Retail Jurisprudence:

The Judge as Entrepreneur in the Marketplace of Ideas

Cynthia L. Catest Wayne V. Mclntoshtt

he best test of truth is the power of the thought to get itself accepted in the competition of the market....

-Abrams v. United States, 250 U.S 616, 630 (1919)

(Holmes, J., dissenting).

INTRODUCTION

Oliver Wendell Holmes' simple metaphor of a "marketplace of ideas" created the enduring image of ideological goods vying for supremacy in a democratic marketplace. As in perfect commercial competition, the public purchases the valuable concepts, rejects the ill-conceived, and demands constant cultivation of both. In this way, the free market yields valuable ideas and, ultimately, truth. According to Holmes, this metaphorical scenario embodies "the sweeping command" of the First Amendment.1

While Holmes' Abrams dissent arguably represents both the most eloquent of judicial statements and the most succinct assertion of grand jurisprudence, it noticeably and rather ironically neglects a key element of the economic allegory it embraces-the role of the entrepreneur. The hapless revolutionary Jacob Abrams suggests the role an "idea entrepre neur" might play, and the risks he might incur. But the doctrine which Holmes propounds in a single very "impressive" paragraph concerns the interplay of markets, goods, and consumption. 2 Holmes' summary train of discourse addresses the movement of ideas, rather than the movers. He

t Assistant Professor of Political Science, Towson