Free Speech, Free Markets & the Death of Trademark Law
| Published date | 01 July 2018 |
| DOI | 10.1177/2277401718787941 |
| Date | 01 July 2018 |
| Subject Matter | Articles |
Free Speech, Free
Markets & the Death
of Trademark Law
Shubha Ghosh1
Abstract
Building on a public address given at NLU-Delhi in May, 2016, this Article examines
the question of the relationship between economic liberalism and democracy. Is it
a contradiction, or even a matter of concern, for a society to have free speech but
not free markets, as Ronald Coase suggested? The Article resolves the tension
through a consideration of the two different meanings of freedom and the differing,
even if overlapping, goals of markets and politics. The ongoing debate over free
expression and trademarks serves to anchor the argument with the main conclu-
sion that commercial speech offers a unique example for economic liberalism and
democracy, one that is distinct from the need for a multiplicity of viewpoints in the
marketplace for ideas. The Article examines these ideas both in current United
States Supreme Court jurisprudence and in global debates.
Keywords
Freedom of expression, Trademarks, Intellectual Property, Commerce, Economics
Introduction
Liberalisation of markets is often discussed in the same breath as the opening of
media, individual expression, elements of democratic civic and political culture.1
In recent years, with Brexit, the rise of Trump, and the success of China, there has been
a turn to authoritarianism which is more attuned to free markets than democracy.2 This
Article, based on a talk given at the National Law University, Delhi, in May, 2016,3
1
Milton Friedman, Capitalism and Freedom (University of Chicago Press 2002) 15.
2
Ronald Coase & Ning Wang, How China Became Capitalist (Palgrave Macmillan 2012).
3 Shubha Ghosh, ‘Free Speech and free markets’
accessed 25th May 2018.
Article
Journal of National
Law University Delhi
5(1) 61–77
2018 National Law
University Delhi
SAGE Publications
sagepub.in/home.nav
DOI: 10.1177/2277401718787941
http://journals.sagepub.com/home/jnl
1
Crandall Melvin Professor of Law; Director, IP & Technology Commercialization Program; Syracuse
Intellectual Property Law Institute, Syracuse University College of Law, Syracuse, NY.
Corresponding author:
Shubha Ghosh, Director, Syracuse Intellectual Property Law Institute (SIPLI), Syracuse University College
of Law, Syracuse, NY.
E-mail: sghosh01@law.syr.edu
62 Journal of National Law University Delhi 5(1)
explores this turn and recasts the connection between free markets and free speech.
The underlying message is to be skeptical of the siren call of authoritarianism.
What unifies the ideals of free speech and free markets is the notion of exchange.
Free speech entails the exchange of the expression of ideas in various forms, oral,
written, visual, musical. Free markets, of course, is about the exchange of goods and
services. However, exchange has very different manifestations when one speaks of
free speech and free markets. Exchange in the latter is price-based and guided by
property and contract law. In the former, social and cultural norms can be more salient
than formal law. In this Article, I examine the connection between free speech and
free markets in an ongoing debate over trademark law.
The title of this Article echoes Ronald Coase’s essay on the market for ideas and
the market for goods, published in 1974.4 In that essay, Coase asked why left-liberals,
at least in the 1960’s and 1970’s, wanted a laissez-faire market for speech but
supported a regulated market for goods. Ideas, according to Coase, were just
another type of commodity and the distrust of markets for goods would map onto
a similar distrust of markets for ideas. Revisiting this argument today leaves much
to wonder about the dichotomy Coase created.
In the United States, left-liberals have shifted and seek regulation of the market-
place of ideas, especially of hate speech, while those who advance a neoliberal
agenda demonstrate a greater faith in the marketplace for goods. This shift illuminates
a fundamental flaw in Coase’s analysis. Notions of laissez-faire and regulated markets
rest upon baseline assumptions about exchange, the manner in which it occurs,
and the harms it may result in. The freedom of an unfettered marketplace of ideas
challenges political and social orthodoxy which can harm certain minority
groups and viewpoints. Regulation of the marketplace of goods follows from
concerns with the price mechanism in internalising third party harms and in
furthering inequalities in the distribution of resources. ‘Free’ and ‘regulated’ have
no meaning in the abstract; they are contextual to institutional factors, including
the political and economic concerns of the present. Trademark law provides a case
study for these points with its mix of commercial and creative speech designed to
provide information to consumers in the marketplace for goods and services.
Coase’s ideas and criticisms, are relevant beyond the United States. Scholar
Gautam Bhatia, in his exegesis on the right of free expression in India, rests on the
importance of free speech to economic democracy.5 Building on the work of United
States legal scholars, Dr. Bhatia identifies several dimensions to economic democ-
racy: deliberative democracy, cultural democracy, and political democracy. Free
expression jurisprudence in India, despite its roots in economic democracy, is pulled
towards defending the state in preventing speech that is subversive to government.
In Bhatia’s terms, Coase is making a case for free markets based on free expression,
a democratic liberalisation of regulated markets. However, Coase’s argument sets
aside the democratic goals of free expression in supporting deliberation and cultural
expression. If free markets result in a concentration of wealth, one may be concerned
that free markets can undermine free expression. Because of this dynamic, we should
4 Ronald Coase, ‘The Market for Goods and the Market for Ideas’, 64(2) American Economic Review
384-391 (1974).
5 Gautam Bhatia, Offend, Shock, or Disturb (OUP 2016).
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