Washington Monthly - September/October 2019 - 113

Free Speech 2.0

In the age of Facebook and Google, can
the marketplace of ideas be saved?
By Phillip Longman

t has been just over a century since Justice Oliver Wendell Holmes essentially invented the modern First Amendment by declaring that the "theory of our Constitution"
requires government to preserve a "free trade in ideas." This, Holmes argued, was because "the best test of truth is the power of the thought to get itself accepted in the competition of the market."
Holmes was writing in dissent, but it didn't take long for the idea to catch on. In the
1927 case Whitney v. California, Justice Louis Brandeis joined Holmes in a landmark concurrence, arguing that when American political discourse becomes threatened by the
dissemination and consumption of false speech, "the remedy to be applied is more
speech, not enforced silence."
In the decades that followed, the notion that competition among ideas would correct
error and spread truth became a central tenet of First Amendment theory. Conservatives
and liberals differed often on what role they thought government should play to ensure
that the marketplace of ideas remained open and competitive. But, by and large, there developed a consensus that in an open and competitive speech environment, truth will eventually overcome falsehood and democracy will thereby be served.
This helps explain why, when the internet first came on the scene in the 1990s, few observers saw it as a threat to democracy, much less to the very concept of truth. Indeed, conventional wisdom predicted just the opposite. The new technology would break down barriers to entry, empowering more people to engage in a global exchange of ideas, overthrowing
old superstitions and barbarisms. Remember when people actually believed that Facebook
and Twitter would facilitate the spread of democracy and human rights and the toppling of
autocracies around the world?
Those hopes now seem painfully naive. From Russia to Myanmar to Pennsylvania Avenue, social media increasingly looks like a boon, not a threat, to illiberal regimes. What
went wrong? And how can we fix it? Those are the questions that Philip M. Napoli, a
professor of public policy at Duke University, sets out to answer in his new book, Social
Media and the Public Interest. The rise of social media platform monopolies like Facebook and
Google, Napoli argues, has created what he calls an "algorithmic marketplace of ideas" that
is most notable for the waste products it produces. These include the loss of competition in
the truth business caused by algorithmically engineered "filter bubbles" as well as the resulting spread of fake news. This market failure is so deep, Napoli argues, that it cannot be
solved by conventional antitrust or other competition policies.
Instead, he argues, Americans must embrace rigorous regulation of social media platforms so that they are made to serve public purposes. If that means rethinking traditional understandings of the right to free speech, so be it. "Just as it has been asked whether
the assumptions underlying the Second Amendment right to bear arms (written in the era
of muskets and flintlocks) are transferable to today's technological environment of highpowered, automatic assault weapons," Napoli writes, "it may be time to ask whether this
fundamental assumption of First Amendment theory, crafted in an era when news circulated primarily via interpersonal contact and print media, are transferrable to today's radically different media environment."
Napoli's analysis rests heavily on the role that corporate-controlled algorithms have
come to play in determining how most Americans receive their news. From the 1990s to the

Social Media and the Public
Interest: Media Regulation
in the Disinformation Age
by Philip M. Napoli
Columbia University Press, 296 pp.

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