Latif Nasser (2:48)

Who wrote a book about Oliver Wendell Holmes.

Thomas Healy (2:50)

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

Latif Nasser (2:56)

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.

Thomas Healy (3:06)

And sort of an imposing Figure, piercing blue eyes. He had this sort of shock of very thick white hair on his head.

Jad Abumrad (3:13)

Mustache. Right. He has a great mustache.

Thomas Healy (3:14)

Yes, great mustache that expanded out past the edges of his face.

Latif Nasser (3:19)

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

Jad Abumrad (3:47)

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

Thomas Healy (3:53)

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

Latif Nasser (3:59)

Congress passed something called the Espionage Act.

Thomas Healy (4:02)

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

Latif Nasser (4:06)

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

Thomas Healy (4:13)

Anything that was critical of the form of the United States government. Government or of the president. Anything that was disloyal or scurrious, which.

Latif Nasser (4:23)

Covered pretty much everything.

Thomas Healy (4:25)

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 (4:32)

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

Thomas Healy (4:34)

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

Latif Nasser (4:40)

Speeches against the draft, or people who.

Thomas Healy (4:42)

Said that the war was being fought to line the pockets of. Of J.P. morgan.

Latif Nasser (4:47)

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, Froerk versus United States, Debs versus United States.

Thomas Healy (4:59)

And the court upheld these convictions saying.

Latif Nasser (5:02)

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 (5:13)

They're pretty dismissive of free speech.

Latif Nasser (5:15)

Like, look, we are in the middle of a war. You cannot shut your damn mouth. Joke around. Shut your mouth, otherwise you're going to prison.

Thomas Healy (5:22)

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 (5:32)

It's like his bumper sticker.

Thomas Healy (5:33)

Exactly.

Latif Nasser (5:34)

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

Thomas Healy (5:42)

That experience, that had a huge effect on him.

Latif Nasser (5:46)

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 (5:58)

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

Latif Nasser (6:01)

He almost died himself.

Thomas Healy (6:02)

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 (6:13)

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.

Thomas Healy (6:37)

Happening, 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 (6:46)

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

Thomas Healy (6:53)

He made the analogy to vaccination. If there's an epidemic, which for them.

Latif Nasser (6:58)

Like us, was probably top of mind because the Spanish flu had just happened.

Thomas Healy (7:02)

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

Latif Nasser (7:17)

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.

Thomas Healy (7:57)

Right.

Latif Nasser (7:58)

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

Thomas Healy (8:14)

No, this is. No, he hadn't. What happened?

Latif Nasser (8:17)

Right, exactly.

Thomas Healy (8:18)

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

Latif Nasser (8:25)

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 (8:42)

Right, right.

Latif Nasser (8:43)

So really the question is, if you boil it down into three words, the three words are, what up, Holmes? Ridiculous. So, so In a way, it's like, it's a mystery of one man, but it's, it's a mystery that has this ripple effect into kind of the, the, 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.

Thomas Healy (9:12)

Holmes laid the groundwork for our modern understanding of free speech.

Latif Nasser (9:18)

So this 180 in Holmes 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 (9:33)

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.

Latif Nasser (9:46)

Healy tracked each of those days in that year and a half, around those eight months. Right. And he microscopically pours over Holmes life, including what Holmes was doing and the.

Thomas Healy (10:01)

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

Latif Nasser (10:06)

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

Thomas Healy (10:17)

That's great.

Latif Nasser (10:17)

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

Thomas Healy (10:22)

Wow.

Jad Abumrad (10:22)

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

Latif Nasser (10:29)

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

Thomas Healy (10:37)

Close with a group of young progressive intellectuals in Washington D.C. he had a.

Latif Nasser (10:42)

Group of very young friends, these brilliant progressive legal scholars. Among them was future Supreme Court Justice Felix Frankfurter, the editors of the New.

Thomas Healy (10:53)

Republic magazine, Herbert Crowley and Walter Lippmann.

Latif Nasser (10:57)

This young socialist named Harold Lasky, who at the age of 24 was already teaching at Harvard.

Thomas Healy (11:03)

And this group, they all gathered in this house in Washington D.C. called the House of Truth.

Latif Nasser (11:07)

The House of Truth. Wow.

Thomas Healy (11:09)

The House of Truth.

Latif Nasser (11:10)

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

Thomas Healy (11:15)

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

Latif Nasser (11:22)

And he would like play cards with.

Thomas Healy (11:23)

Them and debate truth with them.

Latif Nasser (11:26)

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.

Thomas Healy (11:39)

Holmes loved to talk to People he loved to be challenged. He loved debate.

Latif Nasser (11:44)

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 (11:54)

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

Latif Nasser (11:58)

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

Thomas Healy (12:01)

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

Latif Nasser (12:07)

Duddies.

Thomas Healy (12:08)

Yeah. And all of these young men, they worshiped Holmes.

Latif Nasser (12:11)

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

Thomas Healy (12:16)

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

Latif Nasser (12:18)

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.

Thomas Healy (12:30)

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 la.

Latif Nasser (12:39)

Write letters back to him saying stuff.

Thomas Healy (12:40)

Like yours affectionately or yours always. And they would talk about how much they loved him.

Jad Abumrad (12:45)

How did they feel about his stance?

Latif Nasser (12:48)

Okay.

Jad Abumrad (12:49)

On the libelous speech stuff?

Latif Nasser (12:51)

Great question. They were not fans.

Thomas Healy (12:54)

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.

Latif Nasser (13:06)

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

Thomas Healy (13:12)

The New Republic criticizing his opinion in.

Latif Nasser (13:15)

The Debs case, which, again, was one of those earlier three cases. So they're knocking him publicly.

Thomas Healy (13:20)

And Holmes was so worked up by it that he sat down and he.

Latif Nasser (13:24)

Wrote a letter, kind of in a.

Thomas Healy (13:25)

Huff, to the editor of the New.

Latif Nasser (13:26)

Republic, defending himself, essentially saying, you know, again, look, there were lives on the line. There was a war happening, a draft happening, and he's, like, about to send it to the magazine, and then he, like, pulls back and he's like, no, no, no, I'm not gonna do it.

Thomas Healy (13:40)

He thinks maybe it's not such a 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 (13:49)

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. They 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 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.

Thomas Healy (14:46)

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

Latif Nasser (14:54)

So quit it.

Thomas Healy (14:56)

Go on strike.

Latif Nasser (14:57)

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

Thomas Healy (15:00)

They were Russian immigrants who were anarchists.

Latif Nasser (15:03)

Three men, one woman.

Thomas Healy (15:05)

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

Latif Nasser (15:10)

They're convicted under the Espionage act, and the case ultimately makes its way to the Supreme Court in the fall of.

Thomas Healy (15:18)

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

Latif Nasser (15:23)

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 (15:39)

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

Latif Nasser (15:44)

One of Holmes 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.

Thomas Healy (15:59)

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

Latif Nasser (16:07)

Harvard to get Lasky fired from his job.

Thomas Healy (16:09)

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 Frankfurter were there.

Latif Nasser (16:18)

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

Jad Abumrad (17:09)

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

Latif Nasser (17:13)

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.

Jad Abumrad (17:42)

Oh, wow.

Latif Nasser (17:43)

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

Thomas Healy (17:50)

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

Latif Nasser (17:57)

Here's what he wrote.

Thomas Healy (17:58)

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 (18:04)

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

Thomas Healy (18:10)

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

Latif Nasser (18:14)

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

Thomas Healy (18:19)

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 (18:30)

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

Thomas Healy (18:38)

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 (18:52)

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

Jad Abumrad (19:03)

Whoa. That's beautiful.

Latif Nasser (19:05)

Really beautiful.

Jad Abumrad (19:06)

Yeah, yeah, absolutely.

Thomas Healy (19:07)

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 (19:15)

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

Thomas Healy (19:20)

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

Latif Nasser (19:29)

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.

Thomas Healy (19:48)

It in this metaphor, the marketplace of.

Latif Nasser (19:51)

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. The school is supposed to be the ultimate marketplace of ideas, but also beyond it. The answer is more speech, not less. But as soon as you scratch the.

Rebecca Rand (20:11)

Surface, that is not how the marketplace.

Latif Nasser (20:13)

Of ideas works and start to think about how the marketplace actually works, no matter how offensive, repugnant, repellent language or imagery like what it lets in the room.

Thomas Healy (20:23)

You know what we should do with Nazis? We should defeat them in the marketplace.

Latif Nasser (20:27)

Of ideas, or how you even find it.

Thomas Healy (20:31)

I don't really know where that is.

Latif Nasser (20:35)

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.

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Brittany Luce (23:06)

Ever wondered why some trends are just suddenly everywhere? Newsflash. Nothing gets popular by accident. I'm Brittany Luce, and on the It's Been a Minute podcast, I take the things you and I are both obsessing over and show you the invisible forces behind the scenes that make us love it or hate it. Be smarter about what you're consuming. Listen to the It's Been a Minute podcast today.

Latif Nasser (23:34)

Chad Latif, Radiolab and we're back freely talking about talking freely and Oliver Wendell Holmes and the marketplace of ideas and.

Jad Abumrad (23:45)

Just what a powerful metaphor that has become for us.

Latif Nasser (23:48)

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 self descented. Exactly. We wouldn't have the free speech we have today.

Jad Abumrad (24:11)

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 Nasser (24:19)

Right.

Jad Abumrad (24:19)

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 (24:29)

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

Radiolab Station Announcer (25:18)

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 (25:29)

So I talked to this data and.

Radiolab Station Announcer (25:30)

Marketing researcher, Sinan Aral, professor, mit.

Latif Nasser (25:35)

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?

Radiolab Station Announcer (25:48)

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

Latif Nasser (25:56)

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

Radiolab Station Announcer (25:59)

Snopes, Politifact, truth or fiction, factcheck.org, urban legends, and so on and so forth.

Latif Nasser (26:06)

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

Radiolab Station Announcer (26:10)

About anything, politics, business, all kinds of stuff. Science, entertainment, natural disasters, terrorism and war.

Latif Nasser (26:18)

And of all the stories they looked at, some were true and some were false.

Radiolab Station Announcer (26:22)

Then we went to Twitter and they.

Latif Nasser (26:24)

Found for each story, the first tweet, basically its entry into the marketplace.

Radiolab Station Announcer (26:29)

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

Latif Nasser (26:41)

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.

Radiolab Station Announcer (26:51)

They look like trees spreading out.

Latif Nasser (26:54)

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

Radiolab Station Announcer (27:00)

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

Latif Nasser (27:08)

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

Radiolab Station Announcer (27:13)

Lots of branches on top of that.

Latif Nasser (27:15)

They could see just how fast the tree grew.

Radiolab Station Announcer (27:17)

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 (27:26)

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.

Radiolab Station Announcer (27:37)

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

Latif Nasser (27:43)

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

Radiolab Station Announcer (27:49)

It took the truth approximately six times as long as falsity to reach 1500 people. So falsehood was just blitzing through the Twitter sphere. You know, we're in a state now where the truth is just getting trounced by falsehood at every turn.

Latif Nasser (28:14)

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

Jad Abumrad (28:18)

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

Latif Nasser (28:23)

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 too. It's like we're in this whole new, more complicated phase of misinformation online. But I do think even given all of that, this next conversation that I'm about to play for you from the same episode totally holds up. It reframes the conversation about truth and free speech, which I think is half the battle to finding a way out of this mess.

Nabiha Syed (29:07)

Hello.

Latif Nasser (29:08)

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.

Nabiha Syed (29:27)

And I'm the president of the Markup, a nonprofit news organization that investigates big tech.

Latif Nasser (29:32)

And one of the first things she told me was that one of the problems with the marketplace of ideas is.

Nabiha Syed (29:37)

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.

Latif Nasser (29:52)

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

Nabiha Syed (29:59)

11, you know, not that all things in the American Muslim experience boil down to a single day in 2001, but to the extent that, like, the aftermath of 911 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 (30:17)

You know, like, as we all know, it's like Muslim terrorists, blah, blah, blah.

Nabiha Syed (30:21)

Blah, that bore no relationship to my Orange County Pakistani, like, Kardashian esque life, right? Like, I just didn't. I was like, who are these people who this?

Latif Nasser (30:32)

And she's like, and I never. My people never got the mic. It's about power. It's about megaphones.

Nabiha Syed (30:38)

But here's the thing to remember. Like, the marketplace of ideas was one theory, right? It's the. It's the idea that we glommed onto, and it's the idea that really took off because a variety of social platforms were like, yep, that's the one.

Latif Nasser (30:50)

Because it was this sort of idealistic metaphor, but also because it was the.

Nabiha Syed (30:55)

Most convenient, laissez faire, set it and.

Latif Nasser (30:58)

Forget it sort of model for free speech.

Nabiha Syed (31:01)

But it's not the only one.

Latif Nasser (31:03)

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 (31:21)

You should know, is the well in your neighborhood poisoning you? Yes or no?

Latif Nasser (31:26)

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

Nabiha Syed (31:31)

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

Latif Nasser (31:36)

And what was interesting to me about this view is, is unlike Holmes's argument, and for that matter, unlike the, you know, attitude of this is America, I can say whatever I want.

Nabiha Syed (31:46)

This view conceives of, like, the rights of a listener, not just the rights of a speaker.

Latif Nasser (31:51)

The way that we do things now.

Nabiha Syed (31:52)

We focus a lot on who gets to talk, right? And everyone's talking somehow, blah, blah, magic happens. We don't ever talk about the listener. Like, if you're listening to all these people talk, do you have a right to accurate information? And you see glimmers of that throughout American history.

Latif Nasser (32:10)

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

Nabiha Syed (32:18)

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

Latif Nasser (32:23)

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 (32:33)

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 (32:47)

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.

Latif Nasser (32:58)

It totally does.

Jad Abumrad (32:59)

But those questions can be used to repair the metaphor into something that's actually functional. Can't you just say, the marketplace of ideas Asterisks. 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 Nasser (33:29)

Yeah. I mean, I think that's good. But then the question is, like, who regulates it? How do we regulate, right now the people who's regulated? Like, we have the courts with, like, Citizens United being, like, we don't. Yeah. And now it's going to be Facebook, and the CEO of Twitter is the one regulating it.

Thomas Healy (33:42)

Doesn't make sense.

Latif Nasser (33:43)

Like, who has that power and how do we negotiate over that power? Which sort of just feels like we're back at square one. Right. Like. Like we're back to the original problem, like, who should regulate speech? And then. And then. So I went back to Healy. Hey, Thomas. Just to put all this in front of him, see if he had any thoughts.

Thomas Healy (33:59)

Yeah, I actually do.

Latif Nasser (34:00)

And the first thing he said was, okay, yes, the marketplace idea, the way it works now, it's broken. And. And it's. In general, it's just. It's an odd way to think about.

Thomas Healy (34:11)

Speech, this kind of weird, you know, commercial understanding of free speech. What about thinking about us all as. As scientists?

Latif Nasser (34:19)

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

Thomas Healy (34:24)

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

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Yeah.

Latif Nasser (34:30)

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

Thomas Healy (34:36)

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

Latif Nasser (34:40)

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

Thomas Healy (34:44)

He writes that, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

Latif Nasser (34:52)

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

Thomas Healy (34:56)

What Holmes could have possibly meant by that.

Latif Nasser (34:58)

And he's come to the view that. That Oliver Wendell Holmes was probably acutely aware through all of his experiences that reckoning with free speech, when you're trying to build a democracy, it doesn't end.

Thomas Healy (35:12)

We don't. We don't win the game. Right. The whole point of free speech is not that, oh, we've got free speech now. Democracy is easy. No, democracy is hard.

Latif Nasser (35:21)

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 (35:33)

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

Latif Nasser (35:41)

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 (35:50)

And so that's another way to think.

Latif Nasser (35:52)

About free speech that we constantly have to be rethinking what we even mean by free speech. Okay, 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 (36:09)

The marketplace of ideas has been such a beautiful idea, and it served us for about a century. And maybe it's time to think about what a different theory could look like.

Latif Nasser (36:18)

So what's the better theory? I mean, now, now is the time for you to kind of lay down this bombshell of this new theory. What? What is it?

Nabiha Syed (36:23)

Oh, cool. Yeah, no, I don't have it yet, but I'm working on it.

Latif Nasser (36:39)

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

Jad Abumrad (36:47)

Email us@radiolabnyc.org yeah, email us.

Latif Nasser (36:52)

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 Sayed, you can find her@the markup.org. obviously, this. This whole episode started with Thomas Healy's book the Great Descent, and he actually has a new book out called Soul City. This episode was produced by Sara Khari, 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 (37:31)

I'm Jad Abumrad.

Latif Nasser (37:33)

I'm Latif Nasser.

Jad Abumrad (37:34)

Thanks for listening.

Rebecca Rand (37:36)

My name is Rebecca and I'm from Brooklyn. And here are the staff credits. Radiolab is hosted by Lulu Miller and Latif Nasser. Soren Wheeler is our executive editor. Sarah Sandbach is our executive director. Our managing editor is Pat Walters. Dylan Keefe is our director of sound design. Our staff includes Simon Adler, Jeremy Bloom, W. Harry Fortuna, David Gable, Maria Paz Gutierrez, Sindhu Nyan Sabanan, Matt Kilty, Mona Magavgar, Annie McKeown, Alex Neeson, Sara Khari, Anissa Vitse, Arianne Wack, Molly Webster, and Jessica Jung, with help from Rebecca Rand. Our fact checkers are Diane Kelly, Emily Krieger, Enna Bohol Mazini, and Natalie Middleton.

Latif Nasser (38:23)

Hi, I'm Victor from Springfield, Missouri. Leadership. Support for Radiolab's science programming is provided by the Simons foundation and the John Templeton Foundation. Foundational support for Radiolab was provided by the Alfred P. Sloan Foundation.

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