ABSTRACT
In this chapter, the author presents three theories of the scope of speech protected by the first amendment: two different marketplaces of ideas theories, which he calls the classic model and the market failure model, and a third, the liberty model. The classic model depends on implausible assumptions for its coherence. The market failure model is unworkable, dangerous, and inconsistent with a reasonable interpretation of the purpose of the first amendment. Although the Court consistently has used and proclaimed the classic theory and though most modern reformist proposals recommend a market failure model, the liberty model provides the most coherent theory of the first amendment. The classic marketplace of ideas model argues that truth can be discovered through robust debate, free from governmental interference. Concluding that freedom of speech requires protecting self-chosen, nonverbal conduct from certain forms of government abridgement involves a considerable revision of first amendment theory.
