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 Disinformation in the Marketplace of Ideas

Tim Wu*

It was just one line, nearly a throwaway; technically a subordinate

clause.' Yet that one clause from Oliver Wendell Holmes's Abrams
dissent breathed life into a metaphor, the "marketplace of ideas," whose
lasting power is undeniable. Nor is it difficult to understand why. Yes,
it may be incomplete, inaccurate, and possibly cribbed from John Stuart
Mill, but the metaphor matches something we all see. Ideas and
ideological programs are out there looking for adherents or "buyers." In
Holmes's time, progressives, socialists, and fascists courted supporters,
just as similar groups do now. Specific ideas like the flat tax or the
legalization of marijuana seek their own buyers and usually go nowhere
but may suddenly catch on, just as in the world of real products.
I leave it to others to criticize the metaphor.2 What I want to
suggest here is that it isn't taken seriously enough. Despite all the talk,
the First Amendment offers incomplete protection for the marketplace
of ideas. If we were halfway serious about the premise that the
marketplace of ideas needs protection by courts, we'd be interested in
all the ways that government or private parties can distort or block
competition. But the First Amendment has no interest in most such
distortions-especially those created by disinformation campaigns,
which have rapidly become the speech control technique of choice in the
early 21st century.
If we were speaking of competition in a real market,3 no one would
pretend that burdens on selling are the only means by which the market
may be distorted or corrupted. In reality, the figurative "marketplace of
ideas" is lodged in the actual and less lofty markets for products of

Julius Silver Professor, Columbia Law School. I wish to thank Vincent Blasi and Maya
Katalan.
1 "[T]hat the best test of truth is the power of the thought to get itself accepted in
the competition of the market" Abrams v. United States, 250 U.S. 616, 630 (1919).
2 See, e.g., Stanley Ingber, The Marketplace ofIdeas: A Legitimizing Myth, 1984 DUKE
L.J. 1 (1984); FREDERICK SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY 15-30 (1982).
s Richard Posner, in the 1970s, argued that the marketplace of ideas is indeed an
actual market See POSNER, ECONOMIC ANALYSIS of LAw 627-38 (3d ed. 1986).

169
170 SETON HALL LAW REVIEW [Vol. 51:169

communication and culture. 4 As both antitrust and trade law teach, the
means of distorting fair competition are myriad. They include not only
government bans on selling but also the actions of monopolies,
subsidization, taxation, agreements to exclude rivals, and so on. Courts
like to say things like, "it is a central tenet of the First Amendment that
the government must remain neutral in the marketplace of ideas." 5 But
the Court maintains an impoverished idea of what constitutes neutrality
and what constitutes interference.6
To be sure, the First Amendment does make it difficult for
government to selectively ban some viewpoints altogether, which is
significant. But I believe that a determined government, with nothing
standing in its way, can achieve much if not all of what it might want to
achieve using disinformation campaigns as opposed to censorship. In
the same way that reward can substitute for punishment, or
subsidization can substitute for taxation, government, using
information itself, can achieve significant control over the national
information environment.7
What to do then? The reader may be disappointed to learn that I
do not actually think courts can fully protect the marketplace of ideas
from means of control or distortion that depend on disinformation or
other techniques. Is it then such an enormous loophole, which makes
the project of protecting a marketplace of ideas seem like a bad joke?
No, but only because First Amendment scholars tend to ignore the fact
that most of the protection of the marketplace of ideas from deliberate
attack is done not by courts but by other institutions-information
intermediaries, like the press, and in some cases citizens themselves.
Let me try to make my point clearer. My thesis is that
disinformation techniques are a serious threat to the functioning of the
marketplace of ideas and democratic deliberation, and therefore, it has
fallen upon other institutions-especially the press and sometimes
others-to fight them. How? They do so mainly by adhering to ethics of
journalism: by refusing to print lies, malicious defamation,
unsubstantiated rumors, and refusing to take direction from the
government. And this role shows how much a different function of the

4 See TIM WU, THE MASTER SWITCH: THE RISE AND FALL OF INFORMATION EMPIRES 23
(2010).
s Fed. Commc'ns Comm'n v. Pacifica Found., 438 U.S. 726, 745-46 (1978).
6 From a competition perspective, the obvious holes in the First Amendment's
protection are not hard to see: they include an indifference to distortions introduced by
powerful private parties, especially speech monopolists, and the restrictions on buyers
as well as sellers. I want to focus on the alternatives to censorship, namely
disinformation campaigns.
7 See Tim Wu, Is the FirstAmendment Obsolete?, 117 MIcH. L. REV. 547 (2018).
2020] DISINFORMATION IN THE MARKETPLACE OF IDEAS 171

First Amendment really matters: namely its protection of the press and
other platforms from government when they try to protect public
deliberation from disinformation campaigns. In other words, it is
through the protection of editorial independence, or now the content
moderation policies of major platforms, that the First Amendment plays
its main role in fighting disinformation's corruption of the marketplace
of ideas.
This First Amendment protection is sometimes called the
protection of "editorial discretion,"8 but it deserves a better title. And it
seems that the protection for editorial discretion should not be some
kind of free-floating right but one that depends on the degree to which
it is used to cultivate a working marketplace of ideas, either by itself or
as part of a broader ecosystem of contending thought.
What then of platforms that seek to amplify disinformation or
refuse to police it? Here lies the true real weak spot in the American
design: it is utterly dependent on actual independence of the press, or
other major speech institutions, from government. If that becomes
eroded, if the entire press and major speech platforms are unified with
government, then together they can do what they want: run
disinformation campaigns and prevent disfavored speech from being
heard by anyone. That's what makes the tradition of editorial
independence so important, for it is really a protection against
government's power to terrorize the press.
Some would accept the basic premise that the government can use
disinformation campaigns as an alternative to censorship but get stuck
at the point of wanting anyone to do anything about it. The hesitation
comes from some version of the idea that one man's disinformation is
another man's sacred truth and that the cure is worse than the disease.
In other words, unlike censorship, which everyone thinks they know
when they see it, the feeling is that disinformation and propaganda are
inherently subjective categories and forms of speech, so there is nothing
to be done. 9
But this is a mistaken view, for disinformation is not such a vague
thing, and doing nothing is also a choice. Those who run disinformation
campaigns know what they are doing. The techniques are known. They
amount to bad-faith efforts to deliberately corrupt public deliberation
on important questions by using lies, the inculcation of fear and chaos,
dissemination of conspiracy theories, and bad-faith discrediting of
experts. It is a mistake, one fortified by academics, to suggest that

e E.g., L.A. v. Preferred Commc'ns, Inc., 476 U.S. 488, 494 (1986).
9 See, e.g., United States v. Alvarez, 567 U.S. 709 (2012); 281 Care Comm. v. Arneson,
638 F.3d 621 (8th Cir. 2011).
172 SETON HALL LAW REVIEW [Vol. 51:169

anything persuasive can be seen as propaganda, making a hamburger

advertisement a form of thought control. We are speaking of techniques
whose goal is to distort, corrupt, or even destroy deliberation and
replace it with much cruder and uglier replacements.
The techniques of disinformation can be understood as efforts to
destroy the functioning of a marketplace of ideas. One way is by
preventing it from reaching any kind of resolution between contesting
ideas. I do not think what Holmes had in mind was never-ending
combat; he envisioned a process that did its best to reach majoritarian
answers, even if imperfect to the problems of the day.1 0 But
disinformation techniques prevent the market process from reaching
any kind of conclusion by denying facts and maintaining division. At an
extreme, the marketplace of ideas becomes a barren slugfest that exists
for the spectacle itself and its identity-reinforcing capabilities, similar to
how Orwell believed that a State might want continuous war for reasons
unrelated to military victory. 1l It can be taken as a sign of a healthy
deliberative process if, at some point, the losing side accepts the loss and
the adherents' views become outliers. In contrast, a country that cannot
overcome divisions over long periods ceases to function as a single
deliberative unit.
What does this perspective offer for our times? As the cliche goes,
Abrams retains its relevance but in a way much different than usually
understood. Its genius lies in recognizing a competitive, deliberative
process at the core of democratic government and majoritarian
decision-making. But to the extent that it was taken to suggest that
banning censorship offers sufficient protection for that process, it was
mistaken, even in its time. Instead, as a practical matter and for most of
history, it falls to intermediaries, the press and other institutions, to do
the day-by-day work of protecting and promoting a marketplace of
ideas.
This lesson is of particular importance when we consider the major
speech platforms of our time, Facebook, Twitter, YouTube, and others,
all of which once thought that editorial discretion might just be an
artifact of another time.12 In fits and starts, at least some of them seem
to have learned that with the promotion of speech comes responsibility,
one that, unexercised, threatens the republic in which they were born.

lo "Every year if not every day we have to wager our salvation upon some prophecy
based upon imperfect knowledge." Abrams v. United States, 250 U.S. 616, 630 (1919).
it GEORGE ORWELL, 1984, at 241 (1949).
12 See Tim Wu, Will Artificial Intelligence Eat the Law? The Rise of Hybrid Social-
OrderingSystems, 119 COLUM. L. REV. 2001, 2008-10 (2019).
2020] DISINFORMATION IN THE MARKETPLACE OF IDEAS 173

The protection of a healthy marketplace for ideas turns out to be harder

than it looks.
o~