There’s a lot of talk of free speech in contemporary American discourse in general and at Harvard Law School in particular. Despite all this talk, very little is said by way of explaining what it would mean for speech to be free. There is a deep-seated—sometimes healthy, sometimes not—distrust of speech regulation, both institutional and social in this country (much of which is notably absent in peer countries, like Canada). This distrust is rooted, quite clearly, in the tradition of political liberalism. Even today people appeal to the Millian notion of a marketplace of ideas. In this market, the answer for speech that is bad, for example, clearly false or offensive, is not regulation, but rather competition against other ideas on the open market. In this competition, the good ideas, given enough time and advocacy, win out by appealing to our reason and better judgment.
But that is where the discussion of the market for speech typically begins and ends. Here I want to explore the market analogy more fully, asking what follows from a more developed look at the market for speech. As it turns out, the analogy does provide some useful insights, but perhaps not the insights those who invoke it have in mind. First, I map some ways in which both economic markets and speech markets are already heavily regulated by institutions. Second, I explore some of the ways actors within these markets intervene to shape them. Finally, I argue that systemic inequalities in both markets allow seemingly neutral laissez-faire rules unacceptable if the ultimate goal is fair competition.
We do not have a free—meaning unregulated—market for speech, just as we do not have a free market for goods and services, nor should we. We do not allow certain kinds of violent transactions in either market, for example. I cannot legally contract with you to kill another person, nor can I legally announce (threaten) that I will kill you. We also have restrictions on how and where a business can operate, just as we have so-called “time, place, manner” restrictions on speech. Though I could obtain permits and run a coffee shop down the street, I cannot legally run one out of my house. Similarly, though I can play music in my house or give speeches on the sidewalk outside, I cannot legally do so in the middle of the night when it will disturb my neighbors. We do not allow discrimination in public accommodations or even through some purely private transactions like racially restrictive covenants. Similarly, we do not allow certain types of speech that rise to the level of harassment under civil rights laws like Title VII and Title IX.
In addition to restrictions, institutions subsidize some higher cost activities. Economic actors regularly receive subsidies from the government, whether to grow corn, develop new technology, or keep their bank afloat. Speech actors, too, receive subsidies, as I learned in Professor Tushnet’s First Amendment course. When a rally is held, extra trash clean-up by the municipality may be required, or if the speaker is inflammatory or the cause unpopular, extra police presence may be deployed to monitor the situation. In both cases, the speaker receives a subsidy—paid out of tax dollars—for their speech.
While regulations may make these markets less free in that they constrain individual actors, they make people who act in the market’s context more free on the whole, assuming arguendo that these regulations are good ones. This is part of the lesson of Professor Singer’s recent book on regulation in the subprime mortgage context, No Freedom Without Regulation. Singer argues, among other things, that property rights, a cherished idol of the free market crowd, require governmental regulation for their existence and functioning. One who defends the market view of free speech must also recognize that regulation of speech is required for the market to function well. We can disagree about the best regulations, but not about whether they should exist.
Self-Help and Organizational Interventions
In addition to institutional regulations of the economic and speech markets, we also tend to think that certain forms of self-help are legitimate interventions by market actors. Boycotts on products, divestment campaigns, and debt strikes are all ways to insert oneself into the workings of a market in an effort to shape it as one sees fit. At the same time, speakers engage in self-help to shape the market for speech by, e.g., refusing to speak at a conference with a known harasser or on a panel with no women. Another form of self-help comes through what we might call annulment. If I dislike how you act in an economic market, I can find ways of rendering your action moot. If you put a song I hate on the jukebox, I can pay a premium to delay the song by making music I like skip yours in the queue (at least on fancy electronic ones). This is an economic action that effectively annuls yours, at least for a period. I could similarly annul your action by overwhelming its effect. If we are competitors, and you invest in one widget to improve your business, but I have more money than you, I can invest in 20 widgets to improve my business by so much that your improvement is worthless. Speech actors, too, may engage in self-help through annulment. Consider the “people’s filibuster” that protestors packing the Texas statehouse engaged in at the end of Wendy Davis’ filibuster to prevent a vote on a restrictive anti-choice bill in 2013. It was obstructive in the most beautiful way.
As in the case of the people’s filibuster, self-help is often effected through organization. In the economic market, this organization may take the form of labor unions, consumer groups, or corporations, to name a few. In the speech market, organization is prototypically done by protest and activism, but organized speech may come from many other groups with some expressive ends, like physicists, political parties, or religious groups. Organization is valuable in a number of ways, perhaps most obviously because it amplifies the effect of whatever is being done. In an economic market, a strike by an entire factory is effective where a strike—if we can call it one—by an individual employee is impotent (unless, of course, that particular employee is very powerful for some reason, like if she knows all the computer passwords). Similarly, a protest with hundreds of attendees demands attention that a protest by a single person—a sort of protest I engaged in exactly once, but do not recommend!—does not.
Inequality in the Market(s)
So far I have discussed some largely uncontroversial similarities between prevailing views on the workings of markets for both goods and services as well as speech. Now I want to move on to a deeper similarity that has to do with the effects structural inequality can have on the function of a market.
Inequalities in the economic market constrain the choices of some actors, while enabling and enlarging the choices of others. This happens in almost too many ways to mention, but let’s keep the examples simple. If different actors in a single market have different resources, that will affect the range of choices they have in both the near and far term. A person with enough money is able to do things like buy in bulk, shop at larger stores with lower prices, place money into interest-bearing accounts, and countless other things that make each dollar they spend go further than the dollar of a person who may lack the money, time, and car it takes to get to a cheaper store, and who may be paying usurious rates for check cashing and other credit services. This is a problem for many reasons, but just from the perspective of the market functioning properly, it is a problem because it serves to encourage the concentration of wealth in a few people who already have the most while denying basic access to economic goods to those with the least.
In the market for speech there are also inequalities that make the market hostile to historically oppressed groups. Philosopher Miranda Fricker writes about one such problem, which mirrors the example above: maldistribution in credibility. When we evaluate claims made by others we attribute some level of credibility to them. For example, a claim about what a statute means coming from a law professor may carry more weight than the exact same claim coming from your cousin, the insurance salesperson. This kind of credibility assessment is totally banal. We do it all the time, pretty automatically. Unfortunately, these credibility assessments are more sinister when they track social categories, which they do—a lot, as it turns out. Controlling for everything else (and with some provisos), a claim made by a woman will tend to carry less weight than the same claim made by a man. So too for Black or Latino speakers as against white speakers, disabled speakers as against able-bodied speakers, rich speakers as against poor speakers, and so on.
In this way, each unit of speech (if the reader will permit such a reduction), like each dollar above, goes further for a white speaker or a male speaker. And these values interact at the intersections. Just as with the economic market, we should be troubled by the implications of this maldistribution in credibility: credibility will tend to concentrate in those who have it by virtue of their social identity. This means that people in the market will be less able to evaluate the claims and arguments made by others on their merits, which undermines the supposed function of the free market in ideas. Those ideas advanced by speakers whose identities are afforded the most credibility will be the ones that ring true more often. This effect makes it particularly hard for a heterodox view from a marginalized speaker to get to uptake.
A second kind of inequality has to do with what kinds of resources develop thanks to market demands and incentives. This inequality, too, makes it difficult for heterodox views to get uptake. Fricker calls this kind of inequality hermeneutical injustice. A hermeneutical injustice occurs when there just isn’t a concept—or an existing concept is not well-developed or adequate—to express an experience. One of her examples, well known to followers of Catharine MacKinnon’s work, is the concept of sexual harassment. There was a time, not so long ago, when the concept and words for sexual harassment did not exist—instead the conduct that now goes by the name was boys being boys or just a joke or a friendly back rub or an opportunity for advancement. It was not until women got together in consciousness raising groups and started talking about their experiences in their workplaces that the experience got a name. From there, armed with a name and the knowledge that it was not just them, women began to articulate their experiences to others.
Of course, people still routinely disbelieve people’s claims of harassment and assault on the job and elsewhere, but advancements have been made, in the law and in the social imagination. Still, trying to get uptake for the idea that your story of harassment should be believed or that there is this thing called sexual harassment that many people experience is difficult under conditions of inequality. Put another way, there is a tax on the development of these missing or suppressed concepts—a tax paid by members of marginalized groups who have to spend their time organizing, developing resources that should already be available to them, wondering if they were wrong all along, and arguing with overly skeptical interlocutors (who, remember, are also valuing their word at less than perfect market value). The laissez-faire market for speech, then, disincentivizes the uncovering of certain kinds of truths.
While many books and articles have been written about the ways that social inequality and injustice affect knowledge production and exchange, I hope I have given the reader enough to see the beginnings of the problem. The market justification for unrestricted speech depends on the idea that speakers come to the marketplace on relatively equal footing, that interlocutors will be swayed by the force of reasons, and that the slate of views will be accessible to all. Sadly, our market for speech, like our economic market, is manifestly unjust. Under such conditions of injustice, neutral rules will favor those with more power and resources. Flat taxes, for example, tend to be regressive. Neutral speech rules, too, can be regressive, hitting those with the least the hardest. Requiring a marginalized group to leave untouched the message of an interloper who, in fact, holds the status quo view can hamper the sort of intellectually productive idea development that helps the overall market function. Imagine that every time the consciousness raising groups of the 1970s were discussing their inchoate experiences with harassment, a hostile man barged into their meeting and told them that they were all wrong, to lighten up, or that it was really them who were sexist. That would have been understandably upsetting, even terrorizing, and it would have delayed the development of the concept considerably. Privileging an ostensibly equal speech situation in that isolated moment would have the effect of undermining the function of the market in the long term.
Free exchange of ideas, discussion, dispute, and debate are vital to the functioning of any society. We have an imperative as citizens, and perhaps especially as members of an academic community, to guard these values. But we betray these values if we resort to easy slogans like “the cure for bad speech is more speech.” It’s not that easy. We are dealing with nothing less than the weight of long-standing structural injustices on our backs when we engage in the exchange of ideas. Only an understanding of, and sensitivity to, this reality will allow us approach the market for speech in a responsible way that avoids entrenching existing inequalities, incentivizes innovation, and allows the best ideas to rise to the top. This might require taxes, subsidies, boycotts, strikes, and other quasi-economic tools, but our market for speech will be better for the effort and care we take in regulating it.
Annaleigh Curtis is a 3L at HLS.