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Also checkout: Facts, Opinions, and Folklore: A Preliminary Taxonomy
Research findings on the topics of:
- Marketplace of Ideas
- Facts, Opinions, and Folklore
1. THE FACT/OPINION DISTINCTION: AN ANALYSIS OF THE SUBJECTIVITY OF LANGUAGE AND LAW
• The first, commonly associated with John Stuart Mill, 8 is that one receives a clearer perception of truth if it is the result of a “collision with error.”9 One can never be sure that an opinion which we seek to suppress is false.’0 To assume otherwise is to assume infallibility.” Hence, an individual who seeks truth must consider opposing opinions to sift the true from the false.'” The collision of adverse opinions is necessary in the search for truth.13
• These are the premises of the marketplace theory, in which the “consuming public in the marketplace of ideas,”19 ultimately determines which beliefs are true.20 Under this theory, “false ideas need not be suppressed, for the operation of the market ultimately will reject ideas that are in fact false.” 21
2. INSTITUTIONS IN THE MARKETPLACE OF IDEAS
• This Article brings them together, using the New Institutional Economics to describe the “speech institutions”—such as schools and universities—that play the same cost-reducing role in the marketplace of ideas as other institutions do in the market for goods and services.
• The market is an imperfect and frequently malfunctioning machine, and the costs of exchange add friction to its gears. This friction, which economists call “transaction costs,” includes the time and expenditure needed to find, evaluate, and obtain good ideas or products.9 And although Holmes’s metaphor does not account for them, these costs exist in the marketplace of ideas just as surely as they do in the economic market.
3. Abrams v. United States, 250 U.S. 616 (1919)
• [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct 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 their wishes safely can be carried out.
4. R.H. Coase, Advertising and Free Speech, 6 J. LEGAL STUD. 1, 27 (1977)
• “The rationale of the First Amendment is that only if an idea is subject to competition in the marketplace can it be discovered (through acceptance or rejection) whether it is false or not.”.
• Free speech, in Holmes’s framework, is worthy of constitutional protection precisely because—like the free flow of goods and services—it creates a competitive environment in which good ideas flourish and bad ideas fail.
5. The Fact/Opinion Distinction: An Analysis of the Subjectivity of Language and Law
• The collision of adverse opinions is necessary in the search for truth.13
• These are the premises of the marketplace theory, in which the “consuming public in the marketplace of ideas,”19 ultimately determines which beliefs are true.20 Under this theory, “false ideas need not be suppressed, for the operation of the market ultimately will reject ideas that are in fact false.” 21
• Under the First Amendment there is no such thing as a false idea. 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.
• The inherent indeterminacy of words makes any distinction between fact and opinion a subjective determination.
6. The taxonomy of evidence: experts, facts, opinions and the courts
• Opinion evidence is ordinarily inadmissible, but there is an exception when the person giving their opinion is an “expert”. An expert can give evidence of fact like anyone else, the only restriction being its relevance. A forensic pathologist (to use an example of Master Matthews) may give evidence about what they saw when they performed a post-mortem: blood here, lacerations there, discolouration everywhere. No permission is necessary for that sort of evidence. What they cannot give without permission is their expert opinion on the cause of death, for example (albeit the court may give permission because the expert, unlike most of us, has some useful qualification in doing so).
• Scots law identifies a third category of evidence which, we learn from Kennedy, requires a ruling as to admissibility. That is factual evidence, given by an expert, but which draws on their specialist knowledge or experience.
7. The Fact/Opinion Distinction: An Analysis of the Subjectivity of Language and Law
• Indeed, “[m]ost speech will contain some elements of fact, some of inference, some of emotion, and some of value judgment.’7 1 For example, assume a person observes a fellow classmate reading late on a Friday evening. The person then makes the statement, “John Doe is a diligent student.” This statement is neither purely fact nor purely opinion. The fact that the student was reading late on a Friday evening may be verified. However, the person has inferred from the fact of reading that the student was studying. The statement now includes some degree of opinion or belief. The student, in fact, could have been reading the latest science fiction best seller merely for pleasure. The statement may also reflect the person’s emotions toward, and judgments of, that student. Rather than characterizing the student as diligent, the observer could have described the student as “an egghead.” Both statements would have originated from the same verifiable fact of reading, however, both are inseparable from the observer’s opinion of that student.
Hyperonomy Digital Identity Lab™ - hyperonomy.com 