There’s probably no aspect of individual freedom that’s more celebrated than freedom of speech. The right to express our opinions and advocate for our beliefs is a basic part of how we live in a constitutional democracy. But there’s also a lot of misunderstanding about how free speech really works. And a lot of that misunderstanding centers around a slogan that you often hear people use: the phrase “marketplace of ideas.”
“The marketplace of ideas,” sounds like a good thing. It comes from a Supreme Court case that’s more than a century old, in which Justice Oliver Wendell Holmes said the government should not punish people for expressing their views about American involvement in overseas wars.
Now, we’d probably all agree that the government shouldn’t censor that sort of thing. But the phrase “marketplace of ideas” actually conceals a really dangerous misunderstanding about how free speech works.
You see, in the United States we pretty much take it for granted that you can criticize the government—or powerful politicians and public figures—and we sometimes forget how rare that freedom really is. Most people in the world have nowhere near that kind of freedom. In China, for example, the government restricts speech so much that it even bans pictures of Winnie the Pooh, because the country’s dictator looks like him, and critics like to point that out.
Imagine banning Winnie the Pooh.
The American system of free speech has a really dramatic history. It goes back to the seventeenth century in England, and an argument over laws called “licensing” or “prior restraints.” Parliament made it illegal to publish a book without getting government’s permission first.
In 1644, the poet John Milton, best remembered for Paradise Lost, published a book arguing that Parliament should legalize divorce. He didn’t get a license before publishing the book—and that didn’t go over well. Parliament started investigating him. So he responded by publishing another book, called Areopagitica, which said the whole licensing scheme should be abolished. That book is still the most beautiful argument for free expression ever written:
“[If] Truth [is] in the field,” wrote Milton, “we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let [Truth] and Falsehood grapple. Who ever knew Truth put to the worse, in a free and open encounter?”
Milton thought the government did not need to censor falsehoods. If something isn’t true, people will point that out, and the lie will be defeated, as long as people are free to openly argue. On the other hand, Milton said, if the government does start deciding what people can and cannot publish, it will eventually prioritize its own power over the actual truth. Bureaucrats are no good at censorship, because they often know less about the subjects than the writers do—and because bureaucrats consider it more important to protect their own power than to discover what’s actually true or false.
It took decades before the laws were changed and Britain got rid of licensing. But by the time of the American Revolution, it was clear that you couldn’t be prevented from publishing something.
You could still be punished afterward, however. So there were still plenty of limits on free speech. By our standards, British law remained very oppressive. But the elimination of “prior restraints” meant Britain had the strongest free speech protections in the world at the time.
Americans took freedom of speech even more seriously. In the 1730s, a New York newspaperman named John Peter Zenger was put on trial for criticizing the government of the colony—and the jury refused to convict him. That case showed that the colonists were taking the idea of free speech and running with it. They wanted writers and speakers to be able to criticize politicians without fear of prosecution.
Of course, Americans have experienced our share of censorship over the years. There was the Sedition Act during John Adams’s presidency, for example, which made it a crime to criticize the president. Andrew Jackson effectively banned abolitionists from sending antislavery newspapers through the mail. And during both World Wars, it was a crime to speak out against the military draft. The government even created official censorship agencies. Nevertheless, compared to the rest of the world, Americans have usually enjoyed the broadest possible freedom of speech.
But why? It seems strange to say, but there’s a fundamental disagreement today about why we protect freedom of speech: do we protect it for the sake of society? Or for the sake of the individual?
James Madison, who wrote the First Amendment, gave one explanation. He said our opinions are like our property. The phrase “private property,” he wrote, means the “dominion” that each of us “claims and exercises over the external things of the world, in exclusion of every other individual.” And that applies not just to or physical possessions, but also to our ideas. Each person “has a property in his opinions and the free communication of them.”
In other words, I own my thoughts and I can do with them what I want. The government has no right to take that away any more than it has a right to take away my watch or my house.
But around 1900, judges and politicians began to reject Madison’s ideas. In fact, they rejected the entire natural rights theory that underlay the American Constitution. Madison and his friends thought we have rights just because we are human beings—so called natural rights—and that government must respect these rights if it’s going to be legitimate.
But in the twentieth century, political philosophers began saying that our rights are really just permissions the government gives to us—not for our sake, but for its own purposes. Freedom of speech isn’t something we have a basic moral right to. Instead, it’s something government gives us in order to enable democracy to work.
And that’s where the phrase “marketplace of ideas” phrase comes from. In 1919, Justice Oliver Wendell Holmes wrote an opinion where he said “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” And therefore, a democracy gives people freedom of speech so that they can debate and argue things out, and see which ideas prevail.
Now, that seems right. After all, the reason we debate things is so that we can hear the arguments on either side, and it’s certainly important for everyone to have their say so we can decide what to do. In fact, Milton said something similar in Areopagitica. “To be still searching what we know not, by what we know, still closing up truth to truth as we find it,” he said, “this is the golden rule…and makes up the best harmony…not the forced…union of…inwardly divided minds.”
But that cannot be the whole story, because there are all sorts of speech that we do not think of as being in the public “marketplace.” Writing in a diary, for example. Or writing a poem to express yourself. Or a private conversation with your doctor. Or not speaking at all. Those things don’t really fit into this model of a “marketplace.”
In fact, the “marketplace” idea can actually be used to violate free speech. In 1940, the Supreme Court heard a case challenging the constitutionality of laws that forced schoolchildren to pledge allegiance to the flag. A family of Jehovah’s Witnesses said this violated their religious beliefs, and they were expelled for refusing to pledge allegiance.
The Court ruled in favor of the government. One reason it did so was because of the “marketplace of ideas” theory. The justices said that the children’s refusing to pledge allegiance did not count as participating in democracy. It wasn’t playing any real role in the “marketplace of ideas.” In fact, to compel kids to pledge allegiance would encourage democratic conversation, and that was a good thing.
In other words, we should force people into this “marketplace of ideas.”
Three years later, the Court overruled that decision, in another lawsuit involving the pledge of allegiance. This time it said that people have a right not to participate in the marketplace of ideas if they don’t want to. The “purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials,” wrote Justice Robert Jackson. “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly…may not be submitted to vote; they depend on the outcome of no elections.”
That’s true—but that’s the opposite of the “marketplace” theory. That’s the old Madisonian theory that we protect free speech for individual purposes, not for the sake of society.
Still today, there’s this tension between the two ways of envisioning free speech: whether it’s a person’s individual right to his or her own ideas, as Madison said, or whether it’s a privilege the government gives us in order to serve democracy, as Holmes said.
You see that tension today when people talk about so called “censorship” by social media companies like Twitter or Facebook. These companies are being accused of violating free speech because they refuse to allow certain types of comments on their websites, or ban certain political leaders from using their apps. But is that really a violation of free speech? Or is it just an example of free speech?
If speech is something the government gives to us or takes away from us, in order to serve democracy, then a company like Twitter should be forced to let us use its platform, right? After all, that would increase discussion and “serve democracy.” But if speech is something like property, so that we own our free expression, then Twitter should be allowed to block anyone it wants to from using the app—because it owns that app. If you don’t like it, you can start your own company. In fact, some people have already done that, with companies like Truth Social.
The philosopher Ayn Rand put the point succinctly: “Freedom of speech means freedom from interference, suppression or punitive action by the government—and nothing else. It does not mean the right to demand…the material means to express your views at the expense of other [people] who may not wish to support you.”
After all, the people who own Twitter have free speech rights, too, which means they have the right to express their opinions about what kinds of speech they’re willing to broadcast and what kinds they aren’t. We can certainly disagree with them—and even criticize them for “cancelling” people—but in the end, they get to decide what speech they’re willing to broadcast.
The problem gets messier when you’re talking about speech by the government, or subsidized by the government—like at public universities. When a government-run university blocks somebody from giving a speech on campus because of his political opinions, or forces students to say they agree with something they don’t—then the state is using force to limit what people can say, or forcing them to say things they don’t believe. And that does violate freedom of speech.
It’s true, of course, that free speech is important in a democracy, because silencing one side of an argument will lead to a distorted idea of what public opinion really is. But we don’t have freedom of speech because of this. Instead, we have freedom of speech because we are fundamentally free as individuals, and that means that even speech that serves no democratic goal is still deserving of protection.
In this second installment of the Foundations of Freedom video series, Goldwater Vice President for Legal Affairs Timothy Sandefur takes a deep dive into this crucial individual right by discussing the “marketplace of ideas” and today’s free speech debate, all while exploring what historical figures like John Milton, Ayn Rand, James Madison, and more had to say about free speech.
Each episode of the new Foundations of Freedom series features Sandefur discussing our individual liberties, their philosophical underpinnings, and what they mean to us today:
Watch the second video here, and watch the full Foundations of Freedom series here.
