Fighting for Attention: Democracy, Free Speech, and the Marketplace of Ideas
100 Pages Posted: 4 Aug 2016 Last revised: 18 May 2020
Date Written: May 13, 2020
The marketplace of ideas features prominently in First Amendment doctrine, with the Supreme Court invalidating laws that purportedly interfere with the free flow of information through society. Yet, the modern version of the market metaphor rests entirely upon contradictory conceptual assumptions, false empirical premises, and an unsupported historical narrative. Without any coherent or realistic account of how a “marketplace of ideas” actually functions—how we reason and how ideas spread—one cannot say that a law “interferes” with it.
This Article suggests a more fruitful axis for analyzing competition in the marketplace of ideas: the role of attention. The choices we make about where to direct our attention and the terms of access to that attention serve a critical function in determining which ideas spread throughout society. If speakers are “producers” and listeners are “consumers,” then our decentralized decisions about who we trust with our attention and what deserves our attention are the missing market mechanism—the way we confer value in the marketplace of ideas.
Focusing on attentional choice offers a way to cabin and clarify the judicial role while expanding and exploring the limits of the legislative role. Just as Congress can enact laws that safeguard economic competition and disrupt private practices that undermine the influence of consumer choice, so too should Congress be able to enact laws that promote free competition between ideas and protect genuine attentional choice.
This interpretive approach has consequences for the Supreme Court’s campaign-finance jurisprudence as well, where the close nexus between “money” and “speech” becomes more nuanced. Some expenditures may promote free competition, such as the cost of producing content or the cost of distributing content to meet attentional demand. These deserve full constitutional protection. Other expenditures may not. Advertising costs, for example, reflect payments for access to 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 allow content to circumvent the competitive process and should be more amenable to regulation.
By privileging speakers and intermediaries that have earned access to our attention, the Supreme Court can ground its doctrine more firmly in reality and better serve the First Amendment’s autonomy- and democracy-enhancing purposes. In our information-rich and attention-scarce world, the greatest threats to individual and societal self-governance now come from private actors, not state censors. An attentional theory of competition gives legislators latitude to protect the marketplace of ideas for a new generation while retaining robust constitutional defenses against any risk of government overreach.
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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