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 unnecessary and undesirable, for it may prevent us from discovering inelegant 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 information; accordingly, it cannot reliably assess when regulation is desirable. We should discard the marketplace of ideas as our framework 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 communication.
Derek E. Bambauer,
Shopping Badly: Cognitive Biases, Communications, and the Fallacy of the Marketplace of Ideas,
U. Colo. L. Rev.
Available at: https://scholar.law.colorado.edu/lawreview/vol77/iss3/4