Derridean Diagnosis of Marketplace Ills: Curing Schizophrenia and Amnesia in the First Amendment Search for Truth

I. INTRODUCTION Among the arguments offered in support of protecting freedom of speech, the truth-based rationale has reigned supreme.1 This rationale, which has the discovery of truth as its ultimate aim, proposes two guidelines: (1) that no government is in a position to make speech regulations because it is not, at present, able to distinguish a true idea from a false idea, and (2) that when ideas are given free rein to compete with each other in the marketplace, the truth will eventually emerge victorious. In other words, the rationale defers judgments about truth on the premise that the market will inevitably reveal what the truth is. The truth-based rationale is thus an ends-focused theory - one that justifies itself by the end it promises. Along the way, a host of offensive speech - racism, hate, and obscenity - is permitted because the truth is worth die cost (and the cost is die unrestrained competition of ideas, some of which will be offensive). Undoubtedly this rationale has been highly influential in the Supreme Court's First Amendment jurisprudence.2 And, boasting the support of such thinkers as John Milton,3 John Stuart Mill,4 and Oliver Wendell Holmes,5 the rationale is certainly hard to gainsay within the broader Western tradition. Despite the popularity of the approach, however, this Comment posits that the truth-based rationale is inherently flawed. The rationale pushes truth away into the future based on a skepticism about man's ability to make accurate judgments, and it invites truth into the present based on the premise that it is only a matter of time until, in the battle of ideas, truth emerges victorious. This creates a kind of schizophrenia in the First Amendment - commanding deferral while encouraging action. As a result, the market either produces truth in the present that is not truth at all, or it banishes truth to a future that will never come. To ease the tension between these conflicting dictates of a truth-based approach, this Comment suggests that the marketplace theory should be recast to highlight the value of its means rather than the ends it may produce. The deferral principle requires that judgment be withheld in the present. Because the premise is based on a skeptical view of human ability to discover objective truth, truth cannot come until humans change radically. Thus the rationale commands deferral of truthjudgments to an incalculable future - a future dependent on an exponential increase in human rationality, the coming of a Messiah, or some other transcendental event that would endow humans with the ability to recognize truth objectively. But if such an event occurred, it would change the nature of human existence and the need for law. In sum, the truth-based rationale suggests postponing speech regulation until a time when that regulation would no longer even be necessary. But in this human world as we know it - the time and place where speech regulation is required - the truth would never be available. Reduced to this useless state, the principle of infinite deferral has produced no shortage of critics.6 "No amount of waiting will get us any closer to the truth" is the basic premise of these critics, and, in the meantime, people are suffering real harm - subjected to hateful, obscene, or racist speech - in the name of a "bodiless hope."7 The supposedly temporary unpleasantness of the path to truth is, it seems, a permanent state of affairs. On the other hand, the premise of inevitable revelation poses its own set of problems. The truth is required now - in the present, where people need guidance. Thus, the second guiding principle of the truth-based approach promises and even produces "truth" in the present.8 But this movement from deferral to revelation involves a moment of amnesia. It is not possible without a willful forgetting of the premise undergirding the deferral principle - that truth is not available except in the future that never comes. …