Market Failure in the Marketplace of Ideas

Tamara R. Piety, University of Tulsa College of Law

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Forthcoming in the Loyola L.A. Law Review

Abstract

Proponents of expansive First Amendment protection for commercial speech often invoke "the marketplace of ideas" metaphor. The use of this metaphor simultaneously invokes generalized notions about the commitment to free markets and free expression. It implies these values are intertwined and that more protection for commercial speech means both more freedom and more truth. I argue that expanding First Amendment protection for commercial speech will not result in the either more truth or more freedom but rather to less of each and explore the ways in which, even with only limited protection for truthful commercial speech, the market has actually failed to yield truthful information. I locate the reasons for this failure in market forces themselves. These forces do not, in fact, I argue, always offer corporate speakers incentives to disseminate truth. Rather, they encourage corporate speakers to either offer or suppress speech as it relates to the corporation's economic welfare. And where these speakers are very powerful, pursuit of economic benefit produces predictable distortions in the production of expression that could be called metaphorical "market failures." In this article I suggest that extending more protection to commercial speech would be unlikely to produce either more truth or more freedom.