The Marketplace of Ideas

This chapter details how Justice Oliver Wendell Holmes Jr. was criticized for applying the clear and present danger test narrowly. Holmes subsequently became a zealous advocate for John Stuart Mill's understanding of free expression, making Holmes the vehicle to introduce On Liberty's philosophy into US constitutional law. His adoption of Mill includes an understanding in Abrams v. United States (1919) that the First Amendment protects what would eventually be called a “marketplace of ideas.” This notion of letting ideas compete with each other—rather than the state deciding what speech was valuable—echoes Mill's On Liberty, especially in Holmes's defense of protecting even ideas we “loathe and believe to be fraught with death.” Holmes maintained a similar approach in his Gitlow v. New York (1925) dissent, and he was joined by Justice Louis Brandeis in his support for this view of free speech, particularly in Brandeis's concurrence in Whitney v. California (1927).