Apr 2, 2021

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 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

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JULIA LONGORIA: Hello (laughter).

JAD ABUMRAD: (Laughter) How are you?

JULIA LONGORIA: I'm good (laughter).

JAD ABUMRAD: Hey. It's Jad. This is RADIOLAB. Before we get to the podcast part of the podcast, I want to introduce you, or reintroduce you, to someone from the RADIOLAB extended family who has a great new project that is just out. You may remember her from the RBG episode that we ran.


WENDY WILLIAMS: When you'd ask her a question, there would be silence (laughter). Enough silence...

WARREN E BURGER: Mrs. Ginsburg?

WENDY WILLIAMS: ...To make a person nervous and start trying to help her answer the question.


JAD ABUMRAD: Or you might remember her from a mind-bending trip she took to American Samoa.


JULIA LONGORIA: This is the only place in the world that is U.S. soil and people who are born here are not citizens.

JAD ABUMRAD: Or just generally from "More Perfect"...


UNIDENTIFIED PERSON: (Distorted) More perfect.

JAD ABUMRAD: ...Our series about the Supreme Court.


JAD ABUMRAD: Julia Longoria, it's so great to talk to you again.

JULIA LONGORIA: It is so nice to hear your voice (laughter).

JAD ABUMRAD: Julia has a new project that is a collaboration between WNYC Studios and The Atlantic magazine. And it is called "The Experiment."

JULIA LONGORIA: 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, like, believing in the ideal, but pointing out when we mess up.

JAD ABUMRAD: OK. 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.

JULIA LONGORIA: 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 U.S. 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 going to 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 going to have to pay the fine. And we were just curious about this case in this moment.


JULIA LONGORIA: So one of our producers, Gabrielle...


GABRIELLE BERBEY: Hi. Is this the Swedish Lutheran Church in Cambridge?

JULIA LONGORIA: ...Just cold-called the church...


ROBIN LUTJOHANN: (Laughter) We haven't been that in a very long time, but, yes.

JULIA LONGORIA: ...Where the pastor used to work. And the pastor who's there now, Pastor Lutjohann, picked up the phone...


ROBIN LUTJOHANN: I'm sure this is about vaccination?


JULIA LONGORIA: ...And was just the best character. He had thought so deeply about this man and was not an anti-vaxxer (laughter). And he describes this portrait of Pastor Jacobson that's sitting in his office.


ROBIN LUTJOHANN: He looks like a - you know, like, wild hair and a wild beard, kind of. I think he was, like, kind of like a fire-and-brimstone sort of preacher. He's dignified, I would say - dignified. Sort of asking, what are you going to do with me?


ROBIN LUTJOHANN: And I'm like, I don't know, Henning.


ROBIN LUTJOHANN: I don't know, man.

JULIA LONGORIA: The pastor's just kind of looking at him and being like, what do we do with you? Like, as our, like, 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?

JAD ABUMRAD: Oh, my God. That's like a microcosm of a question we're all asking. I mean, how does he?

JULIA LONGORIA: 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 founding father, and it kind of allows him to preach humility.



JAD ABUMRAD: I mean, one of the beautiful things about - just speaking personally - about RADIOLAB is watching people leave. Well, the leaving part, that sucks. That's the sucky part. But then after the sucky part, there's, like, 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 Katherine Wells, who is another "MoPerf" (ph) alum. And RADIOLAB alum Tracie Hunte is working with you. So it's cool. I mean, do you feel - like, I - what's a not self-serving way to ask this question?


JAD ABUMRAD: I'm curious, like, where do you feel - how do you feel like the spirit of this show diverges from something like "More Perfect" or RADIOLAB?

JULIA LONGORIA: Yeah, I think - I mean, you know, so many of the questions that we thought about together while working with you were really the, you know, the origin story of this 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.


JULIA LONGORIA: You don't have to be a plaintiff in the Supreme Court to collide with the big ideas that this country claims to be about. So I think we're getting bigger and weirder (laughter).

JAD ABUMRAD: All right.

JULIA LONGORIA: Is that cool?


JAD ABUMRAD: That is Julia Longoria from the new podcast "The Experiment," a collaboration between New York 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. OK, now for the show.


UNIDENTIFIED PERSON: Wait. Wait. You're listening (laughter)...





UNIDENTIFIED PERSON: You're listening...







JAD ABUMRAD: Hey, I'm Jad Abumrad.

LATIF NASSER: And I'm Latif Nasser.

JAD ABUMRAD: This is Radiolab, and you have something for me today - yes?

LATIF NASSER: Yes. So what I want to do is I want to tell you a mystery.


LATIF NASSER: A mystery that is centered on what makes America America.


LATIF NASSER: Yeah. It is the mystery of the First Amendment.


LATIF NASSER: Congress shall make no law abridging the freedom of speech or of the press, right? That's the thing.



THOMAS HEALY: It's been only a hundred years or less than a hundred years that we've understood free speech the way we do now. Before that, you know, I describe it in my book as a largely unfulfilled promise.

LATIF NASSER: So that's Thomas Healy - author, legal scholar...

THOMAS HEALY: Professor of law at Seton Hall University School of Law.

LATIF NASSER: Thank you so much for coming out to talk to us.

THOMAS HEALY: Excited to be here.

LATIF NASSER: 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?

THOMAS HEALY: Yeah, absolutely. The time that the First Amendment was ratified...

LATIF NASSER: So Healy says that in the early days of our country, like, say you wanted to open up a newspaper...


LATIF NASSER: ...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.

THOMAS HEALY: If you wanted to publish something, if you wanted to have a press, you didn't get licensed by the government to do that.

LATIF NASSER: 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.

THOMAS HEALY: 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.

LATIF NASSER: Like, whether the First Amendment would protect you after you've said whatever you wanted to say.

THOMAS HEALY: And there was an early test of this. In 1798, the Federalist government passed the Alien and Sedition Act.

LATIF NASSER: And not long after that, there were actually newspaper editors who would say stuff against the government and just get tossed in jail.

THOMAS HEALY: Yes. And the courts upheld it.

LATIF NASSER: So it kind of failed the test.

THOMAS HEALY: It did fail the test.

LATIF NASSER: And, like, you see after that, like, 100 years of failed tests - right? - every time the Supreme Court sees this, you know, variation on this same question, are you allowed to say offensive or subversive things without being punished afterwards? Every time, they're like, no, which kind of stands in stark contrast to, like, 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, you know, during a pandemic, lies that even - that led to the insurrection at the Capitol - right?

JAD ABUMRAD: 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?

LATIF NASSER: Well, it turns out, according to Healy, those views came - basically, we got those views because of one guy.


LATIF NASSER: Oliver Wendell Holmes.


UNIDENTIFIED PERSON: Magnificent is the word for Oliver Wendell Holmes.

THOMAS HEALY: Regarded today as the greatest Supreme Court justice in our history.


UNIDENTIFIED PERSON: Here is a story as patriotic as the red, white and blue.


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

LATIF NASSER: And who was he, actually? Maybe I should start there.

THOMAS HEALY: Well, Oliver Wendell Holmes - he was born in 1841, comes from this, you know, old-establishment, intellectual family in New England.

LATIF NASSER: He's kind of like what you would imagine of a early 20th century Supreme Court justice. He's from a very prominent, wealthy Boston family.

THOMAS HEALY: His name's Oliver Wendell and Holmes.

LATIF NASSER: They're, like, fancy-schmancy names.

THOMAS HEALY: They all could trace their lineage back to the 17th century.

LATIF NASSER: He went to Harvard. He went to Harvard Law School.

THOMAS HEALY: He fought in the civil war on the Union side, of course.

LATIF NASSER: And by the time he's sitting on the Supreme Court, he's in his 70s and sort of an imposing figure.

THOMAS HEALY: He had this military bearing about him.

LATIF NASSER: This very, like, upright posture.

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

JAD ABUMRAD: Mustache - right? He has a great mustache.


LATIF NASSER: Great mustache.

THOMAS HEALY: That expanded out past the edges of his face.

LATIF NASSER: But the most important thing to know about Oliver Wendell 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 saw 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.


LATIF NASSER: And it happened - that switch happened at a very particular moment in his life. So...


LATIF NASSER: ...1917 - World War I is happening.


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


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

LATIF NASSER: Congress passed something called the Espionage Act...

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

LATIF NASSER: Part of it had to do with spy stuff. But there was another part that made it a crime to say things...

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

LATIF NASSER: ...Which covered pretty much everything.

THOMAS HEALY: 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.

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

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

LATIF NASSER: ...People who gave speeches against the draft...

THOMAS HEALY: ...Or people who said that the war was being fought to line the pockets of J.P. Morgan.

LATIF NASSER: 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 v. United States, Frohwerk v. United States, Debs v. United States.

THOMAS HEALY: And the court upheld these convictions...

LATIF NASSER: ...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.

THOMAS HEALY: They're pretty dismissive of free speech.

LATIF NASSER: Like, look. We are in the middle of a war. You cannot...

JAD ABUMRAD: Shut your damn mouth.

LATIF NASSER: ...Joke around. Shut your mouth. Otherwise, you're going to prison.

THOMAS HEALY: 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.

LATIF NASSER: (Laughter) That's like his bumper sticker.


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

THOMAS HEALY: That experience - that had a huge effect on him.

LATIF NASSER: 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.

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

LATIF NASSER: He almost died himself.

THOMAS HEALY: 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.

LATIF NASSER: 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...

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

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

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

LATIF NASSER: ...Which for them, like us, was probably top of mind because the Spanish Flu had just happened...

THOMAS HEALY: ...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...

LATIF NASSER: ...For the greater good...

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

LATIF NASSER: 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 free 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 of the other justices are still agreeing with the conviction, but he writes a dissent.


LATIF NASSER: 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 - you're the same guy that, nine months ago, was like, lock up everybody?

Had he said this sort of thing ever?

THOMAS HEALY: No, this is - no, he hadn't.

JAD ABUMRAD: What happened?

LATIF NASSER: Right. Exactly.

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

LATIF NASSER: 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?

JAD ABUMRAD: Right. Right.

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

JAD ABUMRAD: (Laughter) You're so ridiculous.

LATIF NASSER: 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 - what is now perceived to be, like, the quintessential freedom 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...

THOMAS HEALY: ...Laid the groundwork for our modern understanding of free speech.

LATIF NASSER: 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 Healy gets obsessed with this very specific question. Like, why did Holmes change his mind?

THOMAS HEALY: Yeah, absolutely. And I basically tried to reconstruct every day in his life for about a year and a half time period.

LATIF NASSER: (Laughter).

THOMAS HEALY: You're laughing, but I did. I had a spreadsheet with every day.

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

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


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

JAD ABUMRAD: That's great.

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

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



LATIF NASSER: ...One thing he notices as he's digging into the daily doings of Oliver Wendell Holmes is that...

THOMAS HEALY: He became very close with a group of young progressive intellectuals in Washington, D.C...

LATIF NASSER: He had a group of very young friends, these brilliant, progressive legal scholars. Among them was a future Supreme Court justice...

THOMAS HEALY: ...Felix Frankfurter...

LATIF NASSER: ...The editors of The New Republic magazine...

THOMAS HEALY: ...Herbert Croly and Walter Lippmann...

LATIF NASSER: ...This young socialist named Harold Laski, who, at the age of 24, was already teaching at Harvard. And this group, they all...

THOMAS HEALY: ...Gathered in this house in Washington, D.C., called the House of Truth.

JAD ABUMRAD: The House of Truth, wow.

THOMAS HEALY: The House of Truth.

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

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

LATIF NASSER: And he would, like, play cards with them...

THOMAS HEALY: ...And debate the truth with them.

LATIF NASSER: 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 then, like, yeah, just, like, laying down truth bombs.


THOMAS HEALY: Holmes loved to talk to people. He loved to be challenged. He loved debate.

LATIF NASSER: 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...

THOMAS HEALY: Those people were all dead by this point. Holmes was pretty old.

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

THOMAS HEALY: He thought that they were all sort of stodgy.

LATIF NASSER: (Laughter).

THOMAS HEALY: And he didn't think that they were that smart.

LATIF NASSER: Fuddy-duddies.

THOMAS HEALY: Yeah. And all of these young men, they worshipped Holmes.

LATIF NASSER: They would write him fan letters, and they would write articles about him in magazines.

THOMAS HEALY: And so he sort of found a new group of friends.

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

THOMAS HEALY: 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.

LATIF NASSER: And they'd write letters back to him saying stuff like...

THOMAS HEALY: ...Yours affectionately or yours always. And they would talk about how much they loved him.

JAD ABUMRAD: How did they feel about his stance...


JAD ABUMRAD: ...On the libelous speech stuff?

LATIF NASSER: Great question. They were not fans.

THOMAS HEALY: This group essentially engaged in a kind of lobbying campaign over the course of the...


THOMAS HEALY: ...Year, year and a half to get Holmes to change his views about free speech.

LATIF NASSER: 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...

THOMAS HEALY: Criticizing his opinion in the Debs case...

LATIF NASSER: Which, again, was one of those earlier three cases - so they're knocking him publicly.

THOMAS HEALY: And Holmes was so worked up by it that he sat down, and he wrote a letter...

LATIF NASSER: Kind of in a huff...

THOMAS HEALY: ...To the editor of The New Republic defending himself...

LATIF NASSER: 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.

THOMAS HEALY: 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.

LATIF NASSER: 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 are on their way to work see a bunch of pamphlets on the sidewalk.


LATIF NASSER: They were all scattered around. Some were in English. Some were in Yiddish 'cause 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. 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...

THOMAS HEALY: That these weapons that these people were making were going to be used to kill their loved ones back home...

LATIF NASSER: So quit it.

THOMAS HEALY: Go on strike.

LATIF NASSER: Some detectives get on the case. They find the culprits.

THOMAS HEALY: They were Russian immigrants who were anarchists.

LATIF NASSER: Three men, one woman.

THOMAS HEALY: They went on rooftops in lower Manhattan and threw these leaflets from the rooftops.

LATIF NASSER: They're convicted under the Espionage Act.


LATIF NASSER: And the case ultimately makes its way to the Supreme Court.

THOMAS HEALY: ...In the fall of 1919, eight months after the earlier cases have been handed down by the court.

LATIF NASSER: 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.

THOMAS HEALY: Something happened to these young friends, in particular to Laski and Frankfurter.

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

THOMAS HEALY: And to the conservative alumni at Harvard, this was just anathema. And so there was this effort at Harvard...

LATIF NASSER: To get Laski fired from his job...

THOMAS HEALY: 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 Laski and...


THOMAS HEALY: ...Frankfurter were there.

LATIF NASSER: And he is like, if I had - if only I had sort of a prominent Harvard alum who could stand up for me right now. 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. As a soldier, he believes that, no. Like, Laski, shut up. Or should he stay quiet and stay consistent, but then he's going to let his friend get publicly stoned, basically?


LATIF NASSER: So he's in this spot. And well, guess what he does?

JAD ABUMRAD: I think I know what he's going to do. He's going to write the letter. He's going to help out Laski.

LATIF NASSER: So he does not write the letter.


LATIF NASSER: He does not write the letter supporting Laski. But instead, that same week, he writes this 12-paragraph dissent to the Abrams case.


LATIF NASSER: The Abrams case is about a young socialist - do you know what I mean?


LATIF NASSER: Like, it's like Laski 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 that they said.


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

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

LATIF NASSER: Here's what he wrote.

THOMAS HEALY: 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.

LATIF NASSER: (Reading) When men have realized that time has upset many fighting faiths...

THOMAS HEALY: We've been wrong before, and we're likely going to be wrong again.

LATIF NASSER: (Reading) ...That the ultimate good desired is better reached by free trade and ideas.

THOMAS HEALY: 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.

LATIF NASSER: (Reading) The best test of truth is the power of the thought to get itself accepted in the competition of the market.

THOMAS HEALY: 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.

LATIF NASSER: (Reading) That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.


JAD ABUMRAD: Wow. That's beautiful.

LATIF NASSER: Really beautiful.


THOMAS HEALY: 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.


LATIF NASSER: And over the next decade or so...


OLIVER WENDELL HOLMES JR: A great court (ph)...

LATIF NASSER: ...When other free speech cases come up...

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

LATIF NASSER: 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...

THOMAS HEALY: The marketplace of ideas.

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


UNIDENTIFIED PERSON: The First Amendment was about the marketplace of ideas.

LATIF NASSER: Not just in the courts...


UNIDENTIFIED PERSON: School is supposed to be the ultimate marketplace of ideas.

LATIF NASSER: ...But also beyond it.


UNIDENTIFIED PERSON: The answer is more speech, not less.

LATIF NASSER: But as soon as you scratch the surface...


UNIDENTIFIED PERSON: That is not how the marketplace of ideas works.

LATIF NASSER: ...And start to think about how the marketplace actually works...


UNIDENTIFIED PERSON: No matter how offensive, repugnant, repellent language or imagery...

LATIF NASSER: ...Like, what it lets in the room...


UNIDENTIFIED PERSON: You know what we should do with Nazis? We should defeat them in the marketplace of ideas.

LATIF NASSER: ...Or how you even find it...


UNIDENTIFIED PERSON: I don't really know where that is.


LATIF NASSER: ...The metaphor that has 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.





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

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

LATIF NASSER: 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, 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...


LATIF NASSER: ...We wouldn't have the free speech we have today.

JAD ABUMRAD: 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.


JAD ABUMRAD: 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.

LATIF NASSER: Well, so what's interesting is that Holmes' 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...

JAD ABUMRAD: Shouted down and shamed and...

LATIF NASSER: ...Shouted 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?

SINAN ARAL: 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.

LATIF NASSER: So I talked to this data and marketing researcher.

SINAN ARAL: Sinan Aral, professor, MIT.

LATIF NASSER: 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?


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

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

SINAN ARAL: Snopes, PolitiFact, TruthOrFiction...

LATIF NASSER: ...Factcheck.org...

SINAN ARAL: ...Urban Legends and so on and so forth.

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

SINAN ARAL: ...Politics, business...

LATIF NASSER: ...All kinds of stuff...

SINAN ARAL: ...Science, entertainment...

LATIF NASSER: ...Natural disasters...

SINAN ARAL: ...Terrorism and war.

LATIF NASSER: And of all the stories they looked at...

SINAN ARAL: Some were true...

LATIF NASSER: ...And some were false.

SINAN ARAL: Then we went to Twitter.

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

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

LATIF NASSER: 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...

SINAN ARAL: They look like trees spreading out.

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

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

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

SINAN ARAL: ...Lots of branches.

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

SINAN ARAL: 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?

LATIF NASSER: 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...

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

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

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


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

JAD ABUMRAD: Well, that does not surprise me, not even a little bit. But - well, OK. And see, now I'm sort of coming back to Holmes.


JAD ABUMRAD: 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....


JAD ABUMRAD: Right? - or any of us, frankly. But I think it is possible.

ZEYNEP TUFEKCI: 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.

JAD ABUMRAD: One of the conversations I had recently that has just stuck so deeply in my head was - I spoke to...

ZEYNEP TUFEKCI: I'm Zeynep Tufekci.

JAD ABUMRAD: ...Writer, blogger.

ZEYNEP TUFEKCI: I am associate professor at University of North Carolina.

JAD ABUMRAD: I think she calls herself an expert in techno-social...

ZEYNEP TUFEKCI: Technosociology because I didn't have a name, so I made one up.

JAD ABUMRAD: So the intersection between technology and sociology.


JAD ABUMRAD: She got a lot of press recently because she wrote that first article when President Trump was challenging all of the election results.

ZEYNEP TUFEKCI: A lot of people were seeing this as, you know, Trump being Trump.

JAD ABUMRAD: This is before the Capitol insurrection. She basically wrote an article that said, America...

ZEYNEP TUFEKCI: How are we not taking this seriously? Like, let's stop having, you know, nitpicky discussions because people want to call this a coup.

JAD ABUMRAD: This is a coup. I'm Turkish. I've seen all kinds of coups. This is a coup.

ZEYNEP TUFEKCI: 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.


JAD ABUMRAD: 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 Holmesian.

ZEYNEP TUFEKCI: Right. So that article you mentioned, I had published in The Atlantic.

JAD ABUMRAD: She publishes in The Atlantic, gets a lot of attention, but also some pushback. So she brings on this guy...

ZEYNEP TUFEKCI: Maciej Ceglowski - he's a friend.

JAD ABUMRAD: ...Who just disagreed with her. Like, this is not a coup.

ZEYNEP TUFEKCI: After the election, we started really, like, having this divergent view of it. He was just sort of saying, like, you're exaggerating. So I'm like, you know what? I have a newsletter called Insight.

JAD ABUMRAD: Huge following.

ZEYNEP TUFEKCI: So instead of just sort of disagreeing with me here and there, why don't you write that coherent argument?

JAD ABUMRAD: So she got 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.

ZEYNEP TUFEKCI: And then people can comment.

JAD ABUMRAD: And she said the whole reason to do it...

ZEYNEP TUFEKCI: You try to strengthen your argument by having somebody poke holes in it.

JAD ABUMRAD: She said, I want to 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 come at me with his knives out.

ZEYNEP TUFEKCI: And not only is it part of my newsletter, it's a paid part of my newsletter.

JAD ABUMRAD: She literally paid him to disagree with her.

ZEYNEP TUFEKCI: 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.

JAD ABUMRAD: 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 going to do that.

ZEYNEP TUFEKCI: And so I launched this. And his was the first one. I've had other ones since.

JAD ABUMRAD: She keeps doing it, bringing people on...

ZEYNEP TUFEKCI: Who I think can write a really good, strong version that counters mine, paying people to try to take me down...

JAD ABUMRAD: And she created a little marketplace in her microcosm.


ZEYNEP TUFEKCI: It'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.

JAD ABUMRAD: 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.

LATIF NASSER: Well, OK, so let me counter that now.


LATIF NASSER: Like, you know, as nice as Zeynep's 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.

NABIHA SYED: People don't have the same size microphone in the marketplace of ideas.

LATIF NASSER: So I talked to a friend of mine. Her name's Nabiha Syed.



NABIHA SYED: How are you?

LATIF NASSER: Good. Does this work?

So she's a media lawyer. She was one of the lawyers for BuzzFeed when they were, like, evaluating that Trump dossier to release it.

JAD ABUMRAD: Oh, the Steele dossier?


NABIHA SYED: And I'm the president of The Markup, a nonprofit news organization that investigates Big Tech.

LATIF NASSER: And one of the first things she told me was that one of the problems with the marketplace of ideas is that there's...

NABIHA SYED: 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's popular; I'm going to join it.

LATIF NASSER: And part of it, she was saying, like, look, like, as a Muslim woman who grew up, like, right after 9/11...

NABIHA SYED: 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 9/11 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...

LATIF NASSER: You know, like, as we all know, it's like, Muslim, terrorist, blah, blah, blah, blah.

NABIHA SYED: ...That bore no relationship to my Orange County, Pakistani, like, Kardashian-esque life, right?

LATIF NASSER: (Laughter).

NABIHA SYED: Like, I just didn't - I was like, who are these people? Who this?

LATIF NASSER: And she's like, and I never - my people never got the mic. It's about power. It's about megaphones.

NABIHA SYED: 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.

LATIF NASSER: Because it was this sort of idealistic metaphor, but also because it was the most convenient...

NABIHA SYED: Laissez faire...

LATIF NASSER: ...Set it and forget it sort of model for free speech. But...

NABIHA SYED: It's not the only one.

LATIF NASSER: Historically, there have been 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.

NABIHA SYED: You should know, is the well in your neighborhood poisoning you, yes or no?

LATIF NASSER: Like, what are the facts that you need to know to live your life and operate in society?

NABIHA SYED: That's not a subjective set of opinions. Like, is water poisonous? Yes? Why?

LATIF NASSER: And what was interesting to me about this view 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...

NABIHA SYED: Conceives of, like, the rights of a listener, not just the rights of a speaker...

LATIF NASSER: The way that we do things now...

NABIHA SYED: We focus a lot on who gets to talk, right? And everyone's talking. Somehow - blah, blah - magic happens.

LATIF NASSER: (Laughter).

NABIHA SYED: We don't ever talk about the listener. Like, if you're listening to all these people talking, do you have a right to accurate information? And you see some glimmers of that throughout American history.

LATIF NASSER: So, for example, in 1949, the government actually set a policy, basically a rule, saying, if you are a news broadcaster...

NABIHA SYED: ...You have to present both sides of an issue. You have to provide facts on these different sides of issues.

LATIF NASSER: 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.

NABIHA SYED: 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.

JAD ABUMRAD: Although, it's interesting - like, it doesn't negate the metaphor. The problem is the metaphor is so beautiful, it distracts you from those key questions, right?

LATIF NASSER: It totally does.

JAD ABUMRAD: But those questions can be used to repair the metaphor into something that's actually functional. Can't you just say it's the marketplace of ideas - asterisk. OK? And then in the asterisk, 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, that - I mean, what we're talking about is a regulated market of ideas.

LATIF NASSER: Yeah. I mean, I think that's good. But then the question is, like, who regulates it? How do we regulate it? Right now, the people who's regulating it - like, we have the courts with, like, Citizens United...

JAD ABUMRAD: Facebook, unfortunately.

LATIF NASSER: ...Being like, we don't - 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 1, right? Like, we're back to the original problem. Like, who should regulate speech? And then - so I went back to Healy...

Hey, Thomas.


LATIF NASSER: ...Just to put all this in front of him, see if he had any thoughts.

THOMAS HEALY: Yeah, I actually do.

LATIF NASSER: And the first thing he said was, OK, yes, the marketplace idea - the way it works now, it's broken. And it's - in general, it's an odd way to think about speech.

THOMAS HEALY: This kind of weird, you know, commercial understanding of free speech - what about thinking about us all as scientists?

LATIF NASSER: Because you're not buying and selling potatoes - you're looking for truth.

THOMAS HEALY: Absolutely. Right. We're not buying and selling potatoes. We're testing the theory of relativity.

LATIF NASSER: Yeah (laughter).

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

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

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

THOMAS HEALY: He writes, (reading) that, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

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

THOMAS HEALY: And what Holmes could have possibly meant by that...

LATIF NASSER: And he's come to the view 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...

THOMAS HEALY: It doesn't end. 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.

LATIF NASSER: 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.

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

LATIF NASSER: 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.

THOMAS HEALY: And so that's another way to think about free speech...

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


LATIF NASSER: It's a constantly tweaking thing. Like, 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.

NABIHA SYED: 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.

LATIF NASSER: 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?

NABIHA SYED: Oh, cool. Yeah, no, I don't have it yet. But...


NABIHA SYED: I'm working on it.

LATIF NASSER: (Laughter).


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

JAD ABUMRAD: Email us at radiolab@wnyc.org.

LATIF NASSER: 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 Nabiha Syed, you can find her at themarkup.org. Obviously, this whole episode started with Thomas Healy's book "The Great Dissent," and he actually has a new book out. It's called "Soul City." This episode was produced by Sarah Qari. 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.

JAD ABUMRAD: I'm Jad Abumrad.

LATIF NASSER: I'm Latif Nasser.

JAD ABUMRAD: Thanks for listening.


MEGAN MOORE: Hi, this is Megan Moore (ph) calling from Kansas City, Mo. RADIOLAB was created by Jad Abumrad and is edited by Soren Wheeler. Lulu Miller and Latif Nasser are our co-hosts. Suzie Lechtenberg is our executive producer. Dylan Keefe is our director of sound design.

Our staff includes Simon Adler, Jeremy Bloom, Becca Bressler, Rachael Cusick, David Gebel, Matt Kielty, Annie McEwen, Sarah Qari, Arianne Wack, Pat Walters and Molly Webster, with help from Shima Oliaee, Sarah Sandbach and Carin Leong. Our fact-checkers are Diane Kelly and Emily Krieger.

Copyright © 2021 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.


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