FACEBOOK AND THE FRAGMENTED FREE MARKETPLACE OF IDEAS

By: Jonathan Baker, Volume 104 Staff Member

When the Framers adopted formal protections to free speech with the ratification of the Bill of Rights in 1791, information exchange and dissemination primarily occurred through “individuals talking one to another, . . . addressing town meetings[,]” or the publication of “handbills, newspapers and periodicals of a few pages, printed a few hundred at a time.”[1] When the Supreme Court of the United States first began meaningfully interpreting the First Amendment at the turn of the twentieth century,[2] citizens largely exchanged and disseminated information through those same channels.[3] Today, however, information flows not only through print media and by way of conversation, but also through television, radio, and—perhaps most importantly—cyberspace.[4] Writing in 1995, legal scholar Cass Sunstein[5] predicted that “technological change promises to test the system of free expression in dramatic ways.”[6] Mr. Sunstein was correct; just decades after he made his prediction, the advent of Facebook now poses a challenge to one of the fundamental justifications for free speech protections in the United States.

The First Amendment of the United States Constitution prescribes in part that “Congress shall make no law . . . abridging the freedom of speech, or of the press.”[7] This prescription is deceptively plain. Indeed, although the First Amendment clearly prohibits Congress from “abridging the freedom of speech,” courts have struggled to determine what constitutes “speech”[8] and to which types of “speech” the First Amendment affords protection.[9] Jurists and scholars have similarly struggled to embrace a singular theory of First Amendment protection.[10] One leading theory among the many competitors, however, is the theory of the marketplace of ideas.[11]

The theory of the marketplace of ideas, as Justice Holmes famously advanced in his dissent in Abrams v. United States,[12] implicitly suggests that the purpose of the First Amendment is to facilitate the emergence of truth.[13] Assuming “truth-seeking” to be the overriding purpose of the First Amendment, the theory posits that government need not regulate speech because “the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[14] Proponents of the marketplace theory therefore envision an open market to which every member of the citizenry has access and in which ideas are exchanged freely among them.[15] Citizens, like consumers who eschew the marketplace’s shoddy products for its quality counterparts, will inevitably eschew false (or otherwise valueless) ideas and instead embrace their truthful (or otherwise valuable) counterparts when both are a part of public discourse.[16]

The marketplace theory thus relies in part upon a structural assumption—namely, that the marketplace of ideas is akin to an open, freely accessible market. The advent of Facebook, however, is challenging that structural assumption. Facebook utilizes an algorithm that controls the ordering and presentation of posts on each user’s homepage.[17] That algorithm, rather than merely presenting users with content upon its publication, presents users with content “based on what Facebook sees as relevant to . . . [each] user.”[18] Because users have a preference for like-mindedness, Facebook algorithms present the platform’s users with content that reflects a narrow range of viewpoints that those users likely already hold—effectively creating an “echo chamber” of opinions and information.[19]

Facebook algorithms have structurally reshaped the theoretical marketplace of ideas. Whereas Justice Holmes likely conceived of an open-plan, open-access marketplace in which all ideas are freely and transparently peddled among vendors and customers (think New Orleans’ French Market[20] or Istanbul’s Grand Bazaar[21]), the marketplace of ideas in the age of Facebook more closely resembles a shopping mall comprised of several distinct wings, each of which offers a distinct set of ideas. Upon entering the mall (i.e., becoming a Facebook user), an usher gauges customers’ interests (i.e., Facebook determines users’ relevant interests) and subsequently directs each one to the wing in which the ideas most closely aligned with that customer’s interests are offered for sale (i.e., Facebook only shows users content that it deems relevant to their respective interests). Customers therefore are not freely engaged with the universe of ideas available in the macrocosmic marketplace; rather, they are engaged only with a limited set of ideas made available in their subsidiary microcosmic marketplaces.

If the purpose of the First Amendment truly is to create a free and open marketplace of ideas, Facebook’s content algorithms undermine that purpose. The social media platform effectively segments the marketplace of ideas and thereby makes more difficult the free and open exchange of information. Although Facebook perhaps facilitates the dissemination of information generally, any benefit from that increased dissemination is lost because the exchange occurs among a predetermined—i.e., restricted—subset of the general population rather than the general population as a whole. Justice Holmes did not envision many distinct marketplaces of ideas when he first proposed the theory; he envisioned a single, unified, unrestricted marketplace.

Congress certainly possesses the power to restructure and unify the now-fractured marketplace of ideas. The obvious congressional solution to this free speech problem is to require Facebook to retool its algorithms so that its users are, at the very least, more likely to engage with content that does not perfectly align with their respective viewpoints. Facebook is already under significant congressional scrutiny,[22] so this solution is not entirely far-fetched.

But Congress need not be the sole savior of our marketplace; “[w]e the people”[23] also possess the power to dismantle the walls currently segmenting it. Indeed, “[t]he primary issue is that we deliberately choose actions that push us down an echo chamber.”[24] Hosanager correctly points out that “we only connect with like-minded people and ‘unfriend’ anyone whose viewpoints we don’t agree with, creating insular worlds” and “even when the newsfeed algorithm shows cross-cutting content, we do not click on it.”[25] These popular tendencies, which are detrimental to the structure of our marketplace of ideas, can only cease with concerted popular action.

In any event, the livelihood of the free marketplace of ideas depends on its united structure. Facebook algorithms undermine that structure and, consequently, hinder rather than advance the goals of the First Amendment. Regardless of its source, a timely solution to the fragmentation of the marketplace of ideas is necessary to ensure truth continues to prevail over falsehood.

[1] Walter S. Baer, Technology’s Challenges to the First Amendment, 17 Telecomm. Pol’y 3, 3 (1993).

[2] See, e.g., Stanley Ingber, Rediscovering the Communal Worth of Individual Rights: The First Amendment in Institutional Contexts, 69 Tex. L. Rev. 1, 3 (1990) (“Despite the impending 200th anniversary of the Bill of Rights’ ratification, significant judicial interpretation of the First Amendment’s freedoms of speech and press dates back only to 1919.”).

[3] See Marc A. Franklin et al., Media Law: Cases and Materials 21–22 (Robert C. Clark et al. eds., 9th ed. 2016). Note that radio and television did not become popular media until the 1930s and 1940s, respectively. Id. at 22.

[4] See, e.g., Baer, supra note 1, at 3–4 (detailing information technology trends that have First Amendment implications); Cass R. Sunstein, The First Amendment in Cyberspace, 104 Yale. L.J. 1757, 1758–59 (1995).

[5] Cass R. Sunstein, Harv. L. Sch: Faculty Profiles, https://hls.harvard.edu/faculty/directory/10871/Sunstein [https://perma.cc/Q8XR-GNWH] (last visited March 9, 2020).

[6] Sunstein, supra note 4, at 1759.

[7] U.S. Const. amend. I.

[8] What Does Free Speech Mean?, U.S. Courts, https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does [https://perma.cc/X33Y-YX29] (last visited Mar. 3, 2020).

[9] Not all types of speech are protected. See, e.g., Alon Harel, Bigotry, Pornography, and the First Amendment: A Theory of Unprotected Speech, 65 S. Cal. L. Rev. 1887, 1889 (1992) (acknowledging a “comprehensive category of unprotected speech”).

[10] See Robert Post, Reconciling Theory and Doctrine in First Amendment Jurisprudence, 88 Cal. L. Rev. 2353, 2355 (2000) (“In its current state, free-speech jurisprudence is hampered by coexisting but conflicting First Amendment theories and doctrines.”).

[11] Id.

[12] 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).

[13] See Post, supra note 10, at 2363 (“The theory of the marketplace of ideas focuses on ‘the truth-seeking function’ of the First Amendment” (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 52 (1982)).

[14] Abrams, 250 U.S. at 630 (Holmes, J., dissenting).

[15] See, e.g., Jill Gordon, John Stuart Mill and the “Marketplace of Ideas”, 23 Soc. Theory & Prac. 235, 236 (“[E]veryone comes to the market with his or her ideas, and through discussion everyone exchanges ideas with one another.”).

[16] See, e.g., R. H. Coase, The Market for Goods and the Market for Ideas, 64 Am. Econ. Rev. 384, 389 (“I do not believe that [a] distinction between the market for goods and the market for ideas is valid. There is no fundamental difference between these two markets . . . .”); Chris Seabury, The Cost of Free Markets, Investopedia: Economics (last updated Feb. 8, 2020), https://www.investopedia.com/articles/economics/08/free-market-regulation.asp [https://perma.cc/6HGY-RAEK] (“Consumers’ voices are heard [in a free market economy] in that their decisions determine what products or services are in demand.”).

[17] Brent Barnhart, How the Facebook Algorithm Works and Ways to Outsmart It, Sprout Social: Sprout Blog (May 31, 2019), https://sproutsocial.com/insights/facebook-algorithm/ [https://perma.cc/9DAL-S2NX].

[18] Id.

[19] Kartik Hosanagar, Blame the Echo Chamber on Facebook. But Blame Yourself, Too, Wired (Nov. 25, 2016, 7:00 AM), https://www.wired.com/2016/11/facebook-echo-chamber/ [https://perma.cc/FP8S-YXHB].

[20] French Market, Wikipedia, https://en.wikipedia.org/wiki/French_Market [https://perma.cc/ZV8Z-RHLR] (last visited Mar. 5, 2020).

[21] Grand Bazaar, Istanbul, Wikipedia, https://en.wikipedia.org/wiki/Grand_Bazaar,_Istanbul [https://perma.cc/3PJ4-2N9P] (last visited Mar. 5, 2020).

[22] See Pete Schroeder, Facebook’s Zuckerberg Grilled in U.S. Congress on Digital Currency, Privacy, Elections, Reuters (Oct. 23, 2019, 5:06 AM), https://www.reuters.com/article/us-facebook-congress/facebooks-zuckerberg-grilled-in-u-s-congress-on-digital-currency-privacy-elections-idUSKBN1X2167 [https://perma.cc/8PT9-EBU2].

[23] U.S. Const. pmbl.

[24] Hosanagar, supra note 19.

[25] Id.