From Volume 86, Number 1 (November 2012)
In an opinion that many would argue gave birth to modern free speech law, Justice Oliver Wendell Holmes, Jr. described the purpose of the First Amendment as protecting the “free trade in ideas [because] the best test of truth is the power of the thought to get itself accepted in the competition of the market.” Thus was born the “marketplace of ideas” metaphor that has heavily influenced the subsequent development of free speech jurisprudence. In another seminal opinion, Justice Louis Brandeis emphasized that “a state is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence” because such prohibitions interfere with the “public discussion,” which is at the heart of deliberative democracy. More recently, the Supreme Court has articulated the view that “[u]nder the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” These three statements constitute some of the most famous declarations of First Amendment liberty in the history of the Supreme Court. What is noteworthy about these opinions, however, is that they all focus on the freedom to articulate ideas, including opinions and doctrine. What they do not address is the treatment of facts in free speech law. It is true that the most recent case quoted above, Gertz v. Robert Welch, Inc., goes on after denying the existence of false ideas to state that “there is no constitutional value in false statements of fact,” but this is a reference only to false facts. What about true facts? What is their role in the pantheon of free speech? Are they equivalent to opinions, or do facts warrant distinct First Amendment analysis? How does factual speech relate to the underlying purposes of the First Amendment? And have the answers to these questions shifted in light of the rise of the Internet as the dominant modern avenue for the dissemination of speech? These are the questions that this Article explores.