Regulating the Marketplaces of Political and Economic Ideas

Christopher S. Ford, Duke University School of Law

Abstract

Ever since Justice Holmes’ famous dissent in Abrams v. United States, First Amendment jurisprudence has labored under the metaphor of a ‘marketplace of ideas.’ The government must abstain from regulating this market, courts and commentators have argued, to best ensure healthy and free competition among ideas. The Supreme Court has frequently relied on this metaphor when evaluating claims under the First Amendment, and did so prominently when deciding the recent case of Citizens United v. F.E.C.

Yet the sweeping majority opinion by Justice Kennedy and strident dissent by Justice Stevens advance two fundamentally different ideas of how the marketplace of ideas is constituted. Kennedy sees the marketplace as protecting the voters from the influence of government, thereby enabling democracy to function best. Stevens, by contrast, sees the government as a necessary regulator of the marketplace, guarding against corruption and undue outside influence. The Justices do not make these fundamental premises clear, however, and as such their opinions cannot meaningfully engage with the opposing argument.

By undertaking a thorough analysis of both campaign finance precedent and the two principle opinions in Citizens United, this Article seeks to uncover the arguments underlying these contrasting understandings of the marketplace of ideas. In so doing, however, it reveals how both Justices are peculiarly focused on one particular marketplace: that of specifically political ideas. As such, the holding of Citizens United must be seen as applying narrowly to one particular marketplace of ideas and not to the freedom of speech more generally. In opposition to recent commentary, this Article argues that Citizens United will not impact the Court’s commercial speech doctrine, most prominently outlined in Central Hudson, because that doctrine affects only speech that occurs in the marketplace for economic ideas. Though Citizens United portends an expanded role for corporate speech in political campaigns, it should not be read to require strict scrutiny for any government regulation of corporate speech.