Scope of the First Amendment Freedom of Speech
![handle is hein.journals/uclalr25 and id is 980 raw text is: SCOPE OF THE FIRST AMENDMENT
FREEDOM OF SPEECH
C. Edwin Baker*
This paper develops three theories of the scope of speech pro-
tected by the first amendment: two different marketplace of ideas
theories, which I will call the classic model and the market failure
model, and a third, the liberty model. The classic model depends
on implausible assumptions for its coherence. The market failure
model is unworkable, dangerous, and inconsistent with a reason-
able interpretation of the purpose of the first amendment. Al-
though the Court consistently has used and proclaimed the classic
theory and though most modem reformist proposals recommend a
market failure model, the liberty model provides the most coher-
ent theory of the first amendment. Adoption of this theory,
which delineates a realm of individual liberty roughly correspond-
ing to noncoercive, nonviolent action, would have major, salutary
implications for judicial elaboration of the first amendment.
The classic marketplace of ideas model argues that truth (or
the best perspectives or solutions) can be discovered through ro-
bust debate, free from governmental interference. Defending this
theory in On Liberty,' John Stuart Mill argued that three situa-
tions are possible: 1) if heretical opinion contains the truth, and if
we silence it, we lose the chance of exchanging truth for error; 2) if
received and contesting opinions each hold part of the truth, their
clash in open discussion provides the best means to discover the
truth in each; 3) even if the heretical view is wholly false and the
* Assistant Professor of Law, University of Oregon. Thomas I. Emerson, Er-
nestine Magagna Baker, and Falcon 0. Baker encouraged and aided me in writing
earlier versions of this paper. Margaret Jane Radin, Jennifer Friesen, Paula Wilk and
the editors of UCLA Law Review have made helpful comments on recent drato The
help of those and other teachers is much appreciated. This article is scheduled to
appear as one of a series of essays in CONSTITUTIONAL GOVERNMENT IN AMERICA
(R. Collins ed. 1979).
1. J. S. MILL, ON LIBERTv(1956) [hereinafter cited as ON LIBERTY]. Mill's ar-
gument was made in a long chapter, Of the Liberty of Thought and Discussion, id. at
19-67, which he intended to serve as an example of his defense of liberty in general. In
fact, his argument for liberty in general rests on different assumptions and is not
subject to the criticisms I will make of his defense of liberty of thought and discussion.](ViewImageLocal?handle=hein.journals/uclalr25&div=50&collection=&method=preview&ext=.png&size=3)
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Scope of the First Amendment Freedom of Speech
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