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Hey, this is Kai calling from Santa Clarita, California. Radiolab is supported by News of the World, the epic Western Adventure, starring Academy Award winner Tom Hanks. That deadline calls a towering piece of movie making available to Owen for the first time on Digital Now and arriving on four K Ultra HD Blu ray and DVD March. Twenty third. Thanks.

Listener supported WNYC Studios. Julia, Chad, hi. Hello, how are you? I'm good. Hey, Chad, 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 radio lab, extended family who has a great new project that is just out.

You may remember her from the RBG episode that we ran.

When you'd ask her a question, there would be silence is enough silence, Ginsburg. To make a person nervous and start trying to help her answer the question, or you might remember her from a mind bending trip she took to American Samoa. This is the only place in the world that is U.S. soil. And people who are born here are not citizens or just generally from more perfect or perfect. Our series about the Supreme Court.

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

It is so nice to hear your voice. Julia has a new project that is a collaboration between WNYC Studios and The Atlantic magazine, and it is called The Experiment.

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.

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 that's exciting.

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 to vaccinate and its legality.

So there was this pastor, a guy named Henning Jacobson, who he was living in the U.S. in 1994 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 is like, no, I'm not doing it.

I'm not going to pay your fine. It was a it was a fine that they had to pay.

And, you know, the Supreme Court basically said, like, tough luck, like you're going to have to pay the fine.

And we were just curious about this case in this moment. So one of our producers, Gabrielle.

Hi. Is this the Swedish Lutheran Church in Cambridge, just cold, called the church?

We haven't seen that in a very long time. But, yes, where the pastor used to work and the pastor who's there now, Pastor Lutron, picked up the phone.

I'm sure this is about vaccination. Yes. And it was just the best character.

He had thought so deeply about this man and was not an answer back.

And he describes this portrait of Pastor Jacobsen that's sitting in his office.

He looks like a, you know, like wild hair and wild beard, kind of. I think he was like kind of like a fire and brimstone sort of preacher. Dignified, I would say, dignified, sort of asking, what are you going to do with me? And I'm like, I don't know how.

I don't know, man, the pastor is 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?

Oh, my God. That's like a microcosm of the question we're all asking. I mean, how does he he says that, you know, he has this reflection about how he's kind of glad that Jacobsson 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 and it kind of allows him to preach humility. Oh. I mean, one of the beautiful things about about that I just speaking personally about Radiolab is watching people leave. Well, the leaving part of that sucks. That's the sucky part. But then after the sucky part, there's 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 Mopar, Farlam and Radiolab alum Tracy Hunt is working with you. So it's cool. I mean, do you do you feel like I what's what's the not self-serving way to ask this question?

I'm curious. Like, where do you feel?

How do you feel like the spirit of the show diverges from something like More Perfect or Radiolab?

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 the show.

And a lot of ways more perfect is 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 were getting bigger and weirder.

All right. Who is the cool? That is Julia Longoria from the new podcast The Experiment, a collaboration between your public radio and the Atlantic. It is an incredible podcast. I am subscribed. I hope you subscribe and you can do that wherever you get your podcasts. OK, now for the show. Wait, you're OK? You're listening to Radiolab Radio from WNYC. Hey, I'm Jad Abumrad, and I'm lots of Nassr, this is Radiolab, and you have something for me today.

Yes, yes.

So what I want to do is I want to tell you a mystery mystery that is centered on what makes America America. Wow. 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. Right. But it's been only one hundred years or less than one hundred years that we've understood free speech the way we do now. Before that, I describe it in my book as a largely unfulfilled promise.

So that's Thomas Healey, author, legal scholar, professor of law at Seton Hall University School of Law. Thank you so much for coming out to talk to us.

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. This was really shocking to me, that kind of before World War One, the First Amendment was a completely different thing. Is that am I getting that right? Yeah, absolutely.

The time that the First Amendment was ratified so clearly 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 would say that you didn't need to get a license to do that.

If you wanted to publish something, if you wanted to have a press, you didn't get licensed by the government to do that. You don't need to pay for a license to print what you want, which means the press was free in sort of the most boring, literal sense of that word. But it also meant that the government couldn't censor you by, like, charging you too much or not selling you a license, which was no small thing.

That was a big advance for freedom of speech. Well, there was no licensing system anymore.

You could say whatever you wanted, but it was unclear at that time whether it offered more like whether the First Amendment would protect you after you've said whatever you wanted to say.

And there was an early test of this. In 1798, the federalist government passed the Alien and Sedition Act.

And not long after that, there were actually newspaper editors who would say stuff against the government and just get tossed in jail. Yes. And the courts upheld it.

So it kind of failed the test. It did fail the test. And like you see after that, like 100 years of failed tests. Right. Every time the Supreme Court sees this variation on the 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 like that, that even that led to the insurrection at the Capitol.

Right.

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. Well, it turns out, according to Healy.

Those views came basically we got those views because of one guy. Oliver Wendell Holmes, magnificent is the word for Oliver Wendell Holmes, regarded today as the greatest Supreme Court justice in our history.

Here is a story as patriotic as the red, white and blue. He essentially lay the groundwork for our modern understanding of free speech.

And who was he? Actually, maybe I should start there. Well, Oliver Wendell Holmes, he was born in 1841, comes from this, you know, old establishment intellectual family in New England.

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

His name's Oliver Wendell. And homes are like fancy SHYMANSKY name.

They all could trace their lineage back to the 17th century. He went to Harvard. He went to Harvard Law School, fought in the civil war on the union side, of course. And by the time he's sitting on the Supreme Court, he's in his 70s and sort of an imposing figure.

He had this military bearing about him, this very like upright posture, piercing blue eyes. It had this sort of shock of very thick white hair on his head.

Mustache, right. He has a great mustache, 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.

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 and his change of mind became the whole country's change of mind.

And it happened that switch happened at a very particular moment in his life.

So.

1917, World War One is happening, and in Washington, the draft is invoked, President Wilson draws the first number and Congress is worried that if people criticize the draft, then they wouldn't be able to raise an army.

Congress 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 scurrilous, 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, people who gave speeches against the draft, or people who said that the war was being fought to line the pockets of JPMorgan.

And several of these cases actually made it all the way up to the Supreme Court. So in March 19, 19, three different cases come up in quick succession, Schenk versus United States froward vs. United States debs versus the United States.

And the court upheld these convictions, saying First Amendment does not apply here like Espionage Act, lock these people up and homes. In all three of these cases, he actually writes the majority opinions.

They're pretty dismissive of free speech, 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.

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.

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 too 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.

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.

And so when World War One 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 and you force people to get vaccinated against their will, you infringe on their liberty and you forced them to get vaccinated for 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 the same argument to a pretty disturbing place, using it to support the practice of forced sterilization in Buck v. Bell, where she did a whole episode about that case.

But going back to speech, these three cases come to the Supreme Court. That's in March 19 19. Right. Then for some reason, eight months later in November, there's another case, the Abram's 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 right 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 you're the same guy that nine months ago was like, lock up everybody. Had he said this sort of thing ever?

No, they said, no, he hadn't. What happened? Right, exactly. Why did he change his mind between the Debs case in March and the Abram's case in November?

Why would this nearly 80 year old heterosexual CIS gender white privilege, powerful, wealthy man like what made him in those eight months change his mind so radically, so quickly?

All right. So really, the question is, if you boil it down into three words, the three words are, what up homes?

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 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 Eyerly 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, and he really 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. And you're laughing. But I did. I had a spreadsheet with every day in this spreadsheet.

He really tracked each of those days in that year and a half around those eight months.

Right. And he microscopically pores 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.

He even reads the books that Holmes, his friends, are writing and reading just in case they had a conversation with Holmes. That's like what possibly they could have said to Holmes that would have made him change his mind. Wow.

So did he did he find something? Was there like a little smoking gun or something buried in all of 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 a future Supreme Court justice, Felix Frankfurter, the editors of The New Republic magazine, Herbert Crowley and Walter Lippmann, this young socialist named Harold Laski, who at the age of twenty four 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. House of Truth. It was a townhouse like a little like clubhouse for like 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 like play cards with them and debate the 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.

Homes love to talk to people he'd love to be challenged.

He loved debate, and as he got older, he found himself not really having anyone to do that with anymore, like that sort of intellectual friends that he had who were his contemporaries.

Those people were all dead by this point.

Holmes was 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.

Yeah.

And all of these young men, they worshiped Holmes, they would write him fan letters and they would write articles about him in magazines.

And so he sort of found a new group of friends. They actually they got so close that when it was Holmes is surprised. Seventy fifth 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?

Great 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 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 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 nineteen, 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 somewhere in English, somewhere 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 a 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, that these weapons that these people were making, we're 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 nineteen eight months after the earlier cases have 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.

But he really discovers that something happens right.

As the court is considering the Abrams case, something happened to these young friends, in particular to Laskey and Frankfurter, one of Holmes's young friends, Harold Laski, who's this socialist?

Twenty four 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 Lafsky 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 Laskey were there.

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 homes and he's like homes, 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 Lafsky, shut up or should he stay quiet and stay consistent, but 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 Laski. So he does not write the letter? No, he does not write the letter supporting Laskey. But instead, that same week, he writes this 12 paragraph dissent to the Abram's case. The Abrams case is about a young socialist. Do you know? I mean, like it's like last it was 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, oh, wow. So he doesn't step in for his friend, but then he does step in for Abram's and company.

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

Here's what he wrote as short as 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 faith. 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.

The 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. Wow, 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, of course, 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 to 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, 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. School is supposed to be the ultimate marketplace of ideas, but also beyond.

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 image like what it lets in the room. You know what we should do with Nancys. 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. Hi, my name is Rachel Melisma 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.

For more information about Sloan at Sloan Dog Science reporting on Radio Lab is supported in part by Science. Sandbox is Science Foundation initiative dedicated to engaging everyone with the process of science.

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That from the Public Theater and WNYC Studios is available wherever you get podcast. Chad Latheef, Radiolab. And we're back, Frehley 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. 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. Exactly. We wouldn't have the free speech we have today. I love that what you just said.

I think that beautiful the way in which his argument one 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 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. 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 Synon Orale, professor at MIT 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?

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, fact check, dog, urban legends and so on and so forth. And they just listed all the stories that those sites attacked like about anything politics, business, all kinds of stuff science, entertainment, natural 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 tweet cascade's of these stories from the Origin tweet to all of the tweets that ever happened. And so for each story, they ended up with a diagram that showed how it spread through the Twitter verse. 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.

Some 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 retweeted 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 one hundred users or a thousand users or ten thousand users or one hundred thousand users?

And Synon 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, the 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 fifteen hundred people. So falsehood was just blitzing through the Twitter sphere. 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. That does not surprise me, not even a little bit, but. Well, OK, so now I'm sort of coming back to homes, yeah, 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. Right. Right. Or any of us, frankly. But I think it is possible.

In fact, that's exactly what I'm trying to recreate in my little microcosm in my Incyte newsletter, in my little counters, in my own personal life.

One of the conversations I had recently that has just stuck so deeply in my head was I spoke to I'm saying it to fiction writer, blogger. I am associate professor at University of North Carolina.

I think she calls herself an expert in techno social sociology because I didn't have a name, so I made one up so that the intersection between technology and sociology, that you've got a lot of press recently because you wrote that first article when President Trump was challenging all of the election results, a lot of people were seeing this as Trump being Trump.

This is before the capital insurrection. She basically wrote an article that said, America, how are we not taking this seriously?

Like, let's stop having, you know, nit picky discussions because people want to call this a coup.

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

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 expertize 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.

Yeah. 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 Right. So that article you mentioned I had published in The Atlantic, which publishes in The Atlantic, gets a lot of attention, but also some pushback.

So she brings on this guy, much like Levski.

He's a friend who just disagreed with her like this is not a coup.

After the election, we started really like having this divergent view of it.

I was just sort of saying, like, you're exaggerating, but I'm like, you know what? I have a newsletter called Inside a Huge Following. So it's instead of just sort of disagreeing with me here and there, why don't you write that coherent argument?

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. And then people can comment. And she said the whole reason to do it, you try to strengthen your argument by having somebody poke holes in it.

She said, I want to make sure my argument is Boller. 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. And not only is a part of my newsletter, it's a paid part of my newsletter.

She literally paid him to disagree with her. 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.

And so she was basically like, if there's a way to make a marketplace of my own to resurrect that dynamic HELYAR, I'm totally going to do that.

And so I launched this and his was the first one.

I've had other ones since she keeps doing it, bringing people on who I think can write a really good, strong version that counters mind paying people to try to take me down.

And she created a little marketplace in her microcosm.

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

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. Well, OK, so let me let me counter that now, OK?

Please, like, you know, as nice as Zaynab little corner, is it work 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 that's that's kind of the fundamental problem with all of these little marketplaces.

People don't have the same size microphone in the marketplace of ideas. So I talked to a friend of mine. Her name's Nabi, her saying hello.

How are you? Good. Did it work?

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

Yeah, and 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 surrounded by joiners who 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, 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.

Like, as we all know, it is like the Muslim terrorist Bova that bore no relationship to my Orange County Pakistani, like Kardashian esque, like like I just didn't I was who are these people who did it?

And she's like an I never my people never got the mike. It's about power. It's about megaphones.

But here's the thing to remember, like the marketplace of ideas was one theory. It's the idea that we glommed onto and the idea that really took off because a variety of social platforms were like, yup, that's the one, because it was this sort of idealistic metaphor, but also because it was the most convenient laissez faire.

Set it and forget it. Sort of model for free speech. But it's not the only one. 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 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.

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

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

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

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

This view conceives of the rights of a listener, not just the rights of a speaker. The way that we do things now, 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 talking, do you have a right to accurate information? And you see some glimmers of that throughout American history.

So, for example, in nineteen forty nine, the government actually set a policy, basically a rule saying if you are a news broadcaster, you have to present both sides of an issue.

You have to provide facts on these different sides of issues.

And so the Bihar'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.

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, 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. Totally. But but those questions can be used to repair the metaphor into something that's actually functional. Can't you just say to the marketplace of ideas, Asterix, OK, and then in the Asterix 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.

Yeah, I mean, I think that's good. But but then the question is like, who regulates? How do we regulate? Right now, the people whose regulated like we have the courts with like Citizens United being like we know virtually. Yeah. And now it's going to be Facebook. And the CEO of Twitter is the one regulating. It doesn't make sense.

Like who has that power and how do we negotiate over that power, which sort of just feels like we're back at square 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 Hili just to put all this in front of him. CVN thought, yeah, I actually do. And the first thing he said was OK, 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 speech, just kind of weird, you know, commercial understanding of free speech.

What about thinking about us all as a scientists, because you're not you're not buying and selling potatoes.

You're looking for truth.

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

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

It turns out that Holmes relied on another metaphor in his Abrams dissent as well. There's a thing he says right after the marketplace idea. He writes that, at any rate, is the theory of our Constitution. It is an experiment as all life is an experiment.

And so he says what he thinks about is that one word experiment and what Holmes could have possibly meant by that.

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

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

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 as long as possible. And one of the ways to promote the success of an experiment is to build in some flexibility. 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. And so that's that's another way to think about free speech that we constantly have to be rethinking what we even mean by free speech.

OK, it's a it's a constantly tweaking thing. Like, it's a thing that we it's it's never set, but it's something we need to kind of keep tweaking as we're going and keep refining. 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. 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? Oh, cool. Yeah, no, I don't have it yet, but I'm working on it. Speaking of which, what is a better metaphor, what is a better way to think about free speech in a modern society? Email us at Radiolab at WNYC Dog. Yeah. Email us. Tweeted 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 Nubeena said, you can find her at the markup dot org.

Obviously, this this whole episode started with Thomas Heelys book, The Great Dissent, and he actually has a new book out called Soul City. This episode was produced by Sara Carey, thanks to Jenny Lawton, Soarin Qaid and Kelsey Padget, who actually did the initial interview with Thomas Healy with me back in the more perfect days. I'm Jad Abumrad. I'm a lot. Thanks for listening. Hi, this is Megan Moore calling from Kansas City, Missouri.

Radiolab was created by Jad Abumrad and is edited by Sean Wheeler, Lulu Miller. And let's ask Dr. are our co-host. Susie Lichtenberg is our executive producer Gil and Keith is our director of Sound Design. Our staff includes Simon Adler, Jeremy Bloom, Becca Bressler, Rachel Kucik, David Gabal, Matt Kielty and mckewon Sakari Arean, Whack Pat Walters and Molly Webster with help from Cima, Olia, Sarah Stanback and Karen Lee. On our fact checkers are Diane Kelly and Emily Kreger.

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