What Up Holmes?

Love it or hate it, the freedom to say obnoxious and subversive things is the quintessence of what makes America America. But our say-almost-anything approach to free speech is actually relatively recent, and you can trace it back to one guy: a Supreme Court justice named Oliver Wendell Holmes. Even weirder, you can trace it back to one seemingly ordinary eight-month period in Holmes’s life when he seems to have done a logical U-turn on what should be say-able. Why he changed his mind during those eight months is one of the greatest mysteries in the history of the Supreme Court. (Spoiler: the answer involves anarchists, a house of truth, and a cry for help from a dear friend.) Join us in an episode we originally released in 2021, as we investigate why he changed his mind, how that made the country change its mind, and whether it’s now time to change our minds again. Special thanks to Jenny Lawton, Soren Shade, Kelsey Padgett, Mahyad Tousi and Soroush Vosughi. LATERAL CUTS:Content WarningFacebook Supreme CourtThe Trust EngineersEPISODE CREDITS: Reported by - Latif NasserProduced by - Sarah Qariwith help from - Anisa Vietze Signup for our newsletter!! It includes short essays, recommendations, and details about other ways to interact with the show. Sign up (https://radiolab.org/newsletter)! Radiolab is supported by listeners like you. Support Radiolab by becoming a member of The Lab (https://members.radiolab.org/) today. Follow our show on Instagram, Twitter and Facebook @radiolab, and share your thoughts with us by emailing [email protected]. Leadership support for Radiolab’s science programming is provided by the Simons Foundation and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.

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  WNYC supporters include Livrite, publishers of John U. Bacon's New York Times bestseller, "The Gales of November", a chronicle of the S.S. Edmund Fitzgerald's 1975 shipwreck. "Never has it been told better than by Mr. Bacon in this colorful book", writes John J. Miller of The Wall Street Journal, while author Hampton Sides proclaims that it's destined to be a classic. "The Gales of November", now in paperback.

• 0:25Speaker 01

  Yeah, wait, you're listening. Okay. All right. Okay. All right. You're listening to Radio Lab. Radio Lab.

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  From?

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  WNYC.

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  See?

• 0:38Speaker 01

  Yep.

• 0:39Speaker 02

  Rewind.

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  Hey, it's Latif. This is Radio Lab. So just last week, here on the show, we had a conversation between our own Simon Adler and law professor Kate Klonick, talking about how the idea of free speech in this country is playing out and often not playing out online right now. But these questions of free speech in the United States go back, literally, to the beginning. It's the First Amendment, for crying out loud. And as we argue over what people should be seeing on these apps, on social media apps, it took me back to a story we did a couple of years ago that feels like it gets to

• 1:29Speaker 02

  the origin of the modern notion of free speech, in particular, the idea that there should be an open marketplace of ideas, right? That's the reason any of these social media platforms are allowed to be as wild as they are, because they are theoretically open marketplaces of ideas. And as I told our then-host, Jad Abumrad, surprisingly, that whole idea of the marketplace of ideas came from one moment, and even more surprisingly, from one guy.

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  Oliver Wendell Holmes.

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  Magnificent is the word for Oliver Wendell Holmes.

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  Regarded today as the greatest Supreme Court Justice in our history.

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  That story was told to me by this guy, Thomas Healy.

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  Professor of law at Seton Hall University School of Law.

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  Who wrote a book about Oliver Wendell Holmes.

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  He essentially laid the groundwork for our modern understanding of free speech.

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  And, you know, Holmes, he's from this wealthy Boston family, fought in the Civil War on the Union side. And by the time he's sitting on the Supreme Court, he's in his 70s and sort of an imposing figure.

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  Piercing blue eyes. He had this sort of shock of very thick white hair on his head.

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  Mustache, right? He has a great mustache.

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  Yes.

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  Great mustache.

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  That expanded out past the edges of his face.

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  But the most important thing to know about Oliver Wendell Holmes is that he was stridently anti-free speech as we know it today. Until he changed his mind. Huh. And it happened, that switch happened at a very particular moment in his life. So 1917, World War I is happening.

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  And in Washington, the draft is invoked. President Wilson draws the first number.

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  And...

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  Congress was worried that if people criticized the draft, then they wouldn't be able to raise an army.

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  Congress passed something called the Espionage Act.

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  Made it a crime to say things that might obstruct the war effort.

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  Part of it had to do with spy stuff, but there was another part that made it a crime to say things.

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  Anything that was critical of the form of the United States government or of the president, anything that was disloyal or scurrilous.

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  Which covered pretty much everything.

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  It made it a crime to have a conversation about whether the draft was a good idea, about whether the war was a good idea.

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  And so all of a sudden, people were getting thrown in jail.

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  People who forwarded chain letters that were critical of the war.

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  People who gave speeches against the... Draft.

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  Or people who said that the war was being fought to line the pockets of JP Morgan.

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  And several of these cases actually made it all the way up to the Supreme Court. So in March 1919, three different cases come up in quick succession. Schenck versus the United States, Frohwerk versus the United States, Debs versus the United States.

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  And the court upheld these convictions.

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  Saying First Amendment does not apply here. Like Espionage Act, lock these people up. And Holmes, in all three of these cases, he actually writes the majority opinions.

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  They're pretty dismissive of free speech.

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  Hmm. Like, look, we are in the middle of a war. You cannot.

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  Shut your damn mouth.

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  Joke around, shut your mouth, otherwise you're going to prison.

• 4:56Speaker 01

  Absolutely, yeah. He saw a sign that said, "Damn a man who ain't for his country, right or wrong." And he wrote to a friend and said, "I agree with that wholeheartedly."

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  It's like his bumper sticker.

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  Exactly.

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  Now, Holmes had his reasons for believing that. A lot of them going back to his experiences fighting in the Civil War.

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  That experience, that had a huge effect on him.

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  Like, he had these kind of two complicated feelings about it. One was that it was a war to end slavery. It was a righteous war, but at the same time, it was a brutal and barbaric fight.

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  You know, he watched a lot of his young friends die.

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  He almost died himself.

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  He felt like he was an accidental survivor. He was part of the 20th Massachusetts Regiment. And at Gettysburg, the vast majority of the officers in his regiment were killed.

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  It was so devastating. For him, it was unforgettable. Sort of forged him and made him who he was and really influenced the way he thought about the world. I mean, the war was like 50 years earlier, but he was still thinking about it. He still had his uniform hanging up in his closet and it was still stained with his blood. And so when World War I was happening.

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  When people were out on the battlefield risking their life, it wasn't too much to ask people at home to support that.

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  His argument was basically that the good of the country mattered more than one person's right to say what they want.

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  He made the analogy to vaccination. If there's an epidemic.

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  Which, for them, like us, was probably top of mind because the Spanish flu had just happened.

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  And you think that vaccination might stop the epidemic. You force people to get vaccinated against their will. You infringe on their liberty and you force them to get vaccinated.

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  For the greater good.

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  For the greater good. And he thought the same thing applied when it came to speech.

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  Later on in his career, Oliver Wendell Holmes took this same argument to a pretty disturbing place, using it to support the practice of forced sterilization in Buck v. Bell. We actually did a whole episode about that case. But going back to speech, these three cases come to the Supreme Court. That's in March 1919, right? Then, for some reason, eight months later, in November, there's another case, the Abrams case, very similar circumstances of the case, and he switches sides. Almost all the other justices are still agreeing with the conviction, but he writes a dissent.

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  Right.

• 7:32Speaker 02

  So here, so here's a quote, "We should be eternally vigilant against attempts to check the expression of opinions that we loathe." And you're like, wait, that's the, you're the same guy that nine months ago was like, lock up everybody? Had he said this sort of thing ever?

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  No, this is, no, he hadn't.

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  What happened?

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  Right, exactly.

• 7:52Speaker 01

  Why did he change his mind between the Debs case in March and the Abrams case in November?

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  Why would this nearly 80-year-old heterosexual cisgender, white, privileged, powerful, wealthy man, like, what made him, in those eight months, change his mind so radically, so quickly?

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  Right, right.

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  So really, the question is, if you boil it down into three words, the three words are, what up, Holmes?

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  You're so ridiculous. So, in a way, it's like, it's a mystery of one man, but it's, it's a mystery that has this ripple effect into kind of the, the, what is now perceived to be like the quintessential freedom in, in the land of the free. Because that dissent, that argument he made after he changed his mind, it's the reason why people like Healy say that Holmes-

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  Laid the groundwork for our modern understanding of free speech.

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  So this 180 in Holmes's head over the course of eight months, this is one of the biggest mysteries in the history of the Supreme Court. And Healey gets obsessed with this very specific question. Like, why did Holmes change his mind?

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  Yeah, absolutely. And I basically tried to reconstruct every day in his life for about a year and a half time period. You're laughing, but I did. I had a spreadsheet with every day.

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  In this spreadsheet, Healey tracked each of those days in that year and a half, around those eight months, right? And he microscopically pours over Holmes's life, including what Holmes was doing.

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  And the letters he was writing, the books he was reading. He kept a log of every book that he read.

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  Wow. He even reads the books that Holmes's friends are writing and reading just in case they had a conversation with Holmes.

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  That's great.

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  And like what possibly they could have said to Holmes that would have made him change his mind.

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  Wow. So did he find something? Was there like a little smoking gun or something buried in all of that data?

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  Well, one thing he notices as he's digging into the daily doings of Oliver Wendell Holmes is that-

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  He became very close with a group of young progressive intellectuals in Washington DC.

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  He had a group of very young friends, these brilliant progressive legal scholars. Among them was future Supreme Court Justice-

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  Felix Frankfurter.

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  The editors of the New Republic magazine.

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  Herbert Crowley and Walter Lippman.

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  This young socialist named Harold Blasky, who at the age of 24 was already teaching at Harvard. And this group, they all-

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  Gathered in this house in Washington DC called the House of Truth.

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  The House of Truth, wow.

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  The House of Truth.

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  It was a townhouse, like a little like clubhouse for like young progressives.

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  And Holmes was a frequent visitor there. He would stop in on his way home from court and have a drink.

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  And he would like play cards with them.

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  And debate truth with them.

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  So it's like a kind of a funny pairing, like this nearly 80-year-old guy like hanging out with these like young whippersnapper 20-somethings and like, yeah, just like laying down truth bombs.

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  Holmes loved to talk to people. He loved to be challenged. He loved debate.

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  And as he got older, he found himself not really having anyone to do that with anymore. Like, the sort of intellectual friends that he had, who were his contemporaries.

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  Those people were all dead by this point. Holmes was, Holmes was pretty old.

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  The other members of the Supreme Court, he didn't really care for.

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  He thought that they were all sort of stodgy and he didn't think that they were that smart.

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  Funny daddies.

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  Yeah. And, and all of these young men, they worshipped Holmes.

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  They would write him fan letters and they would write articles about him in magazines.

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  And so he sort of found a new group of friends.

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  They actually, they got so close that when it was Holmes's surprise 75th birthday party, his wife Fanny snuck a bunch of them in through the cellar for the, for the birthday party.

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  And, and he felt like some of these young men were the sons that he never had. You know, he would write letters to them and he would call them, "My dear boy, my dear lads."

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  And they'd write letters back to him, saying stuff like-

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  "Yours affectionately," or "Yours always," and they would talk about how much they loved him.

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  How did they feel about his stance-

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  Okay.

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  -on the libelous speech stuff?

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  Great question. They were not fans.

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  This group essentially engaged in a kind of lobbying campaign over the course of-

• 12:35Speaker 02

  Really?

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  -a year, year and a half to get Holmes to change his views about free speech.

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  So in May of that year, so remember March is when he has those first opinions. In May, they publish an article in The New Republic-

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  Criticizing his opinion in the Debs case.

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  Which, again, was one of those earlier three cases. So they're knocking him publicly.

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  And Holmes was so worked up by it that he sat down and he wrote a letter-

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  Kind of in a huff.

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  -to the editor of The New Republic, defending himself.

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  Essentially saying, you know, again, "Look, there were lives on the line. There was a war happening, a draft happening." And he's like about to send it to the magazine and then he like pulls back and he's like, "No, no, no, I'm not gonna do it."

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  He thinks maybe it's not such a good idea to be commenting on this issue because he knows that the court has another case coming before it in the fall. The Abrams case.

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  So in October of 1919, this case, the Abrams case, has oral arguments at the Supreme Court. Now, let me kind of hit pause on Holmes for a second and tell you about the Abrams case. So it was a Friday morning in 1918, and some random men who were on their way to work see a bunch of pamphlets on the sidewalk. They were all scattered around, some were in English, some were in Yiddish, because it's like, it's the Lower East Side, so there would have been, at that time, there were like, a lot of Russian Jewish emigres, like, in that area. The pamphlets basically say, "Workers, wake up. The president is shameful, and cowardly, and hypocritical, and a plutocrat, and right now he's fighting Germany, whom we hate.

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  But next, after that, he's gonna go for newly communist Russia, where you guys are from. And so if you don't stop working, especially those of you who are working in factories who are making bullets and bombs..."

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  That these weapons that these people were making were gonna be used to kill their loved ones back home.

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  So... Hmm. Quit it.

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  Go on strike.

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  Some detectives get on the case, they find the culprits...

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  They were Russian immigrants who were anarchists.

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  Three men, one woman.

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  They went on rooftops in Lower Manhattan and threw these leaflets from the rooftops.

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  They're convicted under the Espionage Act. And the case ultimately makes its way to the Supreme Court.

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  In the fall of 1919, eight months after the earlier cases had been handed down by the court.

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  It's a similar case to the ones before, and you'd imagine that Holmes just had that same old argument, like, you know, in his back pocket, ready to go. But Healy discovers that something happens right as the court is considering the Abrams case.

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  Something happened to these young friends, in particular to Lasky and Frankfurter.

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  One of Holmes's young friends, Harold Lasky, who's this socialist 24-year-old teaching at Harvard, he comes out in favor of a citywide police strike. So the police in, uh, in Boston are going on strike.

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  And to the conservative alumni at Harvard, uh, this was just anathema.

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  And so there was this effort at Harvard.

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  To get Lasky fired from his job.

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  There was a fundraising effort going on at Harvard, and a lot of the alums were saying they wouldn't give money as long as Lasky and Frank Futter were there.

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  And he is like, if I had, if only I had a sort of a prominent Harvard alum who could stand up for me right now.

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  And so he goes to Holmes, and he's like, Holmes, they are about to fire me. He's like, please, can you write an article saying that I should be allowed to say this? And in doing so, you will save my job and my reputation, right? So Holmes is in this really tough spot because, on the one hand, should he write this letter, put his neck out? But he's already, as a judge, said the exact opposite. And as a soldier, he believes that, no, like Lasky, shut up. Or should he stay quiet and stay consistent? But then he's gonna let his friend get publicly stoned, basically. So he's in this spot, and well, guess what he does?

• 16:43Speaker 04

  I think I know what he's gonna do. He's gonna write the letter. He's gonna help out Lasky.

• 16:47Speaker 02

  So he does not write the letter.

• 16:49Speaker 04

  No?

• 16:50Speaker 02

  He does not write the letter supporting Lasky, but instead, that same week, he writes this 12-paragraph dissent to the Abrams case. The Abrams case is about a young socialist. Do you know what I mean? Like, it's like, Lasky is this young radical who's getting punished for something he said. And then, at the same time, he has this case in front of him of young radicals who are getting arrested for something they said.

• 17:16Speaker 04

  Oh, wow.

• 17:17Speaker 02

  So he doesn't step in for his friend, but then he does step in for Abrams and company.

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  So seven members of the court voted to uphold the convictions, but Holmes dissented.

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  Here's what he wrote.

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  It's short. It's 12 paragraphs. So the first thing he's saying is that we should be skeptical that we know the truth.

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  "When men have realized that time has upset many fighting faiths..."

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  "We've been wrong before." And we're likely going to be wrong again.

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  That the ultimate good desired is better reached by free trade in ideas.

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  In light of that knowledge, that we may be wrong, the best course of action, the safest course of action, is to go ahead and listen to the ideas on the other side.

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  The best test of truth is the power of the thought to get itself accepted in the competition of the market.

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  Those are the ideas that we can safely act upon. He says, every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge.

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  That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment.

• 18:37Speaker 04

  Wow, that's beautiful.

• 18:38Speaker 02

  Really beautiful.

• 18:39Speaker 04

  Yeah.

• 18:40Speaker 01

  Yeah, absolutely. And the other justices on the Supreme Court, they went to his house and they tried to talk him out of it. And he said, no, it's my duty.

• 18:49Speaker 02

  And over the next decade or so, when other free speech cases come up.

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  Holmes continues to write very eloquent, passionate defenses of free speech. And gradually, the other members of the court start to listen.

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  The great legal journalist Anthony Lewis, this is the way he writes it, "Those dissents, and in particular, the Abrams dissent, quote, 'did in time overturn the old crabbed view of what the First Amendment protects. It was an extraordinary change, really a legal revolution.'" And in particular, it's because he wrapped it in this metaphor

• 19:24Speaker 01

  The marketplace of ideas.

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  That it caught on so quickly and widely. The idea of the marketplace of ideas exploded.

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  The First Amendment was about the marketplace of ideas.

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  Not just in the court.

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  The school is supposed to be the ultimate marketplace of ideas.

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  But also beyond it.

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  The answer is more speech, not less.

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  But as soon as you scratch the surface.

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  That is not how the marketplace of ideas works.

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  And start to think about how the marketplace actually works.

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  No matter how offensive, repugnant, repellent, language or imagery.

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  Like what it lets in the room. You know what we should do with Nazis? We should defend them. Feed them in the marketplace of ideas. Or how you even find it. I don't really know where that is.

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  The metaphor that has propped up our notion of free speech for the last 100 years

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  just starts to fall apart.

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  And we'll get to that right after this break.

• 20:27Speaker 04

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• 22:31Speaker 04

  Chad.

• 22:32Speaker 02

  Love if.

• 22:32Speaker 04

  Radio Lab.

• 22:33Speaker 02

  And we're back freely talking about talking freely. And Oliver Wendell Holmes and the marketplace of ideas.

• 22:42Speaker 04

  And just what a powerful metaphor that has become for us.

• 22:45Speaker 02

  Right. And in a way, I do think that there's something so beautiful about the fact that this came out in a dissenting opinion that his fellow Supreme Court justices tried to quash. That's in a way, it's its own argument. It's like the most persuasive evidence of all for the marketplace of ideas is that if Holmes hadn't himself dissented.

• 23:05Speaker 04

  Exactly.

• 23:05Speaker 02

  We wouldn't have the free speech we have today.

• 23:08Speaker 04

  I love that, what you just said. I think that's beautiful. The way in which his argument won is itself proof of the very thing he's saying.

• 23:16Speaker 02

  Right.

• 23:16Speaker 04

  But the problem with the marketplace of ideas is that it expresses an ideal that is so much more powerful and beautiful than the reality.

• 23:26Speaker 02

  Well, so, so what's interesting is that Holmes's argument, it's a functional argument. It's in the barter, right? In the marketplace that the truth will rise to the top. This will function as a way to sift out the good ideas and the truth. So, so it's actually a measurable thing. Like, we have marketplaces of ideas, like, like Twitter is a marketplace of ideas. Right? Where things get, you know, uh.

• 23:52Speaker 04

  Shouted down and shamed and.

• 23:54Speaker 02

  Shouted down and shamed or spread and, and celebrated. And the amazing thing about Twitter is that you can see that happen. There's, there's real data there about retweets and likes and whatever else that you could actually use it to test Holmes's idea. Like, does the truth, do the good ideas actually rise to the top?

• 24:15Speaker 01

  That's exactly right. I mean, as we started to see fake news. On Twitter and on Facebook, we realized we had the data to study this kind of question.

• 24:26Speaker 02

  So I talked to this data and marketing researcher.

• 24:29Speaker 01

  Sinan Aral, professor, MIT.

• 24:32Speaker 02

  A couple of years ago, he and some of his colleagues at MIT, they took a quantitative look at this exact question, like, how do truths and falsehoods fare in the marketplace of Twitter?

• 24:45Speaker 01

  Every verified story that ever spread on Twitter since its inception in 2006, we captured it.

• 24:53Speaker 02

  They started by gathering up stories from a couple of fact-checking websites.

• 24:56Speaker 01

  Snopes, PolitiFact, Truth or Fiction.

• 24:59Speaker 02

  Factcheck.org.

• 25:01Speaker 01

  Urban Legends, and so on and so forth.

• 25:04Speaker 02

  And they just listed all the stories that those sites had fact-checked, like, about anything.

• 25:08Speaker 01

  Politics, business.

• 25:10Speaker 02

  All kinds of stuff.

• 25:11Speaker 01

  Science, entertainment.

• 25:13Speaker 02

  Natural disasters.

• 25:14Speaker 01

  Terrorism and war.

• 25:16Speaker 02

  And of all the stories they looked at.

• 25:17Speaker 01

  Some were true.

• 25:18Speaker 02

  And some were false.

• 25:19Speaker 01

  Then we went to Twitter.

• 25:21Speaker 02

  And they found, for each story, the first tweet, basically its entry into the marketplace.

• 25:26Speaker 01

  And then we recreated the retweet cascades of these stories, from the origin tweet to all of the retweets that ever happened.

• 25:38Speaker 02

  And so, for each story, they ended up with a diagram that showed how it spread through the Twitterverse.

• 25:45Speaker 02

  And when you look at these diagrams.

• 25:48Speaker 01

  They look like trees spreading out.

• 25:51Speaker 02

  And the height and width of each tree would tell you how far and wide the information spread.

• 25:57Speaker 01

  Some of them are long and stringy, with just one person retweeting at a time. Some of them fan out.

• 26:04Speaker 02

  Tons of people retweeting the original tweet, then tons more people retweeting those retweets.

• 26:10Speaker 01

  Lots of branches.

• 26:11Speaker 02

  On top of that, they could see just how fast the tree grew.

• 26:14Speaker 01

  How many minutes does it take the truth or falsity to get to 100 users, or 1,000 users, or 10,000 users, or 100,000 users?

• 26:23Speaker 02

  And Sinan says that when they analyzed and compared the breadth and the depth and the speed of growth of all those different tree diagrams. What he got was-

• 26:35Speaker 01

  The scariest result that I've ever uncovered since I've been a scientist.

• 26:40Speaker 02

  The trees of lies spread further, wider, and faster than the truth trees.

• 26:46Speaker 01

  It took the truth approximately six times as long as falsity to reach 1,500 people. So falsehood was just blitzing through the Twitter sphere. You know, we're in a state now where the truth is just getting trounced by falsehood at every turn.

• 27:11Speaker 02

  So in this marketplace of ideas, the truth does not rise to the top.

• 27:15Speaker 04

  Well, that does not surprise me, not even a little bit.

• 27:20Speaker 02

  That's part of what we reported back in 2021. And listening back now, the way we were talking about it then feels almost quaint. Now that the platforms themselves have become more political with the rise of better and easier to make deep fakes. And we just had the release of Sora 2. It's like we're in this whole new, more complicated phase of misinformation online. But I do think, even given all of that, this next conversation that I'm about to play for you from the same episode, totally holds up. It reframes the conversation about truth and free speech, which I think is half the battle to finding a way out of this mess.

• 28:04Speaker 05

  Hello.

• 28:05Speaker 02

  Hey. This is my friend Nabeel Hasayed.

• 28:08Speaker 05

  How are you?

• 28:10Speaker 02

  Good. Did this work? And I called her because she knows more about the First Amendment than anyone else I know. She's an award-winning media lawyer and just someone who is really earnestly trying to imagine the best way forward. And I'm the president of The Markup, a nonprofit news organization that investigates big tech. And one of the first things she told me was that one of the problems with the marketplace of ideas is that there's- No reckoning for the fact that some people have bigger platforms than others, meaning their ideas get heard first. Their ideas also get heard more often. Their ideas are also, you know, surrounded by joiners who are like, that idea is popular. I'm gonna join it. And part of it, she was saying like, look, like, as a Muslim woman,

• 28:53Speaker 02

  um, who grew up like right after nine 11. You know, not that all things in the American Muslim experience boil down to a single day in 2001, but to the extent that like the aftermath of nine 11 was formative, it was because I felt like there was all of a sudden a narrative about who I was that was playing out in the media. You know, like, as we all know, it's like Muslim terrorist, blah, blah, blah, blah. That bore no relationship to my Orange County Pakistani, like Kardashian-esque life, right? Like, I just didn't, I was like, who are these people? Who this? And she's like, and I never, my people never got the mic. It's about power. It's about megaphones.

• 29:35Speaker 02

  But here's the thing to remember, like, the marketplace of ideas was one theory, right? It's the, it's the idea that we glommed onto and it's that idea that really took off because a variety of social platforms were like, yep, that's the one. Because it was this sort of idealistic metaphor, but also because it was the most convenient. Laissez faire. Set it and forget it sort of model for free speech, but. It's not the only one. Historically, there have been a bunch of other models and metaphors that, uh, people have used to talk about free speech. Um, some of which take the view, not so much that, you know, argument and dissent lead to truth, but instead, um, that like, there's a truth out there in the world and that people have a right to hear it.

• 30:18Speaker 02

  You should know, is the well in your neighborhood poisoning you? Yes or no? Like, what are the facts that you need to know to live your life and operate in society? That's not a subjective set of opinions. Like, is water poisonous? Yes? Why? And what was interesting to me about this view is, is unlike Holmes's argument, and for that matter, unlike the, you know, attitude of this is America, I can say whatever I want. This view. Conceives of like the rights of a listener, not just the rights of a speaker. The way that we do things now. We focus a lot on who gets to talk, right? If everyone's talking, somehow blah, blah, magic happens. We don't ever talk about the listener. Like, if you're. Listening to all these people talk, do you have a right to accurate information?

• 31:04Speaker 02

  And you see some glimmers of that throughout American history. So for example, in 1949, the government actually set a policy, basically a rule, saying, if you are a news broadcaster. You know, you have to present both sides of an issue. You have to provide facts on these different sides of issues. And so Nabeel's feeling about all of this is like, if we're going to rethink the marketplace as it exists now, maybe we should incorporate some of this other kind of thinking. We should start from the vantage point of the facts and information you need to participate in democratic deliberation, which could be local, which could be national. But we're going to focus on information health, not just the right of someone to speak.

• 31:44Speaker 04

  Although it's interesting, like,

• 31:47Speaker 04

  it doesn't negate the metaphor. The problem is the metaphor is so beautiful, it distracts you from those key questions, right?

• 31:55Speaker 02

  It totally does.

• 31:55Speaker 04

  But but those questions can be used to repair the metaphor into something that's actually functional. Can't you just say, say, the marketplace of ideas, asterix? Okay, and then in the asterix, it's like,

• 32:09Speaker 04

  assuming that everyone has equal access to the marketplace, assuming that each voice is properly weighted, assuming that truth and falsehood are somehow taken into account.

• 32:21Speaker 04

  That, I mean, what we're talking about is a regulated market of ideas.

• 32:26Speaker 02

  Yeah, I mean, I think that's good, but but then the question is like, who regulates it? How do we regulate it? Right now, the people who's regulating, like, we have the courts with, like, Citizens United being like, we don't.

• 32:35Speaker 04

  Unfortunately.

• 32:36Speaker 02

  Yeah, and now it's going to be Facebook and the CEO of Twitter is the one regulating? It doesn't make sense, like, who has that power? And how do we negotiate over that power? Which sort of just feels like we're back at square one, right? Like, like, we're back to the original problem, like, who should regulate speech? And then, and then, so I went back to Healy. Hey, Thomas. Just to put all this in front of him, to see if he had any thoughts. Yeah, I actually do. And the first thing he said was, okay, yes, the marketplace idea, the way it works now, it's broken. And and it's in general, it's just, it's an odd way to think about speech. This kind of weird, you know, commercial understanding of.

• 33:12Speaker 01

  Free speech, what about thinking about us all as scientists?

• 33:17Speaker 02

  Because you're not, you're not buying and selling potatoes. You're looking for truth.

• 33:21Speaker 01

  Absolutely, right. We're not buying and selling potatoes. We're testing the theory of relativity.

• 33:26Speaker 02

  Yeah. But he pointed out to me something else that Oliver Wendell Holmes said in that Abrams dissent.

• 33:33Speaker 01

  It turns out that Holmes relied on another metaphor in his Abrams dissent as well.

• 33:37Speaker 02

  There's a thing he says right after the marketplace idea.

• 33:41Speaker 01

  He writes, "That, at any rate, is the theory of our constitution. It is an experiment, as all life is an experiment."

• 33:49Speaker 02

  And so Healy says what he thinks about is that one word, experiment.

• 33:53Speaker 01

  And what Holmes could have possibly meant by that.

• 33:56Speaker 02

  And he's come to the view that, that Oliver Wendell Holmes was probably acutely aware through all of his experiences that reckoning with free speech, when you're trying to build a democracy.

• 34:08Speaker 01

  It doesn't end. We don't, we don't win the game, right? The whole point of free speech is not that, oh, we've got free speech. Now democracy is easy. No, democracy is hard.

• 34:18Speaker 02

  And so to Holmes, the point wasn't to get to some definitive moment of triumph. It was just to keep the experiment itself going for, you know, as long as possible.

• 34:29Speaker 01

  And one of the ways to promote the success of an experiment is to build in some flexibility.

• 34:37Speaker 02

  When the experiment doesn't go the way that you expect, when your initial ideas are challenged, you adapt, you come up with new ideas, even new metaphors.

• 34:47Speaker 01

  And so that's, that's another way to think about free speech.

• 34:50Speaker 02

  That we constantly have to be rethinking what we even mean by free speech.

• 34:55Speaker 01

  Okay.

• 34:56Speaker 02

  It's a, it's a constantly tweaking thing. Like, it's a thing that we, it's, it's never set. But it's something we need to kind of keep tweaking as we're going and, and keep refining. The marketplace of ideas has been such a beautiful idea and it's served us for about a century. And maybe it's time to think about what a different theory could look like. So what's the better theory? I mean, now, now is the time for you to kind of lay down this bombshell of this new theory. What, what is it? Oh, cool. Yeah, no, I don't have it yet, but

• 35:26Speaker 02

  I'm working on it.

• 35:36Speaker 02

  Speaking of which, what is a better metaphor? What is a better way to think about free speech in a modern society?

• 35:44Speaker 04

  Email us at [email protected].

• 35:47Speaker 02

  Yeah, email us, tweet at us, maybe don't tweet at us, given what we've learned, but let us know what you think. If you want to keep tabs on the wonderful Nabeja Sayed, you can find her at themarkup.org. Obviously, this whole episode started with Thomas Healy's book, The Great Descent. And he actually has a new book out called Soul City. This episode was produced by Sarah Kari, thanks to Jenny Lawton, Soren Shade, and Kelsey Padgett, who actually did the initial interview with Thomas Healy with me back in the More Perfect Days.

• 36:29Speaker 04

  I'm Jad Abumrad.

• 36:30Speaker 02

  I'm Latif Nasser.

• 36:31Speaker 04

  Thanks for listening.

• 36:33Speaker 06

  My name is Rebecca, and I'm from Brooklyn. And here are the staff credits. Radiolab is hosted by Lulu Miller and Latif Nasser. Soren Willer is our executive editor. Sarah Sandbach is our executive director. Our managing editor is Pat Walters. Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nyanan Sabanun, Matt Kilty, Mona Magavkar, Annie McEwen, Alex Neeson, Sarah Kari, Anissa Vize, Ariane Whack, Molly Webster, and Jessica Young, with help from Rebecca Rand. Our fact checkers are Diane Kelly, Emily Krieger, Anna Bahol Mazini, and Natalie Middleton.

• 37:20Speaker 02

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