Editor’s Note

Abstract

In June 2018, the Supreme Court of the United States demonstrated, as it has done many times in the past, the enduring versatility of the marketplace of ideas theory. The issue in National Institute of Family and Life Advocates v. Becerra was the constitutionality of a California law requiring pregnancy-related clinics to provide information to clients about abortion rights and services. Writing for the five-member majority, Justice Clarence Thomas found the law unconstitutional because, in part, “When the government polices the content of professional speech, it can fail to ‘preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.’” Professionals might have a number of goodfaith disagreements, Justice Thomas wrote, and government interference by requiring some professionals to disseminate certain messages, runs counter to the notion that “‘[t]he best test of truth is the power of the thought to get itself accepted in the competition of the market.’” Writing in dissent, Justice Anthony Kennedy took issue with the use of the marketplace of ideas to suppress information. The marketplace, he wrote, “is fostered, not hindered, by providing information to patients to enable them to make fully informed medical decisions in respect to their pregnancies.” In its most recent application of the marketplace theory, therefore, as has happened many times in the past, both sides found solace in the marketplace of ideas, demonstrating that the theory is arguably the most enduring, most powerful and most versatile of any theory called upon by the Court. Justices have referenced the marketplace of ideas theory hundreds of times since its 1919 emergence as part of free speech