Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas
63 Pages Posted: 4 Aug 2016 Last revised: 7 Mar 2019
Date Written: February 2, 2019
The view that the First Amendment protects a marketplace of ideas figures prominently in Supreme Court decisions striking down laws that aim to curb the influence of money in politics. Such laws purportedly interfere with the free flow of information through society. Yet, the modern market metaphor relies upon legal fictions about how we reason and how ideas flourish to justify judicial intervention. This elides a core question: how might a “marketplace of ideas” actually function? Without an answer, one cannot say that a law “interferes” with it.
This Article proposes a theory of competition based on a simple rule: content should spread based on the judgments we make as consumers of ideas. Drawing on the insights of Madison, Holmes, and modern empirical study, the theory recognizes that social identities shape our reasoning and that relationships play a critical role in determining how (and which) ideas travel through society. Building from this foundation, the Article suggests that content, speakers, and other intermediaries compete for our time and attention as consumers of information. Our decentralized decisions about what content to consume and which speakers to trust are how we confer value in this marketplace and how we determine which ideas do (or do not) earn a larger share of our time and attention.
By respecting the constitutional significance of these individual choices, the market metaphor can be tied more closely to the First Amendment’s text and purposes. And, by requiring content to earn our attention, a clear line can be drawn between expenditures that promote free competition (such as “speech costs” associated with producing content or “press costs” associated with distributing content to meet attentional demand) and expenditures that interfere with free competition (such as advertising costs for access to our attention). Because advertisements by definition contain content that no one chose to consume from speakers that no one chose to trust with their attention, they circumvent the competitive process and should not be accorded full constitutional protection.
Based on this thicker conception of the marketplace, the Article proposes legislation to promote free competition between ideas consistent with the First Amendment by curbing political-advertising expenditures while leaving speech and press expenditures unlimited. Finally, the Article explores how this competitive theory and legislative proposal might operate in practice, with the 2016 presidential election providing a case study.
Keywords: First Amendment, free speech, freedom of the press, campaign finance, election law, political law, democracy, contribution, expenditure, marketplace of ideas, election, campaign, antitrust, competition, Bellotti, Buckley, Austin, Citizens United, corruption, political equality, FECA, BCRA, FEC
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