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The Case of the Contentious Metaphor: The Marketplace of Ideas as Modernist Mystery

A curious anomaly haunts our constitutional discourse. Viewed through a literary lens, it rises to the status of mystery; for in law as in art, mysteries abide. Its origins are Holmesian—not in the logical inferences of Sir Arthur Conan Doyle’s fictional detective Sherlock Holmes, but in the terse jurisprudential aphorisms of U.S. Supreme Court Justices Oliver Wendell Holmes, Jr. and William O. Douglas. Its form is rhetorical and tropological—in the terms “free trade in ideas” and “marketplace of ideas” coined by the aforementioned jurists. The anomaly itself is historical: While judges embrace these metaphors, jurisprudential scholars repudiate them. Numerous critics (for example, Baker, “Scope” 979; Barron 1641; Bosmajian 49-72) have noted the anomaly; none has offered an explanation for it. This essay attempts to answer the question: Why does our 21st century U.S. Supreme Court champion the claim that maintaining a free marketplace of ideas is a primary value of the First Amendment to the U.S. Constitution, when mere invocation of the metaphor is dismissed with derision and contempt in the legal literature? While the course of analysis flows through the bedrock of arguments for, and indictments of, the trope, it attempts neither to weigh systematically the pros and cons of marketplace justifications for free speech nor to test the consequences of their employment. Instead, this essay focuses upon the rhetorical functions the metaphor performs in the rough-and-tumble process of making and justifying judicial decisions. Thus it aims to unveil the mystery; it proceeds not as a whodunit but rather as a whydunit. This investigation proceeds according to Kenneth Burke’s “conditions for ‘mystery’”: a “pronounced social distinction” between “two classes (or ‘kinds’) of people” (Rhetoric 115) resulting in a “trained incapacity” of each to grasp what the other sees (Permanence 49). Communication scholars can provide “interpretive frameworks” which may “overcome ‘trained incapacities’ by broadening the focus of what is considered when ‘communication’ is studied” (Goodall, Wilson, and Waagen 85 n. 2). Specifically, this essay proposes that judges often focus upon that which legal scholars miss. It sheds light on judges’ linguistic (tropological) and argumentative strategies in constructing justifications for judicial decisions regarding rights of free expression, contrasting these with the strategies of academic critics. Jurists’ reliance upon metaphor constitutes a more abstract condition: “Metaphor happens when the concrete image of a familiar reality is suddenly perceived in a new and unfamiliar way that links it with an unknown reality, thus permitting us to grasp at least partially the unknown, and adding a dimension of mystery to the familiar” (Halloran 106, emphasis added).