JAD ABUMRAD: Julia.

JULIA LONGORIA: Jad.

JAD: Hey!

JULIA: Hello. [laughs]

JAD: [laughs] How are you?

JULIA: I'm good.

JAD: 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 Radioloab 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. Enough silence ...

[ARCHIVE CLIP, Warren Burger: Mrs. Ginsburg?]

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

JULIA: [laughs]

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

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

JAD: Or just generally from More Perfect, our series about the Supreme Court.

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

JULIA: It is so nice to hear your voice.

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

JULIA: 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: 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.

JULIA: 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.

JAD: Yeah.

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

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

JULIA: ... just cold-called the church ...

ROBIN LUTJOHANN: [laughs] We haven't been that in a very long time, but, yes.

JULIA: ... 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?

GABRIELLE BERBEY: Yes.

JULIA: ...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.

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 gonna do with me?"

GABRIELLE BERBEY: [laughs]

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

GABRIELLE BERBEY: [laughs]

ROBIN LUTJOHANN: I don't know, man.

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

JULIA: 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: Huh! 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 always, 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" 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?

JULIA: [laughs]

JAD: 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: 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. 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. [laughs]

JAD: All right.

JULIA: Is that cool?

JAD: 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. Okay, now for the show.

[RADIOLAB INTRO]

JAD: Hey, I'm Jad Abumrad.

LATIF NASSER: And I'm Latif Nasser.

JAD: This is Radiolab. And you have something for me today, yes?

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

JAD: Okay.

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

JAD: Wow!

LATIF: Yeah. It is the mystery of the First Amendment. "Congress shall make no law abridging the freedom of speech or of the press," right? That's the thing.

JAD: Right.

LATIF: But ...

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

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

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

THOMAS HEALY: Excited to be here.

LATIF: 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.

LATIF: 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: So Healy 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.

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: 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.

JAD: Hmm.

LATIF: 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: 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: 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: So it kind of failed the test. [laughs]

THOMAS HEALY: It did fail the test.

LATIF: And, like, you see after that, like, a hundred 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: 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: Well, it turns out, according to Healy, those views came—basically, we got those views because of one guy—Oliver Wendell Holmes.

[ARCHIVE CLIP: "Magnificent" is the word for Oliver Wendell Holmes.]

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

[ARCHIVE CLIP: 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: 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: 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 names: Oliver, Wendell and Holmes.

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

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

LATIF: 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: 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: 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: Mustache, right? He has a great mustache.

THOMAS HEALY: Yes.

LATIF: Great mustache.

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

LATIF: 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.

JAD: Huh!

LATIF: And it happened, that switch happened at a very particular moment in his life. So 1917, World War I is happening.

[NEWS CLIP: And in Washington, the draft is invoked. President Wilson draws the first number.]

LATIF: And ...

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

LATIF: Congress passed something called the Espionage Act.

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

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

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

LATIF: 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: 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.

JAD: Hmm.

LATIF: Like, "Look. We are in the middle of a war. You cannot ...

JAD: Shut your damn mouth.

LATIF: ... 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: [laughs] That's like his bumper sticker.

THOMAS HEALY: Exactly.

LATIF: 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: 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: 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: 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: 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. And if there's an epidemic ...

LATIF: 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: For the greater good.

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

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

THOMAS HEALY: Right.

JAD: Hmm.

LATIF: 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?"

LATIF: Had he said this sort of thing ever?

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

JAD: What happened?

LATIF: Right. Exactly.

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

LATIF: 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: Right. Right.

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

JAD: [laughs] You're so ridiculous.

LATIF: 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: 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: [laughs]

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

LATIF: 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.

JAD: Wow!

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

JAD: That's great.

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

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

LATIF: Well, 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, DC.

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

THOMAS HEALY: Felix Frankfurter.

LATIF: The editors of The New Republic magazine.

THOMAS HEALY: Herbert Croly and Walter Lippmann.

LATIF: 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, DC, called the House of Truth.

LATIF: The House of Truth. Wow!

THOMAS HEALY: The House of Truth.

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

THOMAS HEALY: And debate truth with them.

LATIF: 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: 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—Holmes was pretty old.

LATIF: 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: [laughs]

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

LATIF: Fuddy-duddies.

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

LATIF: 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: 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: 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: How did they feel about his stance ...

LATIF: Okay.

JAD: ... on the libelous speech stuff?

LATIF: Great question. They were not fans.

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

LATIF: Really?

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

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

JAD: Hmm.

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

LATIF: Kind of in a huff.

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

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

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: 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: They were all scattered around. Some were in English. Some were in Yiddish because it's, like—it's the Lower East Side, so there would have been—at that time, there were, like, a lot of Russian Jewish emigres, like, in that area. The pamphlets basically say, "Workers, wake up! The president is shameful and cowardly and hypocritical and a plutocrat. And right now, he's fighting Germany, whom we hate, but next after that, he's gonna go for newly communist Russia, where you guys are from. And so if you don't stop working, especially those of you who are working in factories, who are making bullets and bombs ...

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

LATIF: So quit it.

THOMAS HEALY: Go on strike.

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

THOMAS HEALY: They were Russian immigrants who were anarchists.

LATIF: Three men, one woman.

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

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

LATIF: Oh, wow!

THOMAS HEALY: ... Frankfurter were there.

LATIF: 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 gonna let his friend get publicly stoned, basically? So he's in this spot. And well, guess what he does?

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

LATIF: So he does not write the letter.

JAD: No?

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

JAD: Oh!

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

JAD: Oh, wow.

LATIF: 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.

JAD: Oh, wow!

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

JAD: Whoa, that's beautiful.

LATIF: Really beautiful.

JAD: Yeah.

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: And over the next decade or so ...

[ARCHIVE CLIP, Oliver Wendell Holmes: A great court ...]

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

[ARCHIVE CLIP: The First Amendment was about the marketplace of ideas.]

LATIF: Not just in the courts ...

[ARCHIVE CLIP: School is supposed to be the ultimate marketplace of ideas.]

LATIF: ... but also beyond it.

[ARCHIVE CLIP: The answer is more speech, not less.]

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

[ARCHIVE CLIP: That is not how the marketplace of ideas works.]

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

[ARCHIVE CLIP: No matter how offensive, repugnant, repellent language or imagery ...]

LATIF: ... like, what it lets in the room ...

[ARCHIVE CLIP: You know what we should do with Nazis? We should defeat them in the marketplace of ideas.]

LATIF: ... or how you even find it ...

[ARCHIVE CLIP: I don't really know where that is.]

[laughter]

LATIF: ... the metaphor that has propped up our notion of free speech for the last hundred years just starts to fall apart. And we'll get to that right after this break.

[LISTENER: Hi, my name is Rachel Mellela, and I'm calling from Alice Springs, Northern Territory, Australia. Radiolab is supported in part by the Alfred P. Sloan Foundation, enhancing public understanding of science and technology in the modern world. More information about Sloan at www.sloan.org.]

[JAD: Science reporting on Radiolab is supported in part by Science Sandbox, a Simons Foundation initiative dedicated to engaging everyone with the process of science.]

JAD: Jad.

LATIF: Latif.

JAD: Radiolab.

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

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

LATIF: 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 ...

JAD: Exactly.

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

JAD: 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.

LATIF: Right.

JAD: 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: 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.

JAD: Right.

LATIF: 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: Shouted down and shamed, and ...

LATIF: ...Shouted down and shamed, or spread and—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: So I talked to this data and marketing researcher.

SINAN ARAL: Sinan Aral. Professor, MIT.

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

SINAN ARAL: Snopes, PolitiFact, TruthOrFiction.

LATIF: Factcheck.org.

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

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

SINAN ARAL: Politics, business.

LATIF: All kinds of stuff.

SINAN ARAL: .Science, entertainment.

LATIF: Natural disasters.

SINAN ARAL: Terrorism and war.

LATIF: And of all the stories they looked at.

SINAN ARAL: Some were true.

LATIF: And some were false.

SINAN ARAL: Then we went to Twitter.

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

SINAN ARAL: Lots of branches.

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

JAD: Well, that does not surprise me, not even a little bit. But—well, okay. See, now I'm sort of coming back to Holmes.

LATIF: Yeah.

JAD: 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.

LATIF: Right.

JAD: Right? Or any of us, frankly.

LATIF: Right.

JAD: 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: 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: ... a writer, blogger.

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

JAD: 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: So the intersection between technology and sociology.

LATIF: Yeah.

JAD: 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: This is before the Capitol insurrection.

LATIF: Yeah.

JAD: 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: 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: Yeah.

JAD: 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: 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: 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: 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: 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: 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: 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: 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: 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.

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

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

LATIF: Right.

ZEYNEP TUFEKCI: It's a small, little corner. But I thought, if I'm gonna have my little corner, I am going to recreate the battle of ideas in a good way.

JAD: 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: Well, okay. So let me—let me counter that now.

JAD: Okay. Please.

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

NABIHA SYED: Hello!

LATIF: Hey!

NABIHA SYED: How are you?

LATIF: Good. Does this work?

LATIF: 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: Oh, the Steele dossier?

LATIF: Yeah.

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

LATIF: 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 gonna join it.

LATIF: 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: 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: [laughs]

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

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

NABIHA SYED: Laissez faire.

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

NABIHA SYED: It's not the only one.

LATIF: 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: 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: 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: 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: [laughs]

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

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

LATIF: And so Nabiha's feeling about all of this is, like, if we're gonna 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 gonna focus on information health, not just the right of someone to speak.

JAD: Although, it's interesting, like, it doesn't negate the metaphor.

LATIF: Uh-huh.

JAD: The problem is the metaphor is so beautiful, it distracts you from those key questions, right?

LATIF: It totally does.

JAD: 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. Okay? 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: 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: Facebook, unfortunately.

LATIF: ... being like, we don't—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 so I went back to Healy.

LATIF: Hey, Thomas.

THOMAS HEALY: Hey.

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

THOMAS HEALY: Yeah, I actually do.

LATIF: And the first thing he said was, "Okay, yeah. 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: Because you're not—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: Yeah. [laughs]

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

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

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

JAD: Okay. Okay.

LATIF: 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: 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 ...

LATIF: [laughs]

NABIHA SYED: ... I'm working on it.

LATIF: [laughs]

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

JAD: Email us at radiolab [at] wnyc [dot] org.

LATIF: Yeah. Email us. Tweet at us—but 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: I'm Jad Abumrad.

LATIF: I'm Latif Nasser.

JAD: Thanks for listening.

[LISTENER: Hi, this is Megan Moore, calling from Kansas City, Missouri. 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.]

 

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