Radiolab - What Up Holmes?

Episode Date: April 2, 2021

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 8-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 8 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 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. This episode was reported by Latif Nasser and was produced by Sarah Qari. Special thanks to Jenny Lawton, Soren Shade, Kelsey Padgett, Mahyad Tousi and Soroush Vosughi. Support Radiolab by becoming a member today at Radiolab.org/donate.      further reading: Thomas Healy’s book The Great Dissent: How Oliver Wendell Holmes CHanged His Mind - And Changed the History of Free Speech In America (the inspiration for this episode) plus his latest book Soul City: Race, Equality and the Lost Dream of an American Utopia. The Science article that Sinan Aral wrote in 2018, along with Soroush Vosughi and Deb Roy: “The Spread of True and False News Online” Sinan Aral’s recent book The Hype Machine: How Social Media Disrupts Our Elections, Our Economy and our Health - And How We Must Adapt Zeynep Tufekci’s newsletter “The Insight” plus her book Twitter and Teargas: The Power and Fragility of Networked Protest Nabiha Syed’s news website The Markup Trailer for “The Magnificent Yankee,” a 1950 biopic of Oliver Wendell Holmes Anthony Lewis, Freedom for the Thought that We Hate: A Biography of the First Amendment

Julia. Hey! Hello! How are you? I'm good! Hey, it's Chad, this is Radio Lab. Before we get to the podcast part of the podcast, I want to introduce you or reintroduce you to someone from the Radio Lab extended family who has a great new project that is just

out. You may remember her from the RBG episode that we ran. When you'd ask her a question, there would be silence. Enough silence. This is Ginsburg. To make a person nervous and start trying to help her answer the question. Or you might remember her from a mind-bending trip

she took to American Sima. This is the only place in the world that is US soil and people who are born here are not citizens. We're just generally from more perfect. More perfect. Our series about the Supreme Court. Oh, yeah. Julia Longoria is so great to talk to you again.

It is so nice to hear your voice. Julia has a new project that is a collaboration between WNYC Studios and the Atlantic magazine, and it is called The Experiment. It aims to be a show about the stories we tell ourselves as a country, our ideals, and moments when those ideals can feel far away. And this push and pull of believing in the ideal but pointing out when we mess up. Okay, so you guys have been out for a few months already. It's been getting amazing response.

Tell me about some of the stuff you've worked on or that you're working on that's exciting. Yeah, one of the stories I'm most excited about is actually about a Supreme Court case. It's about, it's the first case where the Supreme Court looked at vaccination, like basically forcing people to vaccinate and its legality. So there was this pastor, a guy named Henning Jacobson, who he was living in the US in 1904, and there was a smallpox epidemic then,

and Massachusetts passes this law where people are required to take the smallpox vaccine. So this pastor refused. He was like, no, I'm not doing it. I'm not gonna pay your fine. It was a fine that they had to pay. And, you know, the Supreme Court basically said, like, tough luck, like, you're gonna have to pay the fine.

And we were just curious about this case in this moment. So one of our producers, Gabrielle. Hi, is this the Swedish Lutheran church in Cambridge? Just cold-called the church. We haven't been that in a very long time, but yes. Where the pastor used to work, and the pastor who's there now, pastor Lutjehan picked up the phone.

I'm sure this is about vaccination. Yes. And was just the best character. He had thought so deeply about this man and was not an anti-vaxxer. And he describes this portrait of Pastor Jacobson that's sitting in his office. He looks like a wild hair and a wild beard kind of.

I think he was like kind of like a fire and grimstone sort of preacher. He dignified, I would say. dignified. Sort of asking, what are you going to do with me? I'm like, I don't know, honey. I don't know, man. The pastor's just kind of looking at them

and being like, what do we do with you? Like as our kind of founding father of this church that he's now a part of and cares deeply about, like how does he think about the legacy of this man? Oh my God, that's like a microcosm of a question we're all asking. I mean, how does he? He says that, you know, he has this reflection about how he's kind of

glad that Jacobson has this kind of complicated past because, you know, he was human and he doesn't, like, they don't have to make an idol out of him, you know, like, they don't get this pristine like they don't have to make an idol out of him, you know, like they don't get this pristine founding father and it kind of allows him to preach humility. I mean one of the beautiful things about about, I've just been personally about radio lab is watching people leave, well the leaving part is that sucks, that's the sucky part. But then after the sucky part there's that moment where a new thing comes into the world and here you are with a new thing and you're making it also with Catherine Wells who is another more perforal um Lab Alumn, Tracy Hunt is working with you.

So it's cool. Do you feel like, what's a not self-surfing way to ask this question? I'm curious, where do you feel, how do you feel like the spirit of the show diverges from something like a more perfect or radio lab? Yeah, I think, I mean, so many of the questions that we thought about together while working with you were really the, you know, the origin story of the show in a lot of ways. More perfect is a show about the Supreme Court and the experiment is a show that really

zooms out from there. ["Many I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I'm not sure if I or getting bigger and weirder. Alright. It's beautiful. That is Julia Longoria from the new podcast, The Experiment, a collaboration between your public radio and the Atlantic. It is an incredible podcast.

I am subscribed. I hope you subscribe. And you can do that wherever you get your podcasts. Okay, now for the show. Wait, you're listening to Radio Lab from WNYC. Hey, I'm Chad Abum. Hey. Hey. Hey. Hey. I'm Chad Abumrod. And I'm Lotha Fnasser.

This is Radio Lab. And you have something for me today, yes? Yes. So what I want to do is I want to tell you a mystery. Okay. A mystery that is centered on what makes America America. Um, wow. Yeah. It is the mystery of the first amendment.

Congress shall make Noah abridging the freedom of speech or of the press, right? That's the thing. Right. But it's been only 100 years or less than 100 years that we've understood free speech the way we do now. Before that, I describe it in my book as a largely unfulfilled promise.

So that's Thomas Healy, author, legal scholar, professor of law at Seaton Hall University School of Law. Thank you so much for coming out to talk to us. I talked to him a couple of years ago, actually, but that conversation that we had has stuck with me because of the way he talked about free speech in this country. And this was really shocking to me that kind of before World War I, the First Amendment was a completely different thing. Is that, am I getting that right?

Yeah, absolutely. The time that the First Amendment was ratified. So, Haley says that in the early days of our country, like, say you wanted to open up a newspaper or print some pamphlets. The big thing that the First Amendment did for you was say that you didn't need to get a license to do that. If you wanted to publish something,

if you wanted to have a press, you didn't get a license by the government to do that. You don't need to pay for a license to print what you want, which means the press was free in sort of the most boring literal sense of that word. But it also meant that the government couldn't censor you by like charging you too much or not selling you a license, which was no small thing. That was a big advance for freedom of speech.

Wow, there was no licensing system anymore. You could say whatever you wanted. But it was unclear at that time whether it offered more. You could say whatever you wanted, but it was unclear at that time whether it offered more. Like whether the First Amendment would protect you after you said whatever you wanted to say. And there was an early test of this in 1798, the Federalist government passed the Alien and Sedition Act. And not long after that, there were actually newspaper editors who would say stuff against the government and just get tossed in jail. Yes.

And the courts upheld it. So it kind of failed the test. It did fail the test. And like you see after that, like a hundred years of failed tests, right? Every time the Supreme Court sees this variation on the same question, are you allowed to say offensive versus subversive things

without being punished afterwards every time? They're like, no, which kind of stands and start contrast to what we see around us today, like even just in the last six months, right? People online lying about the election on Facebook, lying about vaccines during a pandemic, lies that even that led to the insurrection at the Capitol, right? So, how do we get to where we are now?

Where it just seems like the understanding is you can say whatever you want against the government, and it's fine. Well, it turns out, according to Healy, those views came, uh, basically we got those views because of one guy. All of her Wendell homes. Magnificent is the word for Oliver Wendell homes. We guarded today is the greatest Supreme Court justice in our history. Here is a story, is patriotic, is the red, white, and blue. He essentially laid the groundwork for our modern understanding of free speech. And who was he actually? Maybe I should start there.

Well, Oliver Wondahomes, he was born in 1841, comes from this old establishment, intellectual family in New England. He's kind of like what you you would imagine of early 20th century Supreme Court justice. He's from a very prominent wealthy Boston family. His names Oliver Wendell and Holmes. They're like fancy schmancy names. They all could trace their lineage back to the 17th century. You went to Harvard. You went to Harvard Law School. You fought in the Civil War, on the Union side of course. And by the time he's sitting on the Supreme Court,

he's in his 70s and sort of an imposing figure. He had this military bearing about him. This very upright posture. Piercing blue eyes, he had this sort of shock of very thick white hair on his head. Mustache, right? He has a great mustache. Yes. Great mustache.

Expanded out past the edges of his face. But the most important thing to know about all of Rwendell Holmes is that he was stridently anti-free speech, as we know it today. And that's kind of what's interesting here, because the mystery of how this country switched how it's off free speech is actually the mystery of how this one man switched how he thinks about free speech. And his change of mind became the whole country's change of mind. Huh. And it happened, that switch happened at a very particular moment in his life. So...

1917. World War I is happening. And in Washington, the draft is invoked. President Wilson draws the first number. And... Congress was worried that if people criticized the draft, then they wouldn't be able to raise an army. Congress passed something called the Espionage Act. Made it a crime to say things that might obstruct the war effort.

Part of it had to do with spy stuff, but there was another part that made it a crime to say things. Anything that was critical of the form of the United States government, or of the president, anything that was disloyal or scurious which covered pretty much everything 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 and so all of a sudden people were getting thrown in jail people who forded chain letters that were critical of the war. People who gave speeches against the draft, or people who said that the war was being fought to line the pockets of JP Morgan.

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, Shank versus United States, Froark versus United States, Debs versus United States, and the Court upheld these convictions. Saying, first amendment does not apply here. Like Espionage Act locked these people up.

And homes in all three of these cases, he actually writes the majority opinions. They're pretty dismissive of free speech. Like look, we are in the middle of a war. You cannot shut your damn mouth. Joke around, shut your mouth. Otherwise you're going to prison. 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 whole heartedly. It's like his bumper sticker. Exactly. Now, Holmes had his reasons for believing that. A lot of them going back to his experiences,

fighting in the Civil War. That experience, that had a huge effect on him. 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. You know, he watched a lot of his young friends die. He almost died himself. He felt like he was an accidental survivor. He was part of the 20th Massachusetts Regiment. And Gettysburg, the vast majority of the officers in his regiment were killed.

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 stinging with his blood. And so, when World War I was happening...

When people were out on the battlefield, risking their life, it wasn't too much to ask people at home to support that. His argument was basically that the good of the country mattered more than one person's right to say what they want. He made the analogy to vaccination if there's an epidemic. Which for them like us was probably top of mind

because the Spanish fluid just happened. And you think that vaccination might stop the epidemic and you force people to get vaccinated against their will. You infringe on their liberty and you force them to get vaccinated. For the greater good. For the greater good. And he thought the same thing applied when it came to speech. Later on in his career, all of Wendell Holmes took the 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. 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, you're the same guy that nine months ago was like, lock up everybody?

Had he said this sort of thing ever? No, this is no, he hadn't. What happened? Right, exactly. Why did he change his mind between the Debs case in March and the abrum's case in November why would this nearly 80 year old heterosexual cisgender white privilege powerful wealthy man like what made him in those eight months change his mind so radically

So quickly right right so really the the question is if you boil it down into three words and made him in those eight months, change his mind so radically, so quickly. Right, right. So really the question is, if you boil it down into three words, the three words are, what up homes? Um, you're so ridiculous. So, in a way, it's like, it's a mystery of one man, but it's a mystery that has this ripple effect into

kind of the, the, the, what is now perceived to be like the quintessential freedom in the land of the free, because that descent, that argument he made after he changed his mind, it's the reason why people like Healey say that homes laid the groundwork for our modern understanding of free speech. 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 he really gets obsessed with this

very specific question. Like, why did Holmes change his mind? Yeah, absolutely. And I basically tried to reconstruct every day in his life for about a year and a half time period. He hear laughing, but I did. I had a spreadsheet with every day. In this spreadsheet, he'll be tracked to 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. And the letters he was writing, the books he was reading, he kept a log of every book that he read. Wow. He even reads the books that Holmes's friends are writing and reading just in case they had a conversation with Holmes. That's great. And like what possibly they could have said to Holmes

that would have made him change his mind Wow, so did he did he find something that was there like a little smoking gun or something buried in all that data? well One thing he notices as he's digging into the daily doings of all of our wendell homes is that he became very close with a group of young progressive intellectuals in Washington DC. He with a group of young progressive intellectuals in Washington DC? He had a group of very young friends these brilliant progressive legal Scholars among them was future Supreme Court justice Felix Frank Verder the editors of the new republic magazine Herbert Crowley and Walter Lippman this young socialist named Harold Lasky who at the age of 24 was already teaching at Harvard and this group

They all gathered in this house in Washington DC called the House of Truth the House of Truth Wow House of Truth It was a townhouse like a little like clubhouse for like young progressives and homes was a frequent visitor there He would stop in on his way home from court and have a drink. And he would like play cards with them and debate truth with them. 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. Holmes loved to talk to people. And he loved to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy.

I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. I'm not sure if he's going to be a good guy. Holmes was pretty old. The other members of the Supreme Court, he didn't really care for. He thought that they were all sort of stodgy and dye. He didn't think that they were that smart. That's funny, dutty. Yeah. And all of these young men, they worshipped Holmes.

They would write him fan letters and they would write articles about him in magazines. And so he sort of found a new group of friends. They actually 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 birthday party.

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 we would call them my dear boy, my dear lads. And they'd write letters back to him saying stuff like yours affectionately or yours always. And they'd write letters back to him saying stuff like yours affectionately or yours always and they would talk about how much they loved him. How did they feel about his stance on the libelist speech stuff? Great question. They were not fans.

This group essentially engaged in a kind of lobbying campaign over the course of a year and a half to get homes to change his views about free speech. So in May of that year, so remember March is when he has those first opinions, in May they published an article in the New Republic criticizing his opinion in the Deb's case, which again was one of those earlier three cases. So they're knocking him publicly. And homes was so worked up by it that he sat down and he wrote a letter.

Kind of in a huff to the editor of the New Republic, defending himself. 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 going to do it.

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 in the Abrams case. 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 are in English, some are in Yiddish because it's like the Lower East Side, so there would have been at that time that there were a lot of Russian, Jewish, emigrates 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, but next after that he's going to 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,

that these weapons, that these people were making, were gonna be used to kill their loved ones back home. So quit it. Go on strike. Some detectives get on the case, they find the culprits. They were Russian immigrants who were anarchists. Three men, one woman. They went on rooftops in Lower Manhattan and through these leaflets from the rooftops. They're convicted under the espionage act. And the case ultimately makes its way

to the Supreme Court. In the fall of 1919, eight months after the earlier cases had been handed down by the court. 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. Something happened to these young friends, in particular to Lasky and Frank Ferdur.

One of Holmes' young friends, Harold Lasky, who's this socialist 24-year-old teaching at Harvard, he comes out in favor of a city-wide police strike. So the police in Boston are going on strike. And to the conservative alumni at Harvard, this was just anathema. And so there was this effort at Harvard to get Lasky fired from his job.

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 Frightford were there. And he is like, if I had, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like,

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you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're like, you're. 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, last he's shut up, or should he stay quiet and stay consistent, but then he's going to let his friend get publicly stoned, basically. So he's in this spot and, well, I guess what he does.

I think I know what he's going to do. He's going to write the letter. He's going to help out last key. So he does not write the letter. No. He does not write the letter supporting last key, but instead that same week, he writes this 12 paragraph descent to the Abrams case. The Abrams case is about a young socialist. Do you know what I mean? It's like last week 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. Oh wow. So he doesn't step in for his friend, but then he does step in for Abrams and company. So seven members of the court voted to uphold the convictions, but Holmes dissented. Here's what he wrote. 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. When men have realized that time has upset many fighting faiths. We've been wrong before. And we're likely going to be wrong again. That the ultimate good desired is better reached by free trade and ideas. 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.

The best test of truth is the power of the thought to get itself accepted in the competition of the market. 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. That at any rate is the theory of our constitution. It is an experiment, as all life is an experiment, as all life is an experiment. Whoa, that's beautiful. Really beautiful. Yeah, 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. And over the next decade or so, Great Court. When other free speech cases come up. Holmes continues to write very eloquent, passionate defenses of free speech.

And gradually, the other members of the court start to listen. The great legal journalist, Anthony Lewis, this is the way he writes it, those dissents, and in particular, the Abrams sent, 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- The marketplace of ideas. That it caught on so quickly and widely. The idea of the marketplace of ideas exploded. The First Amendment was about the marketplace of ideas. Not just in the course. The school is supposed to was about the marketplace of ideas. Not just in the course. The school is supposed to be the ultimate marketplace of ideas. But also beyond it.

The answer is more speech, not less. But as soon as you scratch the surface. That is not how the marketplace of ideas works. And start to think about how the marketplace actually works. No matter how offensive, repugnant, repellent language or image. Like what it lets in the room. You know what we should do with no scenes? We should defeat them in the marketplace of ideas. Or how you even find it. I don't really know where that is. The metaphor that has propped up our notion of free speech for the last 100 years

This propped up our notion of free speech for the last 100 years? Just starts to fall apart. And we'll get to that right after this break. Hi, my name is Rachel Melema and I'm calling from Alice Springs, Northern Territory, Australia. Radio Lab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. For more information about Sloan at www.Sloan.org Science reporting on Radio Lab is supported in part by Science Sandbox, a Science Foundation initiative dedicated to engaging everyone with the process of science.

Chad, Lothiff, Radio Lab, and we're back freely talking about talking freely and all of our window homes and the marketplace of ideas and just what a powerful metaphor that has become for us. 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, we wouldn't have the free speech we have today. 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.

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. Well, 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 it's actually a measurable thing. Like, we have marketplaces of ideas.

Like, Twitter is a marketplace of ideas, right? Where things get, you know, shout it down and shamed and- Shout it down and shamed or spread and celebrated. And the amazing thing about Twitter is that you can see that happen. There's real data there about retweets and likes and whatever else that you could actually use it to test Holmes' idea. Like, does the truth do the good ideas

actually rise to the top? 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. So we talked to this data and marketing researcher. Sinan Arawl, Professor MIT. 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. Every verified story that ever spread on Twitter, since its inception in 2006, we captured it.

They started by gathering up stories from a couple of fact-checking websites. Snopes, politifact, truth or fiction. Factcheck.org, urban legends, and so on and so forth. And they just listed all the stories that those sites had fact checks, like about anything. Politics, business, all kinds of stuff. Science, entertainment, natural disasters, terrorism, and war. And of all the stories they looked at, some were true, and some were false. Then we went to Twitter, and they found for each story the first tweet,

basically its entry into the marketplace. And then we recreated the retweet cascades of these stories from the origin tweet to all of the retweets that ever happened. And so for each story they ended up with a diagram that showed how it spread through the Twitterverse. And when you look at these diagrams, they look like trees spreading out. And the height and width of each tree would tell you how far and wide the information spread. Some of them are long and stringy

with just one person retweeting at a time. Some of them fan out. Tons of people retweeting the original tweet, then tons more people retweeting those retweeting at a time. Some of them fan out. Tons of people retweeting the original tweet, then tons more people retweeting those retweets. Lots of branches. On top of that, they could see just how fast the tree grew. 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? 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... The scariest result that I've ever uncovered since I've been a scientist. The trees of lies spread further wider and faster

than the truth trees. It took the truth approximately six times as long as falsity to reach 1500 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. So in this marketplace of ideas, the truth does not rise to the top. Well, that does not surprise me not even a little bit. But Well, okay, so now I'm sort of coming back to Holmes. Yeah, I think he's wrong on Twitter, right?

I definitely think he's wrong on Twitter. I don't think that's the marketplace he was envisioning, right? Or any of us, frankly. But I think it is possible. In fact, that's exactly what I'm trying to recreate in my little microcosm in my insight newsletter, in my little counters, in my own personal life. One of the conversations I had recently

that has just stuck so deeply in my head was I spoke to, um, and Zana to Fickchick, uh, writer, blogger. I am associate professor at University of North Carolina. I think she calls herself an expert in techno, social, technology because I didn't have a name so I made one up. So the, the intersection between technology and sociology, yeah, that she got a lot of press recently because she wrote that first article when President Trump was challenging all of the election results. A lot of people were seeing this as, yeah, Trump being Trump. This is before the capital interaction. Yeah. She basically wrote an article that said,

America, how are we not taking this seriously? Like, let's stop having, you know, nitpicky discussions because people wanna call this a coup. This is a coup, I'm Turkish, I've seen all kinds of coups. This is a coup. So I sort of wrote that when it was seen almost like a hysterical alarmist thing to say, look, he's actually trying to steal the election. And maybe we don't have the right word for this, but if we ignore it, we'll soon develop the kind

of expertise to have the exact right terminology, which is not good, which is how it is in Turkey, where I'm from, because we've been through so many. Yeah, so she was writing this article, which got a lot of attention. But then she did a thing which, it's so simple and it's so Basic, but it feels Beautifully deeply originally homesy and right so

That article you mentioned I had published in the Atlantic but she publishes in the Atlantic gets a lot of attention But also some pushback so she brings on this guy Much head chick Lofsky He's a friend who just disagreed with her like this is not a coup. After the election we started really like having this divergent view of it. I was just sort of saying like you're exaggerating. So I'm like, you know what? I have a news letter called insight. Huge following. So instead of just sort of disagreeing with me here and there, why don't you write that coherent argument? So she got him to come and write a length they take down of her article. She asked him to come and write a lengthy takedown

of her article. She asked him to write it on her blog, her newsletter to her audience, and then she did a lengthy counter to his counter to her counter. And then people can comment. And she said the whole reason to do it. You try to strengthen your argument

by having somebody poke holes in it. She said, I wanna make sure my argument is baller. I want to make sure my argument is just tip top, strong, and tall, and I need him to combat me with his knives out. And not only is it part of my newsletter, it's a paid part of my newsletter. She literally paid him to disagree with her. The whole idea of free speech is to let ideas

battle to get to the better version of them. to disagree with her. The whole idea of free speech is to let ideas battle to get to the better version of them. That's what makes your own thinking sharper. And so she was basically like, if there's a way to make a marketplace of my own to resurrect that dynamic, hell yeah, I'm totally gonna do that. And so I launched this.

And his was the first one. I've had other ones since she keeps doing it, bringing people on who I think and write a really good, strong version that counters mine, paying people to try to take me down. And she created a little marketplace in her microcosm. Right. That's a small little corner, but I thought,

if I'm going to have my little corner, I am going to recreate the battle of ideas in a good way. And maybe that's what we need to do. I mean, the marketplace metaphor fails us on social media and in so many places, but maybe the solution is to recreate it in thousands of microcosms, where the marketplace can exist. Well, okay, so let me counter that now. Okay. Uh, please, like, you know, it's nice as Zane Upps' little corner is, it works that way because she controls it, right? Like, she's sort of, you know, like a benign dictator, but she's still a dictator, she has the power.

And that's kind of the fundamental problem with all of these little marketplaces. People don't have the same size microphone in the marketplace of ideas. So I talked to a friend of mine. Her name's Nabiha Sayyid. Hello. Hey.

How are you? Good, this is work. So she's a media lawyer. She was one of the lawyers for Buzzfeed when they were evaluating that Trump dossier to release it. Oh, the steel dossier. Yeah. 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 surrounded by joiners who are like that ideas popular. I'm gonna join it. And part of it, she was saying, look, as a Muslim woman who grew up right after 9-11. You know, not that all things in the American Muslim experience boiled down to a single day

in 2001, but to the extent that like the aftermath of 9-11 was transformative, 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 terrorists, 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 megathons. But here's the thing to remember, like the marketplace of ideas was one theory, right? It's the idea that we glommed onto, and it's the 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. Lase affair. Set it and forget it, sort of model for free speech. But it's not the only one. Historically, there were being a bunch of other models and metaphors that people have used to talk about free speech. Some of which take the view not so much that you know argument and dissent lead to truth, but instead that like there's a truth out there in the world and that people have a right to hear it. 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' argument, and for that matter, unlike the, you know, attitude of, this is America, I can say whatever I want, this view...

It conceives of the rights of a listener, not just the rights of a speaker. The way the way do things now... We focus a lot on who gets to talk, right? And everyone's talking somehow blah, blah magic happens. We don't ever talk about the listener. If you're listening to all these people talk, do you have a right to act your information? 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 Nabiha'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. Although it's interesting, like, it doesn't negate the metaphor. Uh-huh. The problem is the metaphor is so beautiful, it distracts you from those key questions, right? It totally does. But those questions can be used to repair the metaphor

into something that's actually functional. Can't you just say the marketplace of ideas, asterix, okay? And then in the asterix, it's like, 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.

I mean, what we're talking about is a regulated market of ideas. Yeah, I mean, I think that's good, but then the question is like, who regulated? How do we regulate it? Right now, the people who's regulated, like we have the courts with like citizens United being like, we don't. Unfortunately.

Yeah, and now it's gonna 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, 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 you 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 the first thing you said was, okay, yes, the marketplace idea,

the way it works now, it's broken. And it's, in general, it's just an odd way to think about speech. It's kind of weird, you know, commercial understanding of free speech. What about thinking about us all as scientists? Because you're not, you're not buying and selling potatoes. You're looking for truth.

Absolutely, right. We're not buying and selling potatoes. We're testing the theory of relativity. Yeah. But he pointed out to me something else that all of Rwendell Holmes said in that Abrams descent. It turns out that Holmes relied on another metaphor in his Abrams descent as well. There's a thing he says right after the marketplace idea. He writes that in any rate is the theory of our Constitution. It is an experiment as all life is an experiment. And so he only says what he thinks about is that one word, experiment. And what homes could have possibly meant by that? And he's come to the view that all of Rwendell Holmes was probably acutely aware through all of his experiences

that reckoning with free speech when you're trying to build a democracy. It doesn't end. We don't win the game. The whole point of free speech is not that, oh, we've got free speech, now democracy is easy. No democracy is hard. 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. And one of the ways to promote the success of an experiment is to build in some flexibility. 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. And so that's another way to think about free speech. That we constantly have to be rethinking what we even mean by free speech. It's a constantly tweaking thing. It's a thing that we, it's never set, but it's something we need to kind of keep tweaking as we're going and keep refining. The marketplace of ideas has been such a beautiful idea

and it 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 is the time for you to kind of lay down this bombshell of this new theory. What is it? Oh cool, yeah, no, I don't have it yet, but...

I'm working on it. Speaking of which, what is a better metaphor? What is a better way to think about free speech in a modern society? Email us at radiolab at wnyc.org. Yeah, email us, tweet us, maybe don't tweet us, given what we've learned, but let us know what you think. If you want to keep tabs on the wonderful Nebihah Sayyid, you can find her at the markup.org.

Obviously, this whole episode started with Thomas Healey's book, The Great Descent, and he actually has a new book out called Soul City. This episode was produced by Sara Kari, thanks to Jenny Lotton, Soren Shade, and Kelsey Paget, who actually did the initial interview with Thomas Healy back in the more perfect days. I'm Chad Abumrod, I'm Lutthifnosser.

Thanks for listening. Hi, this is Megan Moore, calling from Kansas City, Missouri. Radio Lab was created by Chad Abumrod and is edited by Sword Wheeler. Lulu Miller and Lutus Nasser are our co-host. Susie Lektonberg is our executive producer. Dylan Keith is our director of sound design. Our staff includes Simon Abler, Jeremy Bloom, Becca Brestler, Rachel Kusik, David Gabel, Matt Kielte, Annie McEwan, Sarah Carrey, Aryan Wack, Pat Walters, and Molly Webster.

With help from Shima Oliai, Sarah Sandbach, and Karen Leon, our fat checkers, our Diane Kelly, and Emily Krieger. you