Twenty-five years ago, liberals vehemently opposed any regulation of online content, warning that government interference could stunt the growth of the Internet. The way in which American businesses converted the Internet into a growth engine that has reshaped culture and society should be cause for celebration on the left. Instead, its adherents see this triumph of private entrepreneurship as a prompt for greater government control and activism.
Recent events and disclosures have demonstrated the concerted efforts by the federal government to censor the content of social media. But perhaps the most concerning and dangerous liberal stance on speech involves the intensifying censorship campaign against “misinformation.” In fact, California recently passed a law prohibiting AI-generated “deep fake” political communications ahead of elections.
There exists no objective definition of “misinformation,” other than speech with which one disagrees. Therefore, a censorship crusade against “misinformation” threatens to suffocate the marketplace of ideas that has inspired nearly a century of First Amendment jurisprudence.
The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes Jr. in his dissenting opinion in the US Supreme Court case of Abrams v. United States.
The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the United States. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”
According to Holmes, speech should not be prohibited by law just because it might be problematic or even contrary to government policy. Instead, he argued the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself as a democracy.