In a sense, social media has become the ideal manifestation of the "Marketplace of Ideas" (hereinafter "Marketplace") that Chief Justice Oliver Wendell Holmes articulated. The Marketplace concept will be discussed in greater detail below, but in brief, it is the theory that truth will surface over falsehoods when all opinions and ideas are freely expressed, because the value or worth of that opinion or idea will be determined on the market of public opinion. Part I of this Note will examine the Marketplace concept through the works of various legal and philosophical theorists. Chief among them is Frederick Schauer's work Free Speech: A Philosophical Enquiry, in which he discusses the Marketplace theory and the concept's reliance on freedom of speech in order to pursue the truth and increase knowledge. Schauer points out two major assumptions that are critical to the Marketplace theory: 1) that reason prevails amongst all members of society and 2) that open debate and discussion are always beneficial because society will eventually be guided towards the truth. Schauer argues that neither of these assumptions are necessarily true, and in the instance of an emergency, the Marketplace theory breaks down entirely. However, Schauer and other Marketplace theorists' analyses do not end our inquiry into the disconnects between the Marketplace model and the utilization of social media during emergencies and public health crises. This Note next explores the use of limited regulatory structures in an adaptive Marketplace in the new environment of digital speech. This Note will examine the argument that freedom of speech in the digital age should have some form of regulatory structure in place, based on principles normally associated with collective self-government, to manage discourse and structure public debate. Additionally, this Note will explore Supreme Court opinions by former Chief Justice Rehnquist and Justice Brennan, in which the justices articulate the existence of mini-marketplaces, with the possibility of different regulatory schemes depending on each unique marketplace. Having established the background necessary for an understanding of the Marketplace theory, Part II of this Note will next turn to the application of these concepts in the context of social media. Social media's design openly embraces the Marketplace theory; it enables virtually anyone to contribute his comments, thoughts, and ideas to the conversation. These characteristics are equally applicable to social media's use as a resource during emergencies and public health crises. However, the intersection of social media and emergency situations is where the pure Marketplace theory begins to break down and the false assumptions of the model that Schauer exposed begin to show. Part III of this Note explores three main disconnects with the Marketplace theory and its application to social media and emergencies: 1) time for vast quantities of information to filter through the system, 2) potential negative effects as a result of false or counterproductive information, and 3) vetting the trustworthiness of sources.[...] Lastly, Part IV of this Note will propose self-regulation as a potential solution to the disconnects between the Marketplace and social media's use during an emergency or crisis. This Note will argue for a system of freedom of expression where self-regulatory structures exist to manage discourse and structure public debate, rather than a dialectical free-for-all in a pure Marketplace model. Relying on the theories of Justices Brennan and Rehnquist, this Note will then argue that social media use during an emergency or crisis creates its own mini-marketplace subject to its own unique regulatory scheme--a scheme of self-regulation. Having proposed this potential solution, Part V of this Note will then analyze case studies in which social media was used during an emergency or crisis. These case studies will reveal the use of self-regulation, thus demonstrating the Marketplace's ability to adapt in order to overcome the disconnects that arise in the context of the use of social media during emergencies and crises.
Viewer Discretion is Advised: Disconnects between the Marketplace of Ideas and Social Media Used to Communicate Information during Emergencies and Public Health Crises,
Mich. Telecomm. & Tech. L. Rev.
Available at: https://repository.law.umich.edu/mttlr/vol18/iss2/6