77 U. Colo. L. Rev. 649 (2006)
Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas

handle is hein.journals/ucollr77 and id is 657 raw text is: SHOPPING BADLY: COGNITIVE BIASES,
COMMUNICATIONS, AND THE FALLACY OF
THE MARKETPLACE OF IDEAS
DEREK E. BAMBAUER*
The model of the marketplace of ideas governs critical decisions in
American jurisprudence on regulating communications. This theory
holds that, over time, we collectively process ideas and information
to separate truth from falsehood. State intervention is therefore un-
necessary and undesirable, for it may prevent us from discovering in-
elegant but useful ideas. However, research in cognitive psychology
and behavioral economics shows that we operate with significant,
persistent perceptual biases that undercut this model's assumptions.
The marketplace model errs in describing how we interact with in-
formation; accordingly, it cannot reliably assess when regulation is
desirable. We should discard the marketplace of ideas as our frame-
work for evaluating communications regulation. Doing so helps us
evaluate state intervention in the context of our informational biases
and pushes us to analyze our real justifications for protecting com-
munication.
INTRODUCTION: SEARCHING FOR WEAPONS, SEEKING TRUTH
In February 2003, U.S. Secretary of State Colin Powell appeared
before the United Nations Security Council to charge that Saddam Hus-
sein possessed chemical and biological weapons and sought to produce
fissile nuclear material.1 Powell stated that Iraq's military was conceal-
ing warheads containing biological weapons under palm trees in western
* Fellow, Berkman Center for Internet & Society, Harvard Law School. The author
thanks Dan Hunter, Jonathan Zittrain, Urs Gasser, John Palfrey, Thinh Nguyen, Kara Zivin
Bambauer, Rebecca Watt, Rebecca MacKinnon, David Weinberger, Jeffrey Engerman, Lewis
Hyde, Meg Smith, Henrik Schneider, and Zephyr Teachout for helpful comments and critiques
of drafts of this paper. The author thanks Tanya Bentley, Pamela McMahon, and Elizabeth
Stark for research assistance. Comments are welcomed at dbambaue@cyber.law.harvard.edu.
1. See, e.g., Glenn Kessler & Colum Lynch, Powell Lays Out Case Against Iraq, WASH.
POST, Feb. 6, 2003, at Al; Peter Slevin, Data on Efforts to Hide Arms Called 'Strong Suit' of
Speech, WASH. POST, Feb. 6, 2003, at A28.

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