Free Speech, Free Press, Free Society: The Marketplace of Ideas in an Era of Fake News

This year marks the centennial of Abrams v. United States, in which the concept of the marketplace of ideas first entered American jurisprudence in Justice Oliver Wendell Holmes’ famous dissent. He argued that the “ultimate good desired is best reached by free trade in ideas” and “that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”

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Framing Questions

  1. Are twenty-first century communication technologies so changing how we produce and consume information in the public sphere that they threaten to undermine the freedoms of speech and of the press that sustain deliberative democracy?
  2. What is the “marketplace of ideas”? What is its significance for the First Amendment? 
  3. Does the “marketplace of ideas” still offer a powerful rationale for freedom of expression or is it outmoded in a networked era of ubiquitous and rapidly disseminated information, fake news, and weaponized political speech? If the latter, what might replace it?
  4. Does protecting a free society from disinformation present such a compelling interest today that we should reformulate the role that law can, and cannot, play? What might be done and by whom? Courts? Legislatures? Law enforcement? Regulators? Others?
  5. How can we best maintain our commitments to free speech and freedom of the press while confronting our information-society challenges?

Speakers and Panelists