When the Marketplace of Ideas Does Not Work : A Review on a Rationale for Freedom of Expression and Alternative Theories

The marketplace of ideas is the oldest theory of freedom of expression, which holds that just as goods in a market find a balance of supply and demand through free exchange, so too can the truth be reached through the free exchange of ideas. For the marketplace of ideas to function properly, the following preconditions must be met: 1) the premise of a competitive market where multiple ideas compete freely; 2) the premise of sufficient time for truth to reveal itself; 3) the premise of ignorance, acknowledging that truth has not yet been discovered; 4) the inherent premise that the content of the expression must be an idea; 5) the consequence premise that society can bear the harm caused by the idea; and 6) the rationality premise that participants are not influenced by public opinion and personal bias. In reality, the marketplace of ideas does not function as intended. The marketplace of ideas has been 1) oligopolized by a few voices due to economic power and vested interests; 2) unable to address the urgent harm caused by expression supporting or promoting terrorism; 3) witnessing a significant increase in the distribution of fake news or disinformation. Furthermore, expressions without ideas, such as obscenity, or those that cause great harm, such as hate speech, are not self-regulated in the marketplace of ideas. Also, 5) not all participants in the marketplace of ideas are pursuing truth, and they do not act rationally due to personal or collective biases. The marketplace of ideas lacks completeness as a theory of freedom of expression. It cannot be used as a standard to define the scope of protection for freedom of expression, nor can it be used to determine the unconstitutionality of government regulations based on whether the marketplace of ideas is functioning. If government regulation is possible in the marketplace for goods, the logic that government regulation is not possible in the marketplace for ideas is not compelling. The greater the harm caused by expression, the stronger the justification for regulation. Restrictions on freedom of expression, like other fundamental rights, are possible. The justification for restrictions on freedom of expression should also be examined according to the principle of proportionality, as with other fundamental rights. The marketplace of ideas serves only as a warning against the government arbitrarily regulating expression based on its content. The marketplace of ideas is not a theory, but a metaphor.