A Marketplace Of Wobbly ideas: How The Supreme Court Came To Use A Cold War-Era Invention

Shantanu Singh

11 Dec 2020 11:53 AM GMT

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  • A Marketplace Of Wobbly ideas: How The Supreme Court Came To Use A Cold War-Era Invention

    "We have been cocksure of many things that were not so." - Oliver W. Holmes Thanks to wide reportage across social media and here, it is well known that the Supreme Court is currently hearing a petition against Sudarshan TV's controversial show. To wit, the channel alleges that a religious cabal funds, deceives, and achieves way beyond its means and measures in the...

    "We have been cocksure of many things that were not so." - Oliver W. Holmes

    Thanks to wide reportage across social media and here, it is well known that the Supreme Court is currently hearing a petition against Sudarshan TV's controversial show. To wit, the channel alleges that a religious cabal funds, deceives, and achieves way beyond its means and measures in the country's civil services examination. Their calculations suggest that a conspiracy is afoot and its international roots threaten to rupture national security. Accordingly, they have inclined themselves to dig in with their investigative teeth. Sub-judice as it is, the Supreme Court will eventually decide the matter as and once it has been heard. Nevertheless, what caught my eye was the use of a certain phrase – 'the marketplace of ideas'– during the course of the hearings.

    First, on 15 September, Gautam Bhatia, appearing for the interveners, invoked the 'marketplace of ideas' metaphor to draw the sensibilities of the Bench to the harm that hateful speech can cause. Then, on 18 September, the bench, while hearing the channel's lawyer, sent out a clarion call: 'let the marketplace of ideas flourish in India'. While one hopes that the call was intended to resonate far beyond Court No. 4 – given the state of dissent and dissidents in India, the appeal to the marketplace metaphor could hardly come as surprise. The marketplace metaphor enjoys wide employ in the First Amendment (protecting free speech) jurisprudence of the US Supreme Court. Indeed, for W.W. Hopkins – who has analysed the use of the marketplace metaphor in US Supreme Court opinions between 1919 to 1995, 'no metaphor is more deeply entrenched' in First Amendment opinions than the marketplace metaphor.

    The marketplace theory behind the metaphor is quite simple: in public free speech, if ideas are allowed to enjoy unfettered competition then truth is bound to emerge from this competition. This belief is seeped deep into the First Amendment jurisprudence and is a reason why American courts often (but inconsistently) hold to protect false ('valueless') speech – presuming that the self-correcting threshing of the marketplace would always lead towards truth. The theory eschews any monopoly or control over ideas and appreciates diversity against the imposition of any authoritative truth. This obviously does not mean that all speech is absolutely protected. Obscenity, for one, is without protection.[1] Similarly, 'fighting' words do not attract the protection since 'social interest in order and morality' outweighs the 'social value' (truth value) of these words.[2]

    But tensions do exist for the marketplace theory. Take the example of hateful speech. The 2017 de-platforming of far-right polemicists at UC Berkeley tested the very limits of free speech – could protesters stop them from speaking at events because of their hateful views? First Amendment scholar Erwin Chemerinsky kept consistent with court rulings in writing that hate speech was well protected. Others, however, were far more dismantling in exposing the 'myth of the marketplace'. Today, denouncements of the theory are common – just last month, the New York Times Magazine featured a piece which partly blamed the theory's central assumptions for the rise of misinformation.

    Yet for a term that has come to dominate how we imagine free speech to operate, the term 'marketplace of ideas' has an amusing past. It owes its birth neither to flamboyant judicial writing nor can it be found in the works of Liberalism's greatest. In fact, the precise metaphor is a relatively recent invention and has come to gain a democratic patina due to its employment in the ideological warfare of the Cold War era.

    Against an absolute Holmes

    The supposed genesis of the metaphor, it is told, lies in Oliver Wendell Holmes' dissent in Abrams v. United States. As the Wilson administration plotted to intervene in Russia, Russian anarchist Jacob Abrams was tried along with a few other radicals for the crime of distributing anti-war pamphlets which flew in the face of the interventionist policy. While the Court ruled 7-2 that their revolutionary acts were not protected by the First Amendment, Holmes' dissent gave us a passage which is often termed a masterpiece:

    But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that 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. That, at any rate, is the theory of our Constitution.[3]

    To Holmes, this 'theory' was an experiment, 'as all of life is an experiment'. It is also quite clear that while he is welcoming it, the exact 'marketplace of ideas' metaphor is absent from Holmes' aphoristic writing. Yet citations to the Abrams dissent, to the point where the metaphor has been attributed to Holmes, can be found in many Supreme Court opinions and academic articles. Since this marketplace theory is built on Holmes' unique understanding of the First Amendment, a lot about it comes to depend upon what he understood and assumed of the 'free trade in ideas' and of truth itself.

    For this, it is perhaps worth revisiting Holmes' views. While Alschuler provides a sharp take on Holmes in his book 'Law Without Values', a less critical account can be found in Vincent Blasi's article about Holmes and the marketplace metaphor. Both authors note how deeply Holmes was influenced by the ideas of war, contest, survival and the writings of Thomas Malthus and Herbert Spencer – two fixtures of Darwinist thinking. While Blasi is dismissive of the idea that a vulgar Social Darwinism a la 'survival of the fittest' – a phrase coined by Spencer – influenced Holmes' affinity for the 'competition of the market', John Durham Peters disagrees: Holmes liked this competition because it 'was dangerous and brutal and could eat people alive'. Michael Duggan's views fall somewhere in between. For him, Holmes has a naturalist evolutionary philosophy but his approach is far more gradualist than Peters would have us think. He argues, that the marketplace provides a 'social arena for ideational evolution' where law takes a civilizing role and maintains fairness via rules. Alternatively, for Blasi, there is a total theory in Holmes' but it has nothing to do with the 'equilibrium-seeking mechanics of neoclassical economics. Broadly, Blasi suggests that we see it as a theory which accepts the historical importance of change and the existence of many truths – a pluralism of choices against the 'transactional precision of the market'. However, what these 'truths' are is anyone's guess. Blasi, Duggan and Peters are all right to be alarmed by Holmes' 'irreverent' and almost nihilistic attitude towards truth. For Peters, Holmes 'had no substantive conception of truth' at all.

    Even at this early stage, we are running into obvious problems. Holmes' free speech theory – if there is one – is perhaps built on quite a radical epistemology and makes far-reaching assumptions about its working parts. Lacking clarity or exposition at its roots, it does appear that the marketplace theory is built on a very wobbly foundation. Nevertheless, since Holmes does not name it and we are primarily concerned with its origins, what has given such a vibrant life to the 'marketplace of ideas' metaphor?

    'If we are true to our traditions…': The making of a Cold War metaphor

    Peters' philological study cannot find the precise term in the works of jurists Louis Brandeis or Learned Hand. It is also not to be found in the works of First Amendment scholar Zechariah Chaffee, whose often vigorous defence of free speech led Joseph McCarthy to name him in a list of those 'most dangerous' to America. Instead, Peters and Blasi trace the earliest use of the exact phrase to a letter sent by a David Newbold to the New York Times in 1935. Newbold lamented the party politics of the Republican convention and his exact use of the metaphor had nothing interesting to say as such.

    Beyond another such isolated use of the metaphor in 1939, Peters' study of the New York Times database shows that a more refined and teleological use of the metaphor only begins with the start of the Cold War era. The American Communist Party, feeling the heat of the simmering McCarthyism, took to the phrase in 1948 as they sought a chance 'to compete fairly in the marketplace of ideas' and be judged 'on merit' alone. As McCarthyist policies swept in to root out communism from America, the metaphor came to be used by civil libertarians such as Norman Thomas and Supreme Court Justice William O. Douglas. Douglas' 1952 essay 'Black Silence of Fear' was published in the New York Times at a time when McCarthyism was at its peak. If we ignore the underlying exceptionalism of his writing, Douglas' essay is a reflection on how McCarthyism was jettisoning a 'philosophy of strength through free speech' for a 'philosophy of fear through repression' – an aspect that Douglas is quick to measure against the Soviet Union. He deplored this march towards conformity and issued a stirring call: 'If we are true to our traditions, if we are tolerant of a whole market place of ideas, we will always be strong'. Douglas would then go on to give legal currency to the marketplace metaphor for the first time in a 1953 Supreme Court opinion.[4]

    But it is Douglas' essay that interests me more. Through its lens, we are able to see the two ways of how the metaphor was being used. First, the civil libertarians employed the metaphor to argue against McCarthyite policies and for the reintegration of dissent into the democratic structure. Second, the essay is an excellent introduction to how the Cold War was persistently being fought through ideological subtleties: showcasing freedom against repression, a 'marketplace of ideas' against the conformism to diktats and so on. It is a trope that is all too visible in Peters' analysis of the Times' archives as well. From deriding Marxism's ability to compete in the 'marketplace of ideas' to juxtaposing the 'mass narcotic' essence of Soviet journalism with the 'real market place of ideas' that was American journalism, the metaphor's metamorphosis into a signifier and the lodestar of the democratic free world against the authoritarian USSR seemed quite natural given the political environment.

    This dominance during the Cold War era was not simply projected outwards. Internally, the 'marketplace of ideas' was attracted to almost every aspect of the daily American's life in the Times' columns: marketing, politics, religion, sales and education, all were under its spell. The 1970s and 80s proved to be periods of unparalleled glory for the marketplace metaphor. A similar narrative appears if we turn to Peters' analysis of Supreme Court opinions during the Cold War era. In the 1950s and 60s, there were a total of only 6 references to the marketplace metaphor. In opinions published from 1970 onwards, these references bloomed remarkably: 15 in the 1970s; 22 in the 1980s; and 14 in the 1990s. Peters' larger conclusion is almost heretical here: it would appear that it was the New York Times, and not the Supreme Court, which first coined and then cultivated the marketplace metaphor. Only subsequently did the metaphor find legal consecration in the Supreme Court's free speech jurisprudence and become the raison d'etre of the First Amendment.

    The 'fighting faith' of a theory

    If considered sincerely, the marketplace theory rests on many internal assumptions: rational individuals, temporal validity and singularity of truth, ideas as consumer goods and individual as a consumer, an individualistic conception of truth, that competition will always offer to us the best truth, and that in protecting the marketplace of ideas, courts engender diversity of thought. At the same time, the marketplace is blind to and hides from us forces such as capital and ideology. Capital operates in silence when it chooses the profitability or the commercial value (especially in the publication business) of an idea over other values (say, the 'truth value' of an idea). A knock-on effect of the latter may be that sensationalist, rousing or hateful speech may masquerade as ideas in the marketplace. Ideology is by far the most unique: an all-encompassing totality that can offer an illusion of diversity to the individual subject in the marketplace of ideas, when in reality there may not be any difference among the choices offered. In other words, what ideology offers to us in this 'marketplace of ideas' is an unfreedom that we solemnly (and personally) accept and experience as freedom. Another reading may consider how the appeal of the marketplace metaphor has been sustained and kept alive through pure ventilation only: living not due to its 'theoretical' appeal or legal legitimacy but the philosophy – of individualizing truth and competition – that it shares with Neoliberalism, the social and political engine of our times.[5]

    Thankfully, sincerity is only on offer for sincere theories. It is quite possible that we are dealing with a concatenation of ghosts. With the end of the Cold War, the metaphor has become an emblematic feature of democracies across the world. Global flow of capital and information has ensured that jurisprudential concepts have flown too. From such time onwards, we can trace references to the 'marketplace of ideas' in court opinions from Canada, South Africa, the United Kingdom, India, Sri Lanka, Uganda, Bangladesh, Zambia, Zimbabwe – Kenya has even incorporated it into a regulatory legislation.[6] A truly transnational oratorio!

    Today, a number of newspaper and magazine articles traverse the same path when they retroject the marketplace theory into the works of John Milton, John Stuart Mill, Adam Smith and so on without worrying about the quite obvious tension that such retrojection brings to their thought. Attributing Holmes for framing this theory of free speech is not free from its own tensions as well. Holmes is a complex and troubling figure whose often cryptic and aphoristic writings can make it a notoriously difficult task to draw out any clear conclusions, let alone proper theories. In crediting him, we are accepting a very radical faith in how public free speech operates. On top of this faith, American courts have shaped an almost inconsistent theory of free speech where they evaluate speech to measure or weigh against countervailing interests. Clearly, Justice Learned Hand was speaking about this very committed faithfulness of the courts when he wrote that despite all the criticism that this First Amendment 'theory' faces, 'we have staked upon it our all'.[7] How wrong was Holmes to even think that time defeats fighting faiths.

    Views are personal.
    (Author was formerly a Research Assistant to Professor Charles Jalloh, who is a member of the International Law Commission)

    [1] Miller v. California, 413 U.S. 15 (1973)

    [2] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) 572.

    [3] Abrams v. United States, 250 U.S. 616 (1919) 630.

    [4] United States v. Rumely, 345 U.S. 41 (1953) 56.

    [5] Bruno Amable, 'Morals and politics in the ideology of neoliberalism' (2010) 9(1) Socio-Economic Rev 3.

    [6] Kenya Information and Communications Act, 1998.

    [7] United States v. Associated Press, 52 F. Supp. 362 (S.D.N.Y. 1943) 372.

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