra note 71.

[88] Ingber, supra note 86, at 25.

[89] C. Edwin Baker, Advertising and a Democratic Press, 140 U. PA. L. REV. 2097, 2176 (1992).

[90] Ingber, supra note 86, 27.

[91] Id.

[92] See also Sunstein, supra note 69, at 19.”What people now prefer and believe may be a product of insufficient information, limited opportunities, legal constraint, or unjust background conditions”.

[93] Id. at 28.

[94] Id.

[95] See supra note 76. The expression „happy cacophony” comes from Landry v. Daley, 280 F. Supp. 968, 970 (1968).

[96] Bosmajian, supra note 26, at 64.

[97] The First Amendment does not protect obscenity, hate speech, advocacy of crime , commercial speech and libelous speech. See Sunstein, supra note 69,  at 7.

[98] See e.g. Feiner v. New York, 340 U.S. 315 (1951).

[99] See also Owen M. Fiss, Silence on the Street Corner, 26 SUFFOLK U. L. REV. 1, (1992).

[100] Ingber, supra note 86, 85-86.

[101] Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408 (1986).

[102] Id. at 1409-1410. See also, Sunstein, supra note 69, at 5: “(…)The First Amendment should be understood as embodying a commitment to a strong conception of neutrality”.

[103] Fiss, supra note 101, at 2-3.

[104] Al Gore, Climate of Denial, ROLLING STONE, July 7-21, 2001, at 82.

[105] As both Professors Sunstein and Bosmajian note, recent developments in the print media, such as the growing influence of advertising, have essentially resulted in one-newspaper cities, where one would be hard pressed to talk about a free marketplace of ideas anymore. See Sunstein, supra note 69, at 62-63; Bosmajian, supra note 26, at 71-72.

[106] Gore, supra note 104, at 81-82.

[107] See Fiss, supra note 101, at 1411-1412.

[108] See: http://blog.nielsen.com/nielsenwire/wp-content/uploads/2011/04/State-of-the-Media-2011-TV-Upfronts.pdf (Last visited September 9, 2011).

[109] http://www.rallytorestoresanity.com/; http://www.cbsnews.com/8301-503544_162-20021284-503544.html (last visited September 9, 2011).

[110] See Suntein, supra note 69, at 17.

[111] http://www.usnews.com/news/articles/2011/01/07/2010-set-campaign-spending-records (last visited September 9, 2011).

[112] http://www.politico.com/news/stories/1108/15283.html (last visited September 9, 2011).

[113] Citizens United v. FEC, 130 S. Ct. 876 (2010). For a detailed discussion of the case, see Olivia Radics, Campaign Finance Law and Corporate Political Speech in the United States in Light of Citizens United v. FEC, DE IURISPRUDENTIA ET IURE PUBLICO, 2011/3. 138-164., http://dieip.hu/2011_3_10.pdf

[114] Gore, supra note 104, at 82.

[115] See: http://www.citizen.org/documents/Citizens-United-20110113.pdf (last visited September 9, 2011).

[116] Supra note 113.

[117] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[118] Cole, supra note 52, 237.

[119] See also Fiss, supra note 101, 1406.

[120] Id. at 1412.

[121] Sunstein, supra note 69, at 20.

[122] Buckley v. Valeo, 424 U.S. 1 (1976).

[123] “(…)The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment”. Buckley, 424 U.S. at 48-49.

[124] See Sunstein, supra note 69, at 29.

[125] Id. at 30.

[126] Id. at 30-32.

[127] Supra note 117.

[128] Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 660 (1990).

[129] Bosmajian, supra note 26, at 66.

[130] Fiss, supra note 101, at 1416.

[131] See Fiss, supra note 101, at 1425.

[132] The merits of such approach, and the ways to achieve it without harming freedom of speech deserves and requires further discussion, but it is unfortunately not within the purpose or possibilities of the present Article to embark on such discourse.

[133] See supra note 41.

[134] Tsai, supra note 7, at 234.

[135] Tsai, id. at 234.

[136] Id. at 235.

[137] How different American free speech doctrine would be if the battle or the quest metaphor present in Mill’s and Milton’s work had prevailed! See also: Bosmajian, supra note 26, at 201. It would no doubt be an interesting thought experiment to take these metaphors further and see how they would affect, in what direction they would take American free speech doctrine.

[138] Bosmajian, supra note 26, at 201.