The Marketplace of Ideas Online

This Article surveys the severe problems in today’s online marketplace of ideas and the efforts that regulators—and the online platforms themselves—have recently adopted in an attempt to address such problems. In Part I, this Article examines the historical foundations of the “marketplace of ideas” model, as articulated in Holmes’s early opinions, as well as the Court’s eventual adoption of the marketplace model and, with it, the adoption of counterspeech, instead of censorship, as the default response to harmful speech. Part II then examines the scope and extent of the problems besieging the modern online marketplace of ideas, focusing on problems that have arisen especially in the context of the 2016 U.S. presidential election and thereafter on social media platforms like Facebook and Twitter. In Section III.A, this Article examines the sweeping regulatory efforts recently adopted by the European Union and by Germany in particular, and the ways in which the online platforms are striving to implement such regulations. In Sections III.B and III.C, the Article turns to an analysis of the self-regulatory efforts undertaken by leading social media platforms Facebook and Twitter, the likely efficacy of such measures in addressing the problems besieging the online marketplace of ideas, and the extent to which such measures are consistent with First Amendment values. In Section III.D, the Article examines the constitutionality and the likely efficacy of the recently proposed Honest Ads Act. In Section III.E, the Article examines the extent to which the defamation lawsuits brought by victims of false news, conspiracy theories, and online hoaxes are consistent with the First Amendment. A brief conclusion follows