The fallout from the COVID-19 pandemic in the US has placed a spotlight not only on the fragility of the American economy and the perils of yawning income and social inequality, but also on the dangers flowing from the crisis of truth infecting US politics and American culture more broadly.

In particular, President Trump’s purported daily coronavirus ‘briefings’ have morphed into brazen campaign rallies laden with falsehoods and incendiary rhetoric directed at the press, the World Health Organisation, and Democrats, among others.  Trump’s sustained and increasingly vitriolic attacks on reporters during the pandemic are especially troubling as they undermine the First Amendment’s basic assumption that the press serves as an important restraint on government.

Additionally, Trump recently voiced support for public protests against stay-at-home orders in states led by Democrats, calling on certain states to ‘liberate’ and save their ‘great Second Amendment’, and suggested that coronavirus patients could be injected with disinfectant.  While such antics have become commonplace during Trump’s tenure, and Americans are becoming increasingly inured to such assaults on truth, the President’s statements concerning the pandemic provide the opportunity to pause and reflect on how one of the most fundamental parts of the American free speech tradition may be a failed experiment, and what this may mean for the future of free speech in the US.

The Marketplace of Ideas

The marketplace of ideas is premised on the belief that the primary purpose of the First Amendment to the US Constitution is to preserve an uninhibited environment in which truth will ultimately prevail.  The Supreme Court holds that the First Amendment recognises no such thing as a false idea, and that however pernicious an opinion may seem, we must depend on its correction not from judges or juries but from the competition of other ideas.  For two centuries, the marketplace of ideas has taken centre stage in American free speech jurisprudence, distinguishing the US from other liberal democracies that impose restrictions on speech that is considered to be of little or no value to public debate.  For example, the Council of Europe’s approach to speech regulation is predicated on the notion that not all ideas are deserving of circulation in the public sphere and that the right to express one’s opinions may be outweighed by competing societal interests, including the rights of others.

The Assault on Truth in Contemporary American Politics

The current state of American politics highlights the unique challenges to this firmly entrenched principle in the twenty-first century.  In 2020, the fact that such a thing as objective truth even exists is a contested notion.  Kellyanne Conway, the Counselor to President Trump, introduced the notion of ‘alternative facts’, and Trump’s personal lawyer, Rudy Gulliani, infamously claimed that ‘truth isn’t truth’.

As for Trump himself, after three years in office, he has made over sixteen thousand false or misleading claims.  Equally concerning, conspiracy theories that were once on the very fringes of the political spectrum are becoming more and more mainstream during the Trump era, fuelled in part by the combination of the President, the internet, and Fox News.  In the current political climate, this has led a shocking percentage of Americans to buy into conspiracy theories involving COVID-19, including that the virus is a hoax perpetrated by Democrats to undermine Trump’s presidency, that it is no more dangerous than the common flu, and that Bill Gates, who has voiced criticism of Trump’s response to the pandemic, created the virus and is part of a plot to use the virus to surveil or cull the global population.

According to the New York Times, misinformation concerning Gates is currently the most widespread of all coronavirus fabrications, which include 16,000 posts on Facebook and YouTube videos that have been viewed almost five million times.  Such theories, along with President Trump, are fuelling the public protests to lockdown orders in several US states.  While marketed as grass roots efforts by concerned every-day Americans exercising their First Amendment rights, such activism is in fact being amplified, and in some cases coordinated via social media, by far-right groups that were initially formed with the assistance of Republican megadonors.  While the damage flowing from such efforts may be impossible to quantify, there is no doubt that Americans are literally dying as a consequence.

Additionally, Trump’s behaviour as President challenges the principle that government statements, and government actions and programs that take the form of speech, do not normally trigger the First Amendment rules designed to protect the marketplace of ideas.  Of equal concern, recent Supreme Court decisions have paved the way for wealthy corporations and individuals to contribute unlimited sums to politicians and causes, including the Koch brothers, who spent $400 million on the 2018 midterm elections alone and have invested massive sums in order to stymie any governmental effort to acknowledge or combat climate change in order to protect their financial interests in the fossil fuel industry.  In short, the contemporary ‘marketplace’ is dominated by President Trump and those with the financial means to magnify their voices in order to exercise an outsize influence on law, culture, and politics.

Where Do We Go From Here?

So what does all of this mean for the marketplace of ideas?  At the very least, it means that this is a time for serious introspection concerning whether, after 230 years, it is time to rethink this cornerstone of America’s free speech paradigm.   To do so would be a significant undertaking, as the marketplace of ideas is interconnected with other fundamental American constitutional principles, including the presumption that viewpoint and content-based proscriptions on speech violate the First Amendment and the conceptualisation of liberty in purely negative terms.  Nevertheless, it is important to consider the ways in which the current approach has not only permitted, but arguably fostered, an environment in which a President with authoritarian impulses, and the billionaires backing him, utilise social media in addition to the bully pulpit of office to consistently misinform the public for political gain and undermine democratic institutions, even when the costs of such actions can be measured in American lives.

Moreover, while the ultimate objective of the marketplace of ideas is to reach truth through the competition of ideas, this principle is premised on the assumption that all voices have equal access to the marketplace and that all citizens agree both that objective truth exists and that the goal is to find it, which is clearly not the case in the contemporary US, as emphasised above.  Additionally, another fundamental part of America’s free speech tradition is the principle that an informed public is the essence of working democracy.  Yet, the US currently has an executive branch that is actively endeavouring to misinform the public on a routine basis and a social media environment in which such misinformation is communicated to the masses with a single keystroke.  This reveals a contemporary tension between the US approach to free speech and the health of American democracy.

It is unlikely that the Founding Fathers envisioned the current political environment, led by a President who constantly demonises the press and seems incapable of discerning fact from fiction, and a ruling political party funded by billionaires intent on denying a real and existential threat to the planet.  Yet, as it is the government, largely driven by Trump, that is leading the charge on the assault on truth, what are we to do?  Surely, we cannot trust the government to adequately address a problem that it is instrumental in exacerbating.  At the same time, is the status quo sufficient?  The answer to this question must be no, as 230 years of an uninhibited marketplace of ideas has most certainly not resulted in an environment in which truth has prevailed.  Therefore, Americans must resist the temptation to view the First Amendment through a lens of philosophical dogmatism and be willing to ask difficult questions regarding whether the marketplace of ideas is a failed experiment. It may also be time to examine how the US approach to free speech may be contributing to the erosion of the most fundamental principles of American democracy, and what should be done about it.

Eliza Bechtold, Durham University Law School.

This post originally appeared on the UK Constitutional Law Association Blog and is reproduced with permission and thanks.