Justice Frankfurter's Contextual Marketplace

Abstract

Justice Frankfurter is not known for foundational First Amendment opinions, like his mentors, Justices Holmes and Brandeis. He also is not known for helping to lay the groundwork for the modern First Amendment, like his rivals and contemporaries on the Court, Justices Black and Douglas. His lengthy, complex, and nuanced free-expression opinions, however, provide an alternative theoretical framework for how the marketplace of ideas can be conceptualized in the networked era. Drawing from his opinions, this article examines the historical development of marketplace theory, contending the theory has never had a monolithic meaning, and analyzes Justice Frankfurter’s First Amendment opinions, ultimately constructing the contextual marketplace. The contextual approach provides a more inclusive, malleable, and protective foundation for the marketplace in the twenty-first century, finding substantial support from Justices Holmes’s and Brandeis’s writings, modern Supreme Court decisions, and legal scholarship.