64. Four Ways of Seeing Free Speech
Truth, self-government, autonomy, and distrust of government
When we study the First Amendment, it’s easy to ask what kinds of speech are protected. But the deeper question is why speech is protected in the first place.
Over time, scholars and judges have offered four main answers. Each one captures something important about what free speech does for individuals and for democracy—and each one leaves something out.
1. Truth: The Marketplace of Ideas
The oldest theory is that free speech helps us find truth. The idea goes back to thinkers like John Milton and John Stuart Mill, who believed that when ideas clash openly, truth eventually wins out. Mill said that silencing an opinion doesn’t just harm the speaker—it robs everyone of a chance to test their own beliefs and correct mistakes.
American courts adopted this logic in what Justice Holmes famously called the “marketplace of ideas.” Just as competition in markets helps us discover fair prices, open debate helps us discover truth. Justice Brandeis built on this idea, calling free thought and discussion “indispensable to the discovery of political truth.”
Imagine a classroom discussion about affirmative action or gender discrimination. Students argue about what equality really means: some defend colorblindness, others argue for context-sensitive remedies, some raise questions about stigma, and others emphasize structural bias. The professor doesn’t announce a winner. The point is the process: students test each other’s reasoning, see where assumptions clash, and refine their understanding through debate. Truth, in this sense, isn’t a fixed answer; it’s something we approach by engaging all the arguments, even uncomfortable ones.
Of course, the “marketplace” doesn’t always work perfectly. Algorithms, ad money, and misinformation can distort what people see and hear. A modern version of this theory focuses on building better conditions for truth-seeking: diverse media sources, transparency about funding and authorship, education in critical thinking, and tools to verify information. The idea is to make sure truth has a fair shot.
2. Self-Government: Speech as the Engine of Democracy
The second theory sees free speech as essential to democracy itself. We protect expression because citizens can’t make informed decisions without hearing, debating, and criticizing ideas. As Justice Brandeis put it, public debate must be “uninhibited, robust, and wide-open.”
Scholar Alexander Meiklejohn used a town meeting to explain the idea. In a democratic town, every citizen gets to speak before a vote. Free speech is part of the process of collective self-rule.
Think about a student government election on campus. Two candidates have large followings and lots of money; they buy social media ads, print glossy posters, and dominate everyone’s feeds. A third candidate, running on a platform for low-income or international students, can barely afford flyers. Technically, everyone is “free” to speak, but in practice, the conversation is one-sided.
Modern scholars Cass Sunstein and Owen Fiss would say that democracy facing this problem needs structural fixes to make discussion fairer. Disclosure rules could show who’s funding the campaigns, so voters know whose interests are behind the messages. Public-interest media—like a campus newspaper offering equal space to all candidates—could ensure everyone gets heard. Spending limits or matching funds could stop wealthy candidates from drowning out smaller voices. None of these reforms tell anyone what to think; they simply make sure everyone has a meaningful chance to participate.
(Importantly, Sunstein and Fiss stay within a viewpoint-neutral, procedural frame: they want to improve the infrastructure of democracy, not pick sides in ideological debates. That distinguishes them from the power-critical theorists you’ll read next—think MacKinnon or Marcuse—who go further by questioning whether neutrality itself can ever be fair when power is uneven.)
Robert Post pushes back—not because he disagrees that democracy needs open discussion, but because he thinks Sunstein and Fiss’s solutions risk undermining the very independence they hope to protect. If the government starts deciding what counts as “good,” “balanced,” or “responsible” discourse, it begins to act as a referee in public debate. A rule meant to “improve” democratic conversation can quietly turn into a rule that shapes it.
Post’s concern is subtle but important: the same state that creates fairer conditions for speech also gains the power to define them. What one era calls “responsible regulation” might be seen by the next as bias or censorship. Once officials start engineering the conversation (even with neutral intentions), they inevitably influence what counts as credible or worthy of attention.
In his view, democracy’s legitimacy depends on citizens themselves, not institutions, sorting truth from error. The process must remain messy, loud, and sometimes irrational because the right to self-government includes the right to get it wrong. Post’s warning to Sunstein and Fiss is that if we overdesign the forum, we risk trading the people’s rough, authentic judgment for a managed, curated version of democracy.
In short, Sunstein and Fiss want to strengthen the conditions for democratic speech so everyone can participate meaningfully; Post wants to preserve the freedom of that speech, even when it’s chaotic. All three agree that self-government depends on public debate—they just differ on how much structure democracy can bear before it stops being truly free.
3. Autonomy: Speech as Self-Expression
The third theory focuses on the speaker rather than the system. It says speech is protected because it’s part of what it means to be a free person. Speaking, writing, creating, and even joking are ways we express identity and make sense of who we are in the world.
For scholars like C. Edwin Baker and Martin Redish, expression is about self-realization. They argue that when the government tells you what you can or can’t say, it’s not just regulating communication—it’s regulating you. To censor someone’s voice is to narrow the space in which they can think, imagine, or grow.
Think of a law student starting a podcast about life in law school. Some episodes tackle serious issues like student debt, access to justice, or diversity in the profession. Others are funny or deeply personal, talking about burnout, doubt, or identity. None of this is “political” in the traditional sense, but all of it is expressive. It’s how someone makes meaning out of experience and claims ownership of their own story.
Autonomy theory helps explain why the First Amendment protects art, literature, music, comedy, and satire—forms of speech that shape how people see themselves and one another, even when they don’t touch policy. It also helps explain why dissenting and creative voices are so valuable. Someone who writes a provocative novel, creates political art, or challenges social norms is exercising the freedom to define their own values and vision of life. That act of self-definition strengthens society, because it keeps culture plural and open.
Critics like Robert Bork argue that “self-fulfillment” is too vague to guide courts because many things fulfill us that the Constitution doesn’t protect. But defenders respond that speech is unique because it’s how humans reason, imagine, and connect. Protecting speech protects the process of becoming fully human, i.e., the ability to think freely, speak honestly, and be known on one’s own terms.
4. Distrust of Government: The Negative Theory
The last theory is built on skepticism. It protects speech not because all speech is noble, but because government cannot be trusted to decide which speech is too dangerous. History shows that officials often use censorship to protect themselves, punish critics, or enforce conformity.
Imagine a group of students protesting a new state law. They criticize the governor on social media and hold signs on campus. The state calls it “disruptive” or “unpatriotic.” The First Amendment protects them, not because they’re necessarily right, but because the government shouldn’t decide what loyalty or truth looks like.
This “negative theory” finds its moral core in West Virginia v. Barnette, which declared that “no official, high or petty, can prescribe what shall be orthodox.” Free speech, on this view, is a safeguard against the state’s tendency to demand agreement.
Its strength is clarity: if power can’t be trusted, limit it. But it leaves open the question of private power, or the ways corporations and platforms now shape what people see or say. A modern update adds non-coercive checks: transparency about moderation, appeal rights for users, competition laws that prevent any single company from controlling the conversation. These reforms try to reduce distortion without handing more control to the state.
Why These Theories Still Matter
Each theory captures one side of what the First Amendment is trying to do:
Truth: Protect the process of testing ideas.
Self-government: Keep debate open so citizens can rule themselves.
Autonomy: Honor the role of speech in shaping identity and conscience.
Distrust: Limit power, especially the power to decide who gets to speak.
Together, they show that free speech isn’t just about words but about how a society learns, governs, and grows. The challenge for modern lawyers and citizens is to carry these ideas into a world of digital platforms, polarized media, and attention economies without losing the humility that the First Amendment was built on: the belief that truth and freedom must be discovered through open, sometimes uncomfortable, conversation.
I understand why the oldest theory of free speech is to help us find the truth and that at the time that John Milton and John Stuart Mill were thinking about free speech this seemed like the most prominent reason for it. However, I think that the marketplace of idea concept is not realistic or attainable today as this open debate idea because of the use of social media and honestly human nature in general. In both our online presence and our physical presence in the world, everyone selects who they want to listen to, talk to, follow, or even watch. Although it may seem easier online because these algorithms are programmed to prioritize what individuals like or gravitate towards opposed to what they don't. However, the same can be said for an individual walking down the street, sitting in a busy public setting or even listening to the radio or news.
I also think this idea isn’t attainable even if social media and technology were not so prevalent in our lives. Unless an individual is living in or working in an area that has some diversity this idea that so many different views and opinions will be prevalent, let alone discussed, seems unrealistic. As well people tend to gravitate towards others who have similar interests, ideas and morals so I’m skeptical that this melting pot of opinions and thoughts will meet the same complexity that was thought of when this marketplace of ideas concept came to be. Although distortion is and always will be prevalent, I think it ultimately comes back to the individual on how open they are to seeing/hearing other views and also be skeptical on what they see or hear to be true.
In recent years, I have found myself less and less convinced by this "marketplace of ideas" theory and I find it strange that some people are obsessed/fixated on this notion that there was ever a time in American history that people just randomly congregated in public settings with the goal of transacting ideas. And I find it even more strange, given the lack of a historical precedent for this idea, the people who believe in "the public square" or "the marketplace of ideas" also often believe that people nowadays are entitled something that never truly existed in the first place. Travel to any major American city and you will inevitably find someone on some street corner shouting into a megaphone about how some group of people is going to burn in Hell or how some major catastrophe was actually orchestrated by a malevolent group of the world's wealthiest. This is, in essence, the last/only vestige of the "public square" that some people are so obsessed with resurrecting. And when you see this person shouting conspiracies on the street corner, you will also notice that every single passerby does exactly that: pass by. They walk right past the person without ever acknowledging their existence, let alone stopping to engage a thoughtful, nuanced discussion with the person. Because that's exactly what you do when a stranger is doing that. If you were to go back in time to the Nation's founding, I imagine that the situation would play out similarly. People have jobs, families, and other obligations to attend to. On a practical level, it is silly to think that someone is going to spend their already-limited free time to stop and artfully discuss politics, religion, philosophy, etc with a complete stranger on a street corner. This version of "the marketplace of ideas" has never existed. People more often engage in fruitful political discussions among friends/family in informal settings not viewable to the public, and that still occurs to this day.
With that in mind, I think of free speech as being an important vehicle for self-expression, and government restriction on speech should be scrutinized because of the theory of distrust. I am ambivalent about the self-government theory, mainly due to how easy and fast misinformation circulates nowadays.