What To Do About Our Free Speech Problem

I have made a living off the First Amendment for three decades now, remarkable only in that it has not yet driven me fully insane.

The first part of my career was spent as a print journalist and had the greatest potential to send me to the looney bin. I started as a sports reporter when I was a teenager and quickly found myself in the middle of a First Amendment battle that took an economics teacher, of all people, to help me win. I finished as the lead dog in a daily newspaper in Minnesota pondering First Amendment issues regarding a teacher allegedly having inappropriate relationships with her students — a teacher who just so happened to be the mom of one of my son’s good friends.

So yeah, I’ve been in the trenches.

Now I’m a marketing and communications guy, which, to the precious few left from the ranks of my former trenchmates, means I’m a sellout. I tell the stories of whoever agrees to pay me and don’t really care about “the other side.” I enjoy their criticisms of the industry that has supported me and my family for the second part of my career, but I do draw the line when they approach the suggestion that because I am not obligated to produced “balanced work” (whatever that is), I am somehow peddling falsehoods or stretching facts. The first tenet any moral marketer holds is to tell the truth. I’m not going to inflate our positive surgical outcomes or lie about a physician’s credentials in my drive to increase awareness of the awesomeness of my current employer.

The bottom line? Whether it was in my life as journalist or my current one as a marketing guy, I take extremely seriously the responsibilities that come along with my elevated ability to use the First Amendment to influence people to make decisions.

The problem I’m seeing more and more is that, 230 years after the First Amendment became a thing, there is little agreement on what those responsibilities are.

No, You Can’t Say Whatever You Want

Like so many thing in this modern society, there is little understanding of the history of free speech and the application of the First Amendment. For example, too many people don’t know it wasn’t until relatively recently that you had protection under the law for the nasty things “free speech” allows you to say. Most people assume the First Amendment came about shortly after the ratification of the Constitution and everyone suddenly was able to say whatever they wanted in whatever situation.

Wrong.

The Constitution is amazing and, at the same time, amazingly annoying in its lack of specificity. The entirety of the First Amendment reads:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

So many reputable institutions take these words — and, truly, there are only nine that deal with the things we say and write: “abridging the freedom of speech, or of the press.” — and apply a meaning that wasn’t true in practice until the third decade of the 20th century.

For example, the History Channel’s website says:

The First Amendment guarantees freedom of speech. Freedom of speech gives Americans the right to express themselves without having to worry about government interference.

Tell that to John Ruggles.

On Sept. 2, 1810, Ruggles stood up in a crowded tavern in Salem, New York — and here I assume he was blasted out of his mind — saying, “Jesus Christ was a bastard, and his mother must be a whore.”

Wowsaaaah.

Cringeworthy, yes. But protected under the First Amendment, for sure.

Wrong again.

Ruggles was arrested, charged with blasphemy, found guilty, sentenced to three months in prison and hit with a $500 fine.

The case made its way to the Supreme Court in 1811 (Wow did the judicial system move faster back in the day!). Ruggles’ attorney said the man could say what he wanted about the Christian savior because of the constitutional prohibition against the establishment of any sort of relationship between the church and state, an idea espoused in the same First Amendment along with the whole free-speech thing. To Ruggles’ attorney, saying Jesus was a bastard was no worse than saying the bartender was a bastard.

That argument was countered by a prosecuting attorney who said blasphemy was part of a common law offense that existed independent of the church and was accepted by us rebels when the Constitution was adopted because nothing said otherwise.

And this argument won!

Chief Justice Chancellor James Kent wrote in the unanimous (unanimous!) opinion of the justices that:

“Though the Constitution has discarded religious establishments, it does not forbid judicial cognizance of those offences against religion or morality which have no reference to any such establishment, or to any particular form of government, but are punishable because they strike at the root of moral obligation, and weaken the security of the social ties.”

In other words, yeah, sure, you can say anything you want — unless the thing you say angers the moral majority.

Ruggles was hardly alone in being punished thanks to the limits placed on the First Amendment from decisions by the highest court in the land. It wasn’t until after World War 1 that the Supreme Court started to roll back the use of moralism and protection of national interests in favor of giving people, as the History Channel says, “the right to express themselves without having to worry about government interference.”

Until the 1920s, what the First Amendment amounted to in practice was a restriction on government from selling licenses to enable someone to start a publication to disseminate information and opinions.

So, sure, start that newspaper. We can’t stop you or profit from it. But if you say something that runs counter to our puritan national roots or threatens our war efforts … run.

The Future of Free Speech Changes in Eight Months

Into this environment came Oliver Wendell Holmes, recognized by some as having a dope mustached and recognized by many as one of the greatest, most influential Supreme Court Justices of all time.

While it might be true that he was a great Justice, he was not great at dodging bullets. Holmes was seriously injured three times during the Civil War but still called war itself a “bore” for which he was “not suited.”

He had just one year of legal training before switching his attention to medicine, and he rejected the belief that people were granted certain rights by God, insisting instead that laws were best created by people through legislatures.

For much of his life and career, he was not a huge fan of free speech. His opinions on free-speech cases are extremely well-written and articulated, but he certainly was not someone who championed the rights of The People to question their government.

Until he was.

A mere eight months after delivering the majority opinion in the 1919 case of Schenck v. the United States, in which the conviction under the Espionage Act of the general secretary of the U.S. Socialist Party for distributing 15,000 leaflets urging men drafted into military service to resist was upheld …

“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.”

Oliver Wendell Holmes, Schenck v. the United States, March 3, 1919

… Holmes did a 180 and became an advocate of free speech in nearly all situations. …

“The ultimate good desired is better reached by free trade in ideas – that 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.

Oliver Wendell Holmes, Abrams v. the United States, Nov. 10, 19919

What happened to Holmes during those eight months that changed his free-speech ideals so drastically?

No one can say it was that the two cases were different. They weren’t. The Schenck case dealt with literature deemed a threat to our war effort. The Abrams case was similar. Russian immigrants in the U.S. had circulated literature calling for a general strike of like-minded individuals at ammunition plants in protest of a U.S. military operation on Russian soil. Charles Schenck was convicted under the Espionage Act and sentenced to 20 years in prison, a conviction the majority of justices affirmed.

Thomas Healy thinks he knows the reason behind Holmes’ change of ideals. In his book, “The Great Dissent: How Oliver Wendell Holmes Changed His Mind — And Changed the History of Free Speech in America,” he argues that, essentially, Holmes started hanging out with a bunch of free-thinking Hippies.

OK, fine. Not Hippies. The early 20th century version of Hippies.

Holmes, nearly 80 at the time, was bored with his contemporaries, not really fond of his fellow Justices and started to have impassioned debates in an apartment they dubbed “The House of Truth” with professors and alums from his old college, Harvard. These included some radicals who argued vehemently against the U.S. war effort and who labeled themselves socialist. When one of these 20-something-year-old men landed in some trouble with the school for sharing his opinions — incidentally, during a fundraising appeal to Harvard’s conservative elite — he appealed for Holmes to write a letter of support.

This appeal from his chum just so happened to fall within that eight-month period in which Holmes’ First Amendment stance changed.

Now, as Healy’s examination points out, Holmes did not write the letter to support his Hippie friend. But he did author the dissent in the Abrams case. And that dissent, because of the respect people had for Holmes, started to change Supreme Court and public opinion.

Suddenly, the Court started siding more and more with the people who said things that were once deemed morally or legally objectionable. Holmes’ only exception for the protection of the First Amendment was for expression deemed immediate threats to national security.

“We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

Oliver Wendell Holmes, Abrams v. the United States, Nov. 10, 19919

The Fallacy of ‘The Marketplace of Ideas’

What is most fascinating about Holmes’ Abrams opinion was the creation of the concept of the “Marketplace of Ideas,” an amorphous force that has become something of a pop-culture phenomenon, often cited by those fighting perceived censorship.

Free-speech advocates hold strongly to this theoretical marketplace, applying the capitalistic ideal that, if given a fair hearing, the “right” idea will win out and become the dominant, accepted and acceptable belief for our society.

The idea for this marketplace is magnetic. We want to believe it works. It speaks to our grandiose concept of American exceptionalism, that if we intellectuals toss around competing ideas long enough and hard enough, we’ll get it right.

The problem is we don’t.

The emergence of 21st century technology has allowed us to empirically test Holmes’ concept. The rise of social media created virtual marketplaces of ideas where people could, yes, share photos of what they were having for dinner, but also espouse their beliefs on matters of great importance that would then gain traction (or not) based on their truth and righteousness.

Except truth is, like, really, really slow, and by the time it shows up, the dominant narrative is already formed, leaving truth stuck at home without a date.

Three MIT scholars went back to the origins of the virtual marketplace — or, at least, a virtual marketplace. Starting with Twitter’s inception in 2006, the trio (and, presumably, a whole host of researchers who did the dirty work) tracked roughly 126,000 “cascades” of news stories that spread on Twitter. These 126,000 stories were tweeted more than 4.5 million times by about 3 million people from 2006 to 2017.

The study leaned on the work of six fact-checking organizations widely acknowledged to be non-partisan and extremely good at what they do:

• Factcheck.org
• Hoax-slayer.com
• Politifact.com
• Snopes.com
• Truthorfiction.com
• Urbanlegends.about.com

They found that the six organizations agreed on the veracity (or lack of veracity) of the stories 95 percent of the time.

Holmes would have loved this study, which was published in the March 2018 edition of the journal “Science.”

He wouldn’t, however, have loved the results.

The study found that the concept of a marketplace of ideas, where the best thoughts survive and truth ultimately wins, is a fallacy. It showed that falsehoods travel deeper, wider and faster than truth in all categories of information, regardless of whether, for example, the story was about politics or entertainment.

“But wait!” you say. “The bots!”

No, this phenomenon has nothing to do with artificial intelligence programmed to find and disseminate inaccurate stories. The study removed all of the bots from the data, and the differences between the spread of false and true news remained strong.

In other words, false news spreads because human beings retweet it, presumably not knowing — or at least not caring — that it is false.

Some disturbing, anti-Holmesian truth bombs from this study:

• False news stories were 70 percent more likely to be retweeted than true stories.
• True stories take about six times longer to reach 1,500 people than false stories to reach the same number of people.
• These “cascades” — unbroken retweet trains — reached a depth of 10 about 20 times faster than facts.
• Falsehoods were retweeted by unique users more broadly than true statements at every depth of the cascade, increasing their width far greater and faster.

Why all this happens is only a hypothesis. The study authors say it’s because false news is more “novel” and that people are more likely to share novel information, whatever that means. The belief is that the rush to be first in sharing this type of information makes the spread of falsehoods more likely. In other words, your desire to be seen as “in the know” is leading you to check your ability to think and research at the door and contribute to the spread of falsehoods.

For shame, for shame!

Who’s Fault is This?

Whatever the cause is, it’s not good, and it all circles back to the responsibilities inherent with living in a society that espouses free speech as an ideal so important it was the first “oopsie” corrected in our founding document.

I was done with journalism by the time Twitter became a truly invasive force. I pushed back hard against being first with ultimately ignored appeals to protect the reputation of the papers for which I worked by being right and by providing deeper context. We rarely beat the TV stations to the public with a breaking news story, and we sure as heck were not going to beat the Rise of the Internet. So why not provide something of value and put the things that happened in our communities and the world in an enlightening framework that advanced our readers’ understanding and enriched their lives?

Well, you can’t do that in 140 characters.

Ultimately, the question of why this is happening, why truth is being trampled in the rush to be first, is not as important as who is doing the trampling.

You.

And you.

And you and you and you and you and you.

And me, when I break my own rules and fall into an evening of Twitter doom-scrolling or share something in my Facebook feed without checking if it’s legit. I’ve done it. You’ve done it. We’ve all done it. We as a society don’t think as critically or as attentively as we once did. Our attention spans are empirically shorter and on the path to becoming goldfishesque. We’re letting this happen and actively participating in it while it happens.

The reality is, the marketplace of ideas is a horrible model on which to base free speech. But it’s certainly the easiest. It gives us permission to take our hands off the wheel and say, “The market’s got this.”

And the market does got this.

The market is why millions of people run around wearing shirts with the letter “Q” on them and currently believe there’s a huge government-run pedophile ring in the basement of a pizza shop that doesn’t have a basement. It’s why thousands of people participated in a coup attempt aimed at overthrow the democracy that granted them their First Amendment right to assemble (though it was hardly “peaceable”). It’s what gives that same group the protection to say what they are saying now that will, at some point, lead to another coup attempt.

And don’t think this is a partisan thing, nor that it restricted to conspiracy theories. One’s propensity to be swindled by the peddlers in this marketplace of ideas is not linked to party or sanity. The victims of misapplied cancel culture exist because of a mass movement of those largely from the left and mostly sane that has commandeered this supposedly free-to-be-you idea spot. This has revealed another weakness in Holmes’ ideal: The only way the marketplace of ideas works is if all voices start out as equal and those that gain traction do so on merit, not because they scream the loudest or longest. The reality is, all voices in the marketplace are not equal. Indeed, those with the best microphone (and, often, the most money) are louder and more frequently heard and, thus, more likely to survive to the next round and ultimately win.

Out of what I consider a justifiable fear of being cancelled myself, I’ll leave that argument right there for you to ponder and investigate yourself.

Except the reality is, you won’t investigate yourself. Or, more accurately, most of you won’t. And those of you who do will rely on secondary sources, at best. Independent, non-partisan, rational thinkers who welcome — and actually seek — constructive criticism as a means of refining and sharpening their own opinions into something that could maybe be called “truth” are a rare commodity these days.

Zeynep Tufekci is perhaps the unicorn in this small group. She is a Turkish “techno-sociologist.” She admits it’s a totally made-up title created because no one was doing what she’s doing to the level she’s doing it — focusing on the social implication of new technologies such as artificial intelligence, massive data collection and social media. She publishes her own newsletter, “The Insight,” and if the things I’m writing about here intrigue you, subscribe. You can get a lot of great stuff for free.

Back before the Jan. 6, 2021, coup attempt at our Capitol, Tufekci was warning her readers — and those of “The Atlantic” — about what was coming. She labeled the claims that the election was stolen were not just mere words but rather a call to action that would result in a coup attempt. She’d seen it happen in Turkey. She is one of the few who now can say “Called it!” and drop the mic before exiting the room.

But prior to Jan. 6, she was called hysterical and alarmist.

Instead of seeking to cancel out opinions divergent from her own, she invited the most logically vehement person who held the opposing viewpoint — an intelligent, respectful man who was picking away at her on social media — to write a take-down of her article, which she then published in her own newsletter.

From there, she wrote a counter to the counter, using her “opponent’s” well-articulated dissent to help her hone her own argument. Then others took her counter-counter and countered it again.

And on and on and on.

Not only was Tufekci sharpening her points, the other side was sharpening its.

Ultimately the truth was revealed when the Jan. 6 coup attempt happened.

That’s the marketplace of ideas.

But how many of you have heard of Zeynep Tufekci, know of “The Insight” and were aware this debate was taking place? Not many. I wasn’t. The reality is, that particular marketplace isn’t very big and is nothing compared with social media giants such as Twitter and Facebook. The difference in the dissemination network for news is immense.

In other words, your microphone as a Twitter user with eager-to-retweet followers is more valuable than her thoughtful, responsible, reasonable readers. This holds true even if the Jan. 6 events had never happened and Zeynep had been proven wrong.

What’s Happening Now Isn’t Working Either

So if the marketplace of ideas is a fallacy — or, at the very least, is a district in the city you don’t want to travel at night — then what works better?

Well, what’s happening now isn’t the answer.

While Twitter or Facebook might once have been individual marketplaces of ideas, they aren’t now. Our current reality is that, because of the platforms on which huge swaths of the world’s populations choose to find their news, a few extremely wealthy business owners have a stranglehold on “truth.” And what we’re seeing is the difference between truth — something that, in many instances, changes with time — and fact.

The origin of COVID is the latest example to demonstrate this. It took roughly seven days for what was once a banned-from-Facebook theory — that the virus originated through a “lab leak” — to go from conspiracy theory to an acceptable mainstream idea. What Facebook had banned in a stunning admission that its users were intellectually unable to judge a theory and reach their own conclusions is suddenly back and an acceptable topic for you or me to talk about there.

If Holmesians had their way, this topic would have been openly debated from the start and, eventually, the truth — whatever that might be — would win. Zuckerbergians (a party of 1, Facebook CEO Marky Z.) had said the idea was too dangerous to be discussed because others would fall for it and propagate misinformation to the damnable ruin of us all.

If Holmes’ ideal is on the far end of the pendulum swing to the right, the current climate where the executives of the leading sources of our society’s news can determine what can and can’t be discussed is on the outskirts of its return journey to the left. And no, I’m not using those directions in any sort of political sense, so stand down.

What Now? Embrace the Scientific Method

So what do we do about the problem of free speech? How do we exercise it as a society in 2021 in these here United States? The answer has to fall somewhere in the middle of these two extremes. Unfettered “idea capitalism” works just about as well as unfettered economic capitalism, and all sane people are happy to accept at least some degree of restriction placed on the “free” market.

The solution will not be found in any particular set of rules or regulations that cannot be altered as time marches on. We scoff at the notion of Ruggles being thrown into prison for saying Jesus was a bastard and Mary was a whore, but restricting that speech for religious reasons was mainstream thought back then. Similarly, what’s mainstream today will not be mainstream 100 years from now.

I return to Holmes. The whole “marketplace of ideas” thing from his Abrams dissent is what has captured the most attention since he wrote it. But it’s what comes next in that dissent that provides the true lesson for us now.

“That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

Oliver Wendell Holmes, Abrams v. the United States, Nov. 10, 19919

Our entire democracy adheres to the scientific method. It is an experiment testing a hypothesis by observation and measurement available to us at that very moment to allow us to refine our initial thoughts so we can test them again.

The First Amendment and the concept of free speech is an experiment within this other grand experiment. The fact that we’ve never reached a long-term conclusion that stands up to new input from subsequent generations does not suggest we shouldn’t keep doing and re-doing the experiment. We should. We have to.

We have to because there is never going to be an answer to this question of what to do about free speech. There’s no central, indisputable “fact” to be found. There is only truth, and truth is temporary.

We know one thing that didn’t work. We should know the thing we’re allowing to happen now doesn’t work.

Strap on those safety goggles and light the Bunsen burner. It’s time to experiment again.