The First Amendment and the Marketplace of Ideas

By Justin T. Kelton, Esq.

As a media lawyer and fan of the WestView News, I appreciate this publication’s willingness to tackle contentious issues. But even the most well-intentioned publishing decisions can spark conflict. Indeed, WestView recently found itself embroiled in controversy relating to a breakaway competitor, and I contributed an opinion piece to last month’s issue advocating for WestView and sharing my opinions on the matter. As it turns out, my opinion piece has itself become the subject of some controversy. These recent events prompted WestView to ask me to explain the First Amendment right to hear provocative speech.

The First Amendment to the United States Constitution guarantees freedom of speech, religion, press, assembly, and petition. One of the most important aspects of the First Amendment is the protection of free speech, which includes both the right to express polarizing opinions and the right to hear them. Indeed, the Supreme Court has recognized that the First Amendment includes the right to hear unpopular speech, stating in First Nat. Bank of Boston v. Bellotti that “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw.”

The right to free speech includes the right to offend, shock, and criticize others. While it may be uncomfortable to hear opinions that differ from our own, it is important to allow dissenting voices to be heard and considered. Doing so can foster a more inclusive and diverse society where voices are valued and represented. By fostering open and honest debate, the right to hear contentious discourse about sensitive topics provides a check against tyranny and oppression. Robust public debate creates a marketplace of ideas, where the best arguments and most persuasive viewpoints rise to the top.

The right to hear unpopular speech is essential for protecting minority viewpoints. Without protection of all perspectives (including ones that may be challenging), we risk creating an echo chamber where only the dominant opinions are heard, and minority viewpoints are suppressed. But when the minority has the right to speak and be heard, it can defend its position and perhaps gain support if warranted. At the very least, the right to hear unpopular speech ensures that the public has access to a diverse range of viewpoints, and can make informed decisions based on multiple perspectives.

While the right to engage in and hear unpopular speech is essential to the functioning of our democracy, there are of course limits to speech. One such limit is defamation, which occurs when a speaker makes a false statement of fact (rather than an opinion) that harms the subject in some appreciable way, and is made with fault or “malice.” I practice in this area and have experience both bringing and defending lawsuits involving defamation claims. But no matter the case, one constant remains: opinion-based speech—such as argument about whether someone’s conduct was appropriate—is absolutely protected. This protection includes the right of readers to hear such an argument and decide for themselves whether they agree.

Ultimately, the right to hear unpopular speech is essential to the functioning of a true democracy. It allows for the free exchange of ideas, protects minority viewpoints, and guards against censorship. It is important to challenge and critique opposing views, and it is equally important to allow those views to be heard and considered. By doing so, we can foster a more open and inclusive society where all voices are valued. As Justice Louis Brandeis famously wrote, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

Justin T. Kelton is a partner and Co-Chair of the Litigation Department at Abrams Fensterman, LLP. His practice focuses on media law, First Amendment issues, and complex commercial litigation. He can be reached at 718-215-5300 or This article represents Mr. Kelton’s personal opinions only, and does not constitute legal advice.

1 thought on “The First Amendment and the Marketplace of Ideas

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      Hello Justin Kelton! I read your article, and was just so curious as to why the attorney suing the paper is never mentioned! I am pretty sure I know who he is, and I had a bad experience with him too! (After 26 years). If you can, please send me an e-mail. Thanks!

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