Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.
—Justice Holmes, dissenting in Abrams v. United States (1919)
The “marketplace of ideas” is an old notion, older than Holmes’s famous articulation of the “theory of our Constitution,” older indeed than the Constitution itself. In the early decades of this century, however, Holmes, Brandeis, and others gave the principle of “free trade in ideas” an exceptionally powerful rhetorical expression, thereby laying the foundation for the elaborate edifice of modern First Amendment doctrine.
On the whole, this has been a worthy enterprise; the range of legally permissible speech in America is broader than in most other democracies. But the enterprise has had one major flaw: it has never come to grips with the reality of economic inequality and its central place in American capitalism. In the name of free speech, the Supreme Court has permitted unlimited “independent” expenditures in political campaigns, which have largely benefited conservative candidates. As Thomas Edsall points out in The New Politics of Inequality, the disproportionate impact of such spending stems in large part from the “increasing intersection” since the mid 1970s “of the interests of the right-wing ideological community, the business community, and the Republican party.” …