Redefining the marketplace of ideas in the digital era: the case for regulation of social media platforms
Imagine being thrown under the water in a pool as a kid. You’re playing with your older siblings and they decide, for fun, to dunk you. It’s all done in good jest. They do it over and over again, but they always make sure you can come up for air between being tossed under. You fight back but you’re never truly scared. You know they’re not trying to drown you — you will always be able to come up for air.
This dunking process is much similar to the philosophy that guides our First Amendment freedom of speech rights in the United States. The two philosophers who have most impacted American beliefs around freedom of speech are John Stuart Mill and Immanuel Kant. In On Liberty, Mill argued that false opinions have intrinsic value because they provoke people to investigate ideas, and this investigation is what enables truth to be discovered.  According to this logic, debate requires the truth to be defended, which only makes it stronger in time.  In “On a supposed right to lie because of philanthropic concerns”, Kant argues that lies undermine the credibility of those who utter them, which will invariably result in people trusting liars less over time. 
Overall, the governing assumption was that in conversation, truth would always rise to the surface in time. These philosophical assumptions influenced the American Supreme Court’s perspectives on free speech, which in turn affect American views of free speech today. Impacted by Mill and Kant, Supreme Court Justice Oliver Wendell Holmes Jr. enshrined the “marketplace of ideas” concept into American free speech in the landmark Brandenburg v. Ohio case of 1969. He argued that a free trade of ideas was necessary for truth to emerge in a democratic system.
Much like coming up for air in the dunking scenario above, free speech was seen a process through which ideas would jostle and refine one another, eventually exposing truth. As it turns out, that description is a fairly accurate one of how things used to be. Until the rise of digital media, that is. Today we have a new problem on our hands. Fake news has been rampantly spreading on online communication platforms, and these platforms have been largely unregulated. In other words, there is too much information, and too little time, for the marketplace of ideas to correctly play out in the digital space.
Fake news now spreads so quickly that truth is no longer guaranteed to rise to the surface through traditional forums of debate. During the 2016 U.S. Presidential election, the 20 top-performing false election stories from ‘hoax sites and hyper partisan blogs’ generated 8,711,000 shares as compared to the 20 top-performing election stories from 19 major news outlets which generated 7,367,000 shares.  A Massachusetts Institute of Technology study of Twitter found that “false stories diffused ‘farther, faster, deeper, and more broadly than the truth in all categories of information’” and that “the truth, in other words, could not rise to the top [of the marketplace of ideas] because the marketplace was packed with lies.”  Alarmist content spreads faster than positive content online because emotions are more easily manipulated using fear and anxiety.
It’s one thing to disagree about how to handle a problem, it’s another thing altogether to disagree about the very existence of a problem. What’s at stake here isn’t just the fact that we are living in a polarized society with two fundamentally different versions of reality, what’s at stake is also how we will handle every single problem our nation faces because of those competing views of reality.
A functional marketplace of ideas presumes two things: firstly, that true ideas can be discovered; and secondly, that participants are actually trying to discover them. Are these two things possible when it comes to modern-day digital communication?
Saying ‘truth can no longer be discovered’ is definitely a bit of a hyperbolic stretch. That said, when it takes an extreme effort over a prolonged period of time to discover truth, bearing in mind that most of us don’t have the luxury of time what with the comings and goings of everyday life, the question remains: how feasible is it really to discover truth? The modern-day internet ecosystem is built around tailoring content suited to our tastes. When we enter a question into google, the results that show up will depend not on the quality of the search results but on their popularity, as well as our previous search history and our location. Search engines’ measure of success isn’t providing you with accurate information, it’s providing you with information you will click on. To do so, they send you to websites that are in line with your beliefs and biases.
Now for the second premise. Are we even trying to discover truth? More of us than ever before are getting our news from social media platforms. According to a Pew Research report, 62% of people in 2016 primarily got their news from social media.  Not only is social media known to reduce attention spans and reduce our ability to concentrate, it also promotes content that aligns with our own views. The algorithms that generate social media content are produced by people who think they know (and often do) the kinds of things we like — which they then send our way. 
Beyond becoming a source of information, social media has also become the new forum for political debates, discussion and opinion making. In other words, social media has become the new public sphere.  Having complex conversations in this new public sphere with people who disagree with your politics is all too often the online equivalent of trying to run with your feet tied: you’re not going anywhere anytime soon.
Much like search engines, social media accounts’ measure of success is our continued use of their platforms, which we are more likely to do if we like what we see. As Nobel prize-winning economist and psychologist Herbert Simon once said, “What information consumes is rather obvious: it consumes the attention of its recipients”.
A discussion of social media would be incomplete without also talking about foreign interference and the use of bots to generate and spread false information. Online platforms not only have a questionable way of promoting content, they are also extremely likely to be manipulated by malign actors. In short, predominantly getting your news from social media hardly qualifies as ‘actually trying to discover truth’. Political entities have been notorious for using ads or automated messages on social media sent by bots to mass target specific demographics that are particularly susceptible to deceptive messages, possibly tricking many of these voters into voting against their interests.  Between Sep 16th and Oct 21st 2016, 20% of all election tweets were generated by bots.  The Bruno Kessler Foundation has produced research showing that during Spain’s 2017 referendum on Catalan independence, social bots were leveraged to retweet violent and inflammatory narratives, increasing their exposure and exacerbating social conflict.  Ultimately, social media platforms are quick to take credit for their use in spreading pro-democracy governments across the globe, but very slow to acknowledge their role in exacerbating conflicts and spreading misinformation. 
Now, none of this is an indictment of social media platforms themselves or new digital communication methods. In fact, protecting the online marketplace of ideas is crucial. As the new public sphere, it is the only way for many of us to interact with people who hold vastly different beliefs from our own. In a country whose ideological differences are often reflected by geographic location, it’s not uncommon for entire communities to hold similar political views to one another. If we resist the urge to delete, unfollow or unfriend people we don’t agree with online, social media can be a valued way to hear differing views.
There is no alternative to the new public sphere, nor should it be abolished. The problem is that this new public sphere is functioning under the same assumption that undergirded the pre-digital public sphere, which is that the marketplace of ideas will play itself out and that people should be therefore be allowed to say whatever they want to whomever they want. This is far from the truth. The marketplace of ideas no longer works in the digital public sphere, and protecting this public sphere certainly demands more attention than we have been giving it. Refining it to make it be the best it can be should include regulating the spread of fake news on social media platforms.
Ultimately, free communication is never free. By decreasing its cost, we have decreased its value. Our challenges will be to rebuild a system of value, to better understand the vulnerabilities of our own minds, and to develop a greater awareness of how the economics of information work.
The philosophical assumptions that influenced the American Supreme Court’s perspectives on free speech no longer hold true when applied to online media platforms. Protecting individual right to expression and opinion is one thing. Protecting the right to spread false information with vast, dangerous consequences is another altogether. The truth of the matter is that our constitutional legal system is unequipped to handle the digital era. The longer we wait to regulate the spread of fake news, the further we cement the identity we are forging as a nation: one that is divided on itself. We’re in the pool, we’re being dunked, and we’re no longer coming up for air. In fact, one might say we are drowning.
 John Stuart Mill, On Liberty, reprinted in On Liberty, Utilitarianism and other essays 19–21, 35 (Mark Philip & Frederick Rosen eds., 2015).
 John Stuart Mill, On Liberty, reprinted in On Liberty, Utilitarianism and other essays, 35 (Mark Philip & Frederick Rosen eds., 2015).
 Immanuel Kant, On a Supposed Right to Lie Because of Philanthropic Concerns,
reprinted in Ethical philosophy, 163–164 (James W. Ellington trans., 2d ed. 1994).
 Craig Silverman, This analysis shows how viral fake election news stories outperformed real news on Facebook, Buzzfeed, 11/16/2016
 Ari Ezra Waldman, The Marketplace of Fake News, 20 U. PA. J. CONST. L. 845, 863 (2018) (quoting Soroush Vosoughi et al., The Spread of True and False News Online, 359 SCIENCE 1146, 1147 (2018)).
 Jordan Crook, 62 percent of U.S. adults get their news from social media, says report, TechCrunch, 05/26/2016
 Nathan Heller, The failure of Facebook democracy, The New Yorker, 11/18/2016
 Dr. Francis Arackal, Social Media as a Tool of Political Communication, Amity Journal of Media & Communication Studies (ISSN 2231–1033) Copyright 2016 by ASCO 2016, Vol. 5, №3 p.264
 Jonathan D. Varat, Truth, Courage, and Other Human Dispositions: Reflections on Falsehoods and the First Amendment, 71 OKLA. L. REV. 48–49 (2018).
 Nathaniel Persily, Can Democracy Survive the Internet?, 28 J. DEMOCRACY, 70 (2017).
 Filippo Menczer and Thomas Hills, Information Overload helps fake news spread, and social media knows it, Scientific American, 12/01/2020
 Nicki Woolf, Obama is worried about fake news on social media — and we should be too, The Guardian, 11/20/2016