What Up Holmes?

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0:19Hey, it's Latif. This is Radiolab. So just last week, here on the show, we had a conversation between our own Simon Adler and law professor Kate Klonick, talking about how the idea of free speech in this country is playing out, and often not playing out, online right now. but these questions of free speech in the United States go back literally to the beginning. It's the first amendment for crying out loud. And as we argue over what people should be seeing on these apps, on social media apps, it took me back to a story we did a couple years ago that feels like it gets to the origin of the modern notion of free speech.

1:08In particular, the idea that there should be an open marketplace of ideas, right? That's the reason any of these social media platforms are allowed to be as wild as they are, because they are theoretically open marketplaces of ideas. And as I told our then host, Jad Abumrad, surprisingly, that whole idea of the marketplace of ideas came from one moment, and even more surprisingly, from one guy.

1:42Oliver Wendell Holmes. Magnificent is the word for Oliver Wendell Holmes. Regarded today as the greatest Supreme Court justice in our history. That story was told to me by this guy, Thomas Healy. Professor of law at Seton Hall University School of Law. Who wrote a book about Oliver Wendell Holmes. He essentially laid the groundwork for our modern understanding of free speech. And, you know, Holmes, he's from this wealthy Boston family, fought in the Civil War on the Union side. And by the time he's sitting on the Supreme Court, he's in his 70s and sort of an imposing figure. Piercing blue eyes.

2:18He had this sort of shock of very thick white hair on his head. Mustache, right? He has a great mustache. Yes. Great mustache. That expanded out past the edges of his face. But the most important thing to know about Oliver Wendell Holmes is that he was stridently anti-free speech as we know it today. Until he changed his mind. And it happened, that switch happened at a very particular moment in his life. So, 1917, World War I is happening. And in Washington, the draft is invoked. President Wilson draws the first number. And Congress was worried that if people criticized the draft, then they wouldn't be able to raise an army.

3:08Congress passed something called the Espionage Act. Made it a crime to say things that might obstruct the war effort. Part of it had to do with spy stuff, but there was another part that made it a crime to say things. Anything that was critical of the form of the United States government or of the president, anything that was disloyal or scurious. Which covered pretty much everything. It made it a crime to have a conversation about whether the draft was a good idea, about whether the war was a good idea. And so all of a sudden, people were getting thrown in jail. People who forwarded chain letters that were critical of the war.

3:48People who gave speeches against the draft. Or people who said that the war was being fought to line the pockets of J.P. Morgan. And several of these cases actually made it all the way up to the Supreme Court. So in March 1919, three different cases come up in quick succession. Schenck versus United States, Frowork versus United States, Debs versus United States. And the court upheld these convictions. 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. They're pretty dismissive of free speech.

4:24Like, look, we are in the middle of a war. You cannot. Shut your damn mouth. Joke around. Shut your mouth. Otherwise, you're going to prison. Absolutely. Yeah. He saw a sign that said, damn a man who ain't for his country right or wrong. And he wrote to a friend and said, I agree with that wholeheartedly. It's like his bumper sticker. Exactly. Now, Holmes had his reasons for believing that. A lot of them going back to his experiences fighting in the Civil War. That experience, that had a huge effect on him. Like he had these kind of two complicated feelings about it. One was that it was a war to end slavery.

5:01It was a righteous war. But at the same time, it was a brutal and barbaric fight. You know, he watched a lot of his young friends die. He almost died himself. He felt like he was an accidental survivor. He was part of the 20th Massachusetts Regiment, and at Gettysburg, the vast majority of the officers in his regiment were killed. It was so devastating. For him, it was unforgettable. Sort of forged him and made him who he was and really influenced the way he thought about the world. I mean, the war was like 50 years earlier, but he was still thinking about it. He still had his uniform hanging up in his closet and it was still stained with his blood.

5:44And so when World War I was happening. When people were out on the battlefield risking their life, it wasn't too much to ask people at home to support that. His argument was basically that the good of the country mattered more than one person's right to say what they want. He made the analogy to vaccination. If there's an epidemic. Which for them, like us, was probably top of mind because the Spanish flu had just happened. And you think that vaccination might stop the epidemic. You force people to get vaccinated against their will. You infringe on their liberty and you force them to get vaccinated.

6:21For the greater good. For the greater good. And he thought the same thing applied when it came to speech. Later on in his career, Oliver Wendell Holmes took this same argument to a pretty disturbing place, using it to support the practice of forced sterilization in Buck v. Bell. We actually did a whole episode about that case. But going back to speech, these three cases come to the Supreme Court. That's in March 1919, right? Then for some reason, eight months later, in November, there's another case, the Abrams case, very similar circumstances of the case, and he switches sides. Almost all the other justices are still agreeing with the conviction, but he writes a dissent.

7:06Right. 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 this? You're the same guy that nine months ago was like, lock up everybody? Had he said this sort of thing ever? No, this is no, he hadn't. What happened? Right, exactly. Why did he change his mind between the Debs case in March and the Abrams case in November? 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?

7:51Right. So really, the question is, if you boil it down into three words, the three words are what up, Holmes? You're so ridiculous. So in a way, it's like it's a mystery of one man, but it's a mystery that has this ripple effect into kind of the the what is now perceived to be like the quintessential freedom in in the land of the free. Because that dissent, that argument he made after he changed his mind, it's the reason why people like Healy say that Holmes laid the groundwork for our modern understanding of free speech. So this 180 in Holmes's head over the course of eight months, this is one of the biggest mysteries in the history of the Supreme Court.

8:35And Healy gets obsessed with this very specific question. Like, why did Holmes change his mind? Yeah, absolutely. And I basically tried to reconstruct every day in his life for about a year and a half time period. You're laughing, but I did. I had a spreadsheet with every day. In this spreadsheet, Healy tracked each of those days in that year and a half around those eight months. Right. And he microscopically pours over Holmes's life, including what Holmes was doing. And the letters he was writing, the books he was reading, he kept a log of every book that he read. Wow. He even reads the books that Holmes' friends are writing and reading just in case they had a conversation with Holmes.

9:26That's great. And like what possibly they could have said to Holmes that would have made him change his mind. Wow. So did he find something? Was there like a little smoking gun or something buried in all that data? Well. One thing he notices as he's digging into the daily doings of Oliver Wendell Holmes is that he became very close with a group of young progressive intellectuals in Washington, D.C. He had a group of very young friends, these brilliant progressive legal scholars. Among them was future Supreme Court justice. Felix Frankfurter. The editors of The New Republic magazine. Herbert Crowley and Walter Lippmann.

10:05This young socialist named Harold Lasky, who at the age of 24 was already teaching at Harvard. And this group, they all gathered in this house in Washington, D.C. called the House of Truth. The House of Truth. Wow. The House of Truth. It was a townhouse. It's like a little clubhouse for young progressives. And Holmes was a frequent visitor there. He would stop in on his way home from court and have a drink. And he would play cards with them. And debate truth with them. So it's like a kind of a funny pairing, like this nearly 80-year-old guy, like hanging out with these like young whippersnapper 20-somethings and like, yeah, just like laying down truth bombs.

10:47Holmes loved to talk to people. He loved to be challenged. He loved debate. 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. Those people were all dead by this point. Holmes was pretty old. The other members of the Supreme Court, he didn't really care for. He thought that they were all sort of stodgy and he didn't think that they were that smart. Funny duddies. Yeah. And all of these young men, they worshipped Holmes. They would write him fan letters and they would write articles about him in magazines.

11:24And so he sort of found a new group of friends. They actually they got so close that when it was Holmes's surprise 75th birthday party, his wife Fanny snuck a bunch of them in through the cellar for the for the birthday party. 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. And they'd write letters back to him saying stuff like yours affectionately or yours always. And they would talk about how much they loved him. How did they feel about his stance on the libelous speech stuff?

12:00Great question. They were not fans. This group essentially engaged in a kind of lobbying campaign over the course of a year, year and a half, to get Holmes to change his views about free speech. So in May of that year, so remember March is when he has those first opinions. In May, they publish an article in the New Republic. criticizing his opinion in the Debs case, which, again, was one of those earlier three cases. So they're knocking him publicly. And Holmes was so worked up by it that he sat down and he wrote a letter kind of in a huff to the editor of the New Republic defending himself, essentially saying, you know, again, look, there were lives on the line.

12:41There was a war happening, a draft happening. And he's like about to send it to the magazine. And then he like pulls back and he's like, no, no, no, I'm not going to do it. He thinks maybe it's not such a good idea to be commenting on this issue because he knows that the court has another case coming before it in the fall, the Abrams case. So in October of 1919, this case, the Abrams case, has oral arguments at the Supreme Court. Now, let me kind of hit pause on Holmes for a second and tell you about the Abrams case. So it was a Friday morning in 1918, and some random men who are on their way to work see a bunch of pamphlets on the sidewalk.

13:18They were all scattered around. Some are in English, Some are 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 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.

13:56That these weapons that these people were making were going to be used to kill their loved ones back home. So quit it. Go on strike. Some detectives get on the case. They find the culprits. They were Russian immigrants who were anarchists. Three men, one woman. They went on rooftops in lower Manhattan and threw these leaflets from the rooftops. They're convicted under the Espionage Act. And the case ultimately makes its way to the Supreme Court. In the fall of 1919, eight months after the earlier cases had been handed down by the court. It's a similar case to the ones before. And you'd imagine that Holmes just had that same old argument, like, you know, in his back pocket, ready to go.

14:41But Healy discovers that something happens right as the court is considering the Abrams case. Something happened to these young friends, in particular to Lasky and Frankfurter. One of Holmes's young friends, Harold Lasky, who's this socialist 24-year-old teaching at Harvard, he comes out in favor of a citywide police strike. So the police in Boston are going on strike. And to the conservative alumni at Harvard, this was just anathema. And so there was this effort at Harvard. To get Lasky fired from his job. There was a fundraising effort going on at Harvard, and a lot of the alums were saying they wouldn't give money as long as Lasky and Frank Furt were there.

15:27And he is like, if I had, if only I had a sort of a prominent Harvard alum who could stand up for me right now. And so he goes to Holmes and he's like, Holmes, they are about to fire me. He's like, please, can you write an article saying that I should be allowed to say this? And in doing so, you will save my job and my reputation. Right. So Holmes is in this really tough spot because on the one hand, should he write this letter, put his neck out? But he's already as a judge said the exact opposite. And as a soldier, he believes that no, like Lasky, shut up. Or should he stay quiet and stay consistent?

16:10But then he's going to let his friend get publicly stoned, basically. So he's in this spot. And well, guess what he does? I think I know what he's going to do. He's going to write the letter. He's going to help out Lasky. So he does not write the letter. No, he does not write the letter supporting Lasky. But instead, that same week, he writes this 12 paragraph dissent to the Abrams case. The Abrams case is about a young socialist. Do you know what I mean? Like, it's like Lasky is this young radical who's getting punished for something he said. And then at the same time, he has this case in front of him of young radicals who are getting arrested for something they said.

16:51Oh, wow. So he doesn't step in for his friend, but then he does step in for Abrams and company. So seven members of the court voted to uphold the convictions, but Holmes dissented. Here's what he wrote. It's short. It's 12 paragraphs. So the first thing he's saying is that we should be skeptical that we know the truth. When men have realized that time has upset many fighting faiths. We've been wrong before, and we're likely going to be wrong again. That the ultimate good desired is better reached by free trade and ideas. In light of that knowledge that we may be wrong, the best course of action, the safest course of action, is to go ahead and listen to the ideas on the other side.

17:39The best test of truth is the power of the thought to get itself accepted in the competition of the market. Those are the ideas that we can safely act upon. He says every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

18:12Wow, that's beautiful. Really beautiful. Yeah. Yeah, absolutely. And the other justices on the Supreme Court, they went to his house and they tried to talk him out of it. And he said, no, it's my duty. And over the next decade or so, when other free speech cases come up. Holmes continues to write very eloquent, passionate defenses of free speech. And gradually, the other members of the court start to listen. The great legal journalist Anthony Lewis, this is the way he writes it, those dissents, and in particular the Abrams dissent, quote, did in time overturn the old crabbed view of what the First Amendment protects.

18:50It was an extraordinary change, really a legal revolution. And in particular, it's because he wrapped it in this metaphor. The marketplace of ideas. That it caught on so quickly and widely. The idea of the marketplace of ideas exploded. The First Amendment was about the marketplace of ideas. Not just in the court. School is supposed to be the ultimate marketplace of ideas. But also beyond it. The answer is more speech, not less. But as soon as you scratch the surface. That is not how the marketplace of ideas works. And start to think about how the marketplace actually works. No matter how offensive, repugnant, repellent language or imagery.

19:29Like what it lets in the room. You know what we should do with Nazis? We should defeat them in the marketplace of ideas. or how you even find it. I don't really know where that is. The metaphor that has propped up our notion of free speech for the last 100 years just starts to fall apart. And we'll get to that right after this break.

20:03Chad. Latif. Radiolab. And we're back freely talking about talking freely and Oliver Wendell Holmes and the marketplace of ideas. And just what a powerful metaphor that has become for us. Right. And in a way, I do think that there's something so beautiful about the fact that this came out in a dissenting opinion that his fellow Supreme Court justices tried to quash. That's in a way it's its own argument. It's like the most persuasive evidence of all for the marketplace of ideas is that if Holmes hadn't himself dissented, we wouldn't have the free speech we have today. I love that, what you just said.

20:42I think that's beautiful. The way in which his argument won is itself proof of the very thing he's saying. Right. But the problem with the marketplace of ideas is that it expresses an ideal that is so much more powerful and beautiful than the reality. Well, so what's interesting is that Holmes's argument, it's a functional argument. It's in the barter, right, in the marketplace that the truth will rise to the top. This will function as a way to sift out the good ideas and the truth. So it's actually a measurable thing. Like we have marketplaces of ideas, like Twitter is a marketplace of ideas, right?

21:20Where things get, you know, shouted down and shamed. and shouted down and shamed or spread and and celebrated. And the amazing thing about Twitter is that you can see that happen. There's there's real data there about retweets and likes and whatever else that you could actually use it to test Holmes's idea. Like, does the truth do the good ideas actually rise to the top? That's exactly right. I mean, as we started to see fake news on Twitter and on Facebook, we realized we had the data to study this kind of question. So I talked to this data and marketing researcher. Sinan Aral, professor, MIT.

22:03A couple of years ago, he and some of his colleagues at MIT, they took a quantitative look at this exact question, like how do truths and falsehoods fare in the marketplace of Twitter? Every verified story that ever spread on Twitter since its inception in 2006, we captured it. They started by gathering up stories from a couple of fact-checking websites. Snopes, PolitiFact, Truth or Fiction, FactCheck.org, Urban Legends, and so on and so forth. And they just listed all the stories that those sites had fact-checked, like about anything. Politics, business. All kinds of stuff. Science, entertainment.

22:45Natural disasters. Terrorism and war. And of all the stories they looked at. Some were true. And some were false. Then we went to Twitter. And they found for each story the first tweet, basically its entry into the marketplace. And then we recreated the retweet cascades of these stories from the origin tweet to all of the retweets that ever happened. And so for each story, they ended up with a diagram that showed how it spread through the Twitterverse. And when you look at these diagrams. They look like trees spreading out. And the height and width of each tree would tell you how far and wide the information spread.

23:29Some of them are long and stringy, with just one person retweeting at a time. Some of them fan out. Tons of people retweeting the original tweet, then tons more people retweeting those retweets. Lots of branches. On top of that, they could see just how fast the tree grew. How many minutes does it take the truth or falsity to get to 100 users or 1 ,000 users or 10 ,000 users or 100 ,000 users? And Sinan says that when they analyzed and compared the breadth and the depth and the speed of growth of all those different tree diagrams, what he got was... The scariest result that I've ever uncovered since I've been a scientist.

24:12The trees of lies spread further, wider, and faster than the truth trees. It took the truth approximately six times as long as falsity to reach 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. So in this marketplace of ideas, the truth does not rise to the top. Well, that does not surprise me, not even a little bit. That's part of what we reported back in 2021. And listening back now, the way we were talking about it then feels almost quaint. Now that the platforms themselves have become more political, with the rise of better and easier to make deepfakes, and we just had the release of Sora 2.

25:11It's like we're in this whole new, more complicated phase of misinformation online. But I do think, even given all of that, this next conversation that I'm about to play for you from the same episode totally holds up. It reframes the conversation about truth and free speech, which I think is half the battle to finding a way out of this mess. Hello! Hey! This is my friend Nabiha Syed. How are you? Good. Does this work? And I called her because she knows more about the First Amendment than anyone else I know. She's an award-winning media lawyer and just someone who is really earnestly trying to imagine the best way forward.

25:57And I'm the president of The Markup, a nonprofit news organization that investigates big tech. And one of the first things she told me was that one of the problems with the marketplace of ideas is that there's... no reckoning for the fact that some people have bigger platforms than others, meaning their ideas get heard first. Their ideas also get heard more often. Their ideas are also, you know, surrounded by joiners who are like, that idea is popular. I'm going to join it. And part of it, she was saying like, look, like as a Muslim woman who grew up like right after 9-11. You know, not that all things in the American Muslim experience boil down to a single day in 2001.

26:34But 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. You know, like, as we all know, it's like Muslim terrorists, blah, blah, blah, blah. That bore no relationship to my Orange County Pakistani, like Kardashian-esque life. Right. Like I just didn't. I was like, who are these people? Who are they? And she's like, and I never my people never got the mic. It's about power. It's about megaphones. But here's the thing to remember, like the marketplace of ideas was one theory.