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Justice Holmes & the Marketplace of Ideas

Justice Holmes & the Marketplace of Ideas

Dear Reader — 

Imagine if our president, upon entry into a controversial foreign conflict, were to request that Congress send him a bill giving the federal government power to censor the press and to punish acts of interference with the war effort. 

After Woodrow Wilson made such a request in 1915, Congress ultimately acquiesced and, on June 15, 1917, passed the Espionage Act. It did not include the provision about press censorship — some in Congress objected on constitutional grounds — but President Wilson signed the bill anyway, despite his insistence that “authority to exercise censorship over the press … is absolutely necessary to the public safety.”

Two years later, the Supreme Court upheld this law in Schenck v. United StatesWriting for the majority, Oliver Wendell Holmes Jr. laid out his famous “clear and present danger” test to determine when it is lawful for the government to restrict citizens’ First Amendment freedoms. In Schenck, the court determined that the defendants — a couple socialists who distributed fliers urging men to resist the draft — posed such a danger and so could be punished. 

It is an irony of history that in another Supreme Court case that very year concerning the Espionage Act, Holmes penned some of the most influential lines defending the freedom of speech in American legal history. In Abrams v. United States, the Supreme Court upheld an amendment to the law, known as the Sedition Act of 1918. Holmes dissented, famously writing: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” 

Holmes did not believe his dissent in Abrams was inconsistent with his opinion in Schenck. In any case, it was Holmes’s dissenting opinion that ultimately came to shape our understanding of First Amendment rights. Subsequent case law would vindicate Holmes’s defense of free speech, and his metaphor of a marketplace of ideas would lodge itself firmly into the vernacular of our public discourse. 

It is another irony of history that Holmes himself — one of those most responsible for the modern American understanding of free speech — was skeptical of the philosophy of natural rights. (He called a right “the imagination of a substance supporting the fact that the public force will be brought to bear upon those who do things to contravene it.”) In his jurisprudence, influenced by the American philosophical tradition of pragmatism, Holmes sought to replace the moral language of rights — which he thought engendered confusion — with a more functionalist approach. Hence the “marketplace of ideas.”

Today, we are accustomed in our own debates about free speech to pit liberty against the common good. Permitting the individual’s freedom of expression is typically thought to be in tension, at least potentially, with social cohesion — and thus a kind of concession to the individual on the part of the majority. Holmes’s view was almost the inverse. He saw free speech (and rights more generally) as arising from collective practice. For him, free speech was not worth protecting despite its potentially harmful consequences to the group but rather because of its salutary social effects. As Louis Menand puts it: 

We do not (on Holmes’s reasoning) permit the free expression of ideas because some individual may have the right one. No individual alone can have the right one. We permit free expression because we need the resources of the whole group to get us the ideas we need.

This is what lay behind Holmes’s belief that “the ultimate good desired is better reached by free trade in ideas.”

Whatever one thinks of his marketplace metaphor (or his philosophy more generally), Holmes’s defense of our constitutional protections — and free speech in particular — as contributing to the common good is worth revisiting today, some one hundred years on. 

These are some of the many issues lately taken up in our pages. Below you will find just a few highlights.

— M. Anthony Mills, Managing Editor | RealClear Media Group 

*** 

McConnell Is the Longest-Serving GOP Leader. But Not the Most Consequential. James Wallner contends that the Senate majority leader’s real legacy is replacing the art of deliberation with the aim of winning congressional elections. 

Net Neutrality: To Deal or Not to Deal. Bill Lucy urges Democrats to work with Republicans on a legislative solution to the contentious issue.

Why a Delegation Skeptic Is Suspicious of the REINS Act. Philip A. Wallach explains why one legal expert does not believe a recent effort to bring administrative agencies back under Congress’s control will achieve its goal. 

Despite G-7 Tiff, U.S. and Canada Cooperate on Regulatory Reform. Sean Speer writes that the current “political theater” obscures the ongoing work between the two governments on matters of shared interest.

The Bad News on Entitlements Piles Up. James C. Capretta considers the takeaway from a new report released by the Social Security and Medicare trust funds. 

On Technology: This Time It’s Not Different. In RealClearBooks, Mark P. Mills argues that the current wave of automation will ultimately mean more jobs and prosperity, not less. 

America’s Mayors Should Not File Copycat Climate Suits. In RealClearEnergy, Phil Goldberg urges public officials to focus on legislation, rather than litigation, to formulate energy and emissions policy.

Why the AMA and Everyone Else Should Oppose Assisted Suicide. T. Brian Callister makes his case in RealClearHealth.

The Answer to School Violence Is Social-Emotional Learning. In RealClearEducation, Stanley Buchesky asserts that schools should implement programs to address the root causes of violence.

Living Into Fatherhood. In RealClearReligion, Loren D. Marks & David C. Dollahite offer takeaways from three decades of interviews with 250 diverse fathers about the “challenges and blessings” of that role.

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