A marketplace of ideas or 'continuous partial attention'? Adapting to an online world.

In 1919, Justice Oliver Wendall Holmes Jr. famously penned what has come to be known as the "marketplace of ideas" concept. The concept, firmly rooted in First Amendment jurisprudence, is based on the notion that a free society requires a free-flow of ideas, with each of us free to speak, write, and publish on all subjects. In Justice Holmes' words: "[T]he ultimate good desired is better reached by free trade in ideas ... the best test of truth is the power of the thought to get itself accepted in the competition of the market."

The "marketplace of ideas" meme endures.

But the courts are likely to face new versions of the opinion "marketplace" and new pressures to impose lawyerly order on the cacaphony. Consider:

* The coming of talk radio (channeling the anger and shouts of shock jocks and ideologues, at least in the era before Don Imus tripped up by attacking the Rutgers women's basketball team)

* Cable channels (filling time with left and right bellowing at one another as each side purports to be "fair and balanced")

* YouTube citizen journalism (allowing a candidate's offhand racist comment--"macaca"--to reverberate and be magnified over and over in the media)

* Internet blogs (in the blogosphere, as BuzzMachine's Jeff Jarvis observed--even before Mike Kinsley began his experiment with wikieditorials--editing takes place after publication, not before).

When I've defended defamation lawsuits aimed at editorials, or at op-ed and other opinion articles, I have discovered that judges readily understand that, in context, these sites are forums for the statement of broad themes about politics, society, and life, and have been responsive to motions to dismiss claims even before any evidence is offered by either side.

Breathing space for expression

This "marketplace" concept was reiterated by Justice Lewis F. Powell Jr. in the Gertz case in 1974: "Under the First Amendment there is no such thing as a false idea," and thus, "however pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." Over the past several decades, many courts have protected opinions and ideas by defending the "breathing space" that freedom of expression requires to survive and in recognizing a societal interest in "uninhibited, robust, and wide-open" debate on public issues. This expectation is enshrined by several dozen states in their own constitutions, when they declare repeatedly that "every person may freely speak, write and publish on all subjects...."

This concept is so strong, and so deeply rooted, that the Supreme Court's single misstep in 1990, in the Milkovich case, when some justices retreated from Justice Powell's Gertz dictum and suggested that an opinion piece about a wrestling coach (which the Ohio Supreme Court later confirmed was protected as a matter of law under that state's constitution) could be the subject of a defamation claim, made no impression on existing case law. Judges continued, and continue to this day, to affirm the primacy of opinion and ideas.

While editorial pages daily depend on and indeed thrive on this concept, unquestionably they survive knowing that there's a less romantic side to this equation, which recognizes that there is little or no constitutional value in false statements of fact and that states have an interest in protecting and compensating individuals for harm to reputation from defamatory falsehoods. Aware of both sides of the free speech equation and the very real consequences of errors, editors deftly control their pages, either steering clear of expressions that straddle or fall wholly outside the bounds of protection, or taking their chances with publishing and bracing for the consequences.

Yes, in the marketplace they knew, in the marketplace they were comfortable with, and significantly, in the marketplace they controlled, that was how editors and their newspapers survived.

Negotiating a new world online

In the twenty-first century, editors are negotiating a new online world, where any person with an Internet connection can, as the Supreme Court noted in a 1997 decision, "become a town crier with a voice that resonates farther than it could from any soapbox." This world is the essence, or more properly quintessence, of Justice Holmes's marketplace of ideas--and thus one the courts should want to vigorously defend--while simultaneously being a hotbed for defamatory falsehoods and injury to reputations that is unlikely to be tolerated.

From a legal standpoint, then, how best does one maneuver? Are drastic changes in store? The reality is that basic defamation law, whether through paper or electronic pages, remains the same. (A truly major change is evidenced by Section 230 of the Communications Decency Act, which has freed online journalists from being held liable for statements by letter writers and other outside contributors.) Generally, a defamation plaintiff must prove (1) a false, defamatory, and unprivileged statement of verifiable fact that is (2) "of and concerning" the plaintiff, (3) published by the defendant to a third party without due care or with knowledge of falsity or reckless disregard of the truth, and (4) results in actual injury to the plaintiff.

Will these basic rules remain in place as our brains become increasingly wired? The psychology of the online world was aptly described by Microsoft's Linda Stone a decade ago as "continuous partial attention" where each of us, in the words of a New York Times Magazine writer, is "so busy keeping tabs on everything that we never focus on anything." The psychology of the online world may yield new legal ideas, beyond the historic "marketplace" doctrine.

It is quite possible that increased reader interaction and vastly diminished control over creation of content will require increased vigilance to ensure the marketplace of ideas is not subjected to Gresham's Law ("Bad money drives out good money"), and that editorial pages will position themselves to take advantage of pillar of free speech defenses; i.e., proving truth or substantial truth of content; establishing that statements are pure opinion, or otherwise convincing courts that imaginative expression, exaggeration, humor, and non-literal commentary are not actionable; proving that the plaintiff is libel-proof and incapable of suffering harm from mere words; or as a last resort, being amenable to publishing retractions.

It is likely that the marketplace metaphor will endure, but libel lawsuits will still be brought in an effort to police the distribution of facts rather than ideas.

Bruce Johnson, a partner in the Seattle office of Davis Wright Tremaine LLP, regularly represents the media in defamation and privacy lawsuits. E-mail brucejohnson.@ dwt.com