As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory—the First Amendment—as well the institutional press, once a key gatekeeper of that marketplace. Yet, both the institutional press and the First Amendment have limitations that hamper their ability to spark transformative change. Instead, this Article proposes that we look to journalism.
Journalism is not the press or a journalist. Rather, it is a method and a practice—an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise.
Seeding and propagating journalism could have numerous benefits. It could help to provide some of the norms desperately needed for our new information environment. It might inject democratic values into an information ecology that is driven by profit-seeking. It could create friction where speed and scale now reign. Finally, it could help reinvigorate and even repopulate an institutional press in desperate need of reinforcement.
12 Drexel L. Review 691
This Essay argues that formalism is not formal. Formalism cannot deliver on its own claim to political neutrality, to deciding pursuant to pure law. Law and politics always intertwine in Supreme Court decision making. Thus, political considerations have infused not only the legal profession’s widespread commitment to formalism but also, and perhaps more important, the Roberts Court’s First-Amendment decisions. A focus on the recent gerrymandering decision, Rucho v. Common Cause, demonstrates how formalism influences free-speech cases without being determinative. In the conclusion, the Essay argues that court-packing might be the only viable progressive response to the conservative bloc’s free-speech decisions undermining democracy.
12 Drexel Law Review 723
In this Article, I evaluate online-platform disclosure laws under a thicker conception of the marketplace of ideas using the attentional-choice theory of competition. Contrary to the outcome in McManus, I conclude that platform disclosure laws are fully consistent with (and even supportive of) robust competition in the marketplace of ideas.
12 Drexel Law Review 765