SILHA
THE FIRST AMENDMENT AND DIVERSITY: A MARKETPLACE FAILURE
The 36th Annual Silha Lecture focused on the current state of the First Amendment Marketplace of Ideas theory amidst political, economic, social and technological changes. BY SCOTT MEMMEL
ON OCT. 26, 2021, S. JENELL TRIGG, the chair of
Washington, D.C.–based law firm Lerman Senter PLLC’s Privacy, Data Security and E-Commerce practice, argued during the 36th Annual Silha Lecture that “we are currently in a debate regarding the importance and value of free speech and protecting democracy. Some say there is no democracy without free speech, but after the 2020 presidential election, the insurrection on the nation’s Capitol, and recent developments, some too close to home, I’m not sure anymore…. I’ve started to question whether the longstanding theory of marketplace of ideas is still relevant in today’s digital age.” Approximately 150 attendees from throughout the United States and abroad attended Trigg’s virtual lecture, “The First Amendment and Diversity: A Marketplace Failure.” Articulated by John Milton, John Stuart Mill, Justice Oliver Wendell Holmes and others, the “marketplace of ideas” theory posits that ideas and arguments should be allowed to compete in a free market, where, hopefully, truth and “good” speech prevail. In Abrams v. United States (1919), Justice Holmes contended that “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [people’s] wishes safely can be carried out. That at any rate is the theory of our Constitution.” Trigg’s background includes her experiences as a broadcast television sales and marketing executive at several major market television stations and at the Federal Communications Commission (FCC), where she served on the staffs of two Commissioners and at the FCC Bureau/Office level. Trigg emphasized that she is “a strong supporter of 20
MURPHY REPORTER ❙ Winter 2022
the First Amendment” and that she “fully understand[s] the First Amendment was designed not to protect the speech we like, but to protect the speech we don’t.” Trigg also noted that she is “a longstanding supporter of diversity... particularly diversity in the media,” which was one of the main reasons she went to law school at The Catholic University of America, Columbus School of Law. Trigg said, “I believe that there is a strong correlation between diversity in the media, the First Amendment, and today’s state of the marketplace of ideas as it exists or not.” Second, Trigg noted growing concerns about the future of the news media, including “increasing threats and attacks [against] journalists and media around the world.” Such threats and attacks come in many forms, according to Trigg, including verbal threats, physical assaults, arrests and criminal investigations, “fake news” statutes and regulations, access rights to information, and civil challenges. Third, Trigg discussed three “influential developments” that “have changed our consumption of news, as well as our trust in the news and media industry and, therefore, have impacted the marketplace of ideas.” Citing the “consolidation of news and information sources,” she noted how the number of sources of news and information has expanded significantly since 1981, including the introduction of cable news, streaming video services, search engines, social media platforms and much more. However, Trigg contended that at the same time, ownership is now consolidated, citing the statistic that in 1983, 50 companies owned 90 percent of media outlets. In 2021, eight companies own 90 percent of media organizations. “Although there are considerably more sources for news and information than ever before, there are less owners, less truly independent and antagonistic voices and, therefore, less diverse viewpoints. This is a natural consequence of [media] consolidation,” she said. Trigg added that other developments only further undermine the marketplace of ideas, including the blurring of facts and opinion. She said, “There used to be a time when it was forbidden to mix opinion and news. Decades ago, you could clearly delineate the difference between
