Defamation, Libel Tourism and the SPEECH Act of 2010: The First ...

easily contributes to instrumental theories. In the first half of the twentieth century, US Supreme Court Justices Oliver Wendell Holmes and Louis Brandeis adapted Mill’s theory into more contemporary language and spoke in terms that free speech was desirable because it fostered a marketplace of ideas.¹⁹ This very well-known presentation clearly falls within the concept of instrumental free speech because the marketplace of ideas was intended to lead to good choices and sound decisions being made by individuals and society as a whole. The Holmes/Brandeis formulation is not so much a new theory as a new expression or rationale as to why free speech will lead to discovery of the truth.²⁰ In his dissent in Abrams v. US, Justice Holmes, joined by Justice Brandeis, objected to the majority decision upholding a criminal conviction for seditious libel.²¹ In a very real sense, Holmes converted Mill’s political theory into legal doctrine in his famous dissent:²²

Subsequently, in Gitlow v. New York, Holmes persuaded an extremely conservative Supreme Court to make freedom of speech as guaranteed by the First Amendment applicable to the states as well as the federal government.²⁴ Holmes made the then ingenious argument that the Fourteenth Amendment’s guarantee that no state would deprive citizens of life, liberty, or property without due process of law should apply to the First Amendment. The adoption of this novel idea ultimately became a mainstay in twentieth-century Supreme Court jurisprudence and without this interpretation of the Fourteenth Amendment, the Supreme Court would not have had jurisdiction in leading cases such as New York Times v. Sullivan.²⁵ In this respect, the Gitlow decision is at least as significant as New York Times. In the case of suppression of speech