Protection for grunts, left on the prairie, a write-down in the Soviet Union, and other matters. THE SPEECH MARKET
By DANIEL SELIGMAN REPORTER ASSOCIATE Patty de Llosa

(FORTUNE Magazine) – The present writer was a bit slow off the mark in getting to the great flag- burning row, as it took him a while to research the one assertedly coherent idea he brought to the Supreme Court's decision in Texas v. Johnson. The idea goes back to a reading assignment in high school. It would be mendacious to claim that we were enthralled by the Areopagitica when commanded to read it, but we finally did track our way through it and over the span of a half-century still recall its main point: The core reason for protecting free speech is that, given half a chance, truth will prevail in the marketplace of ideas. ''Let her and falsehood grapple,'' wrote the immortal Milton; ''who ever knew truth put to the worse, in a free and open < encounter?'' A somewhat similar thought was expressed in more contemporary tones by the equally immortal Oliver Wendell Holmes, whose case for free speech begins by celebrating (in a 1919 dissent in Abrams v. United States) ''free trade in ideas'' and arguing that ''the best test of truth is the power of the thought to get itself accepted in the competition of the market.'' Okay, it is possible, and especially for neoconservatives, to acknowledge that truth has taken many a shellacking in its day. But of all the rationales put forward for protecting speech, it seems hard to beat the one that emphasizes competition in a metaphorical marketplace of ideas. A lot of people, we discovered in our researches, do not like the metaphor. Harvard law school professor Laurence Tribe is the author of a formidable textbook, American Constitutional Law, that is definitely unfriendly to the marketplace rationale. Tribe seems bothered by the limitations it implies, the main one being that in order to get protection for your ideas, you have to have some ideas. Burning a flag to express rage just might not qualify. Tribe much prefers a rationale in which the ''expression of self'' and ''a cry of impulse'' get just as much constitutional protection as any ''contribution to intellectual dialogue.'' The prof is obviously and unfortunately in the majority on this issue. This is why First Amendment protection is granted nowadays not only to banner burners but also to nude go- go dancers -- that is right, they are expressing themselves -- and numerous weirdos in between. Of all the Supremes, Chief Justice Rehnquist is the one who has come closest to pushing the marketplace rationale -- and to restricting speech that does not qualify as dialogue. In Texas v. Johnson, Rehnquist's dissent came down hard on the thought that flag-burning is not expressing ideas, and is the equivalent of an ''inarticulate grunt.'' It is unclear, however, whether the Chief meant to state firmly that the Court should cease protecting grunts. The weirdos will be around awhile.