9.

AN IDEA BY ANY OTHER NAME

Is it not time that we finally . . . become more intellectually honest about just who and what we are protecting with our First Amendment?

YES, SPEECH ALWAYS has the potential to express an idea, but it most often falls short. Most of what we hear all day are empty words—chitchat, nonsense, shooting the breeze, talking about the weather, and just making conversation. That is how most people spend their day while engaged in speech. It is true—small talk occupies most of our audible space. The Founding Fathers did not fight a revolution and secede from an empire so as to make idle, superficial, and banal talk a favored liberty in this new nation. The liberty they envisioned applies only to speech infused with a loftier purpose. Most people do not open their mouths with the aim of contributing to the public discourse. Most people are not aspiring for a Patrick Henry moment, seeking to persuade others or protest their government. Lacking oratorical ambition does not make them less valuable citizens. But it does mean that the First Amendment probably will not need to be called upon to defend what they have to say. Speech directed at the government is precisely what the First Amendment was drafted to defend: a citizen’s right to openly criticize the political leadership and direction of the United States, to meaningfully engage in civic, democratic participation. The First Amendment does not apply to the mundane and quotidian. Neither “Pass the ketchup” nor “Jews to the Gas!” are ideas, and surely the impulse to speak such words is not the reason why we have free speech.

Speech that strives for seriousness still might fall short of an idea. No matter. Effort counts. One should be credited with having ventured into the marketplace of ideas in good faith. The marketplace of ideas sometimes offers only a meager shopping experience. Some speech, through artifice and pretty packaging, not to mention nativist thinking and other distorting prejudices, may appear to be an idea from a reputable vendor. The Supreme Court, in fact, has contributed to false labeling, allowing loathsome, head-scratching behavior to pass as an idea under the First Amendment. Stanley Fish has observed this misdirection, with the First Amendment being played like a “marvelously flexible instrument,” a game of three-card monte with courts picking and choosing between speech and non-speech, simply by designating the expression as an idea. For instance, here Fish provides a humorous sampling of “ideas”: “the malicious depiction of a man having incest with his mother is an idea; . . . the repeated portrayal of women as appropriate objects of degradation is an idea; . . . that the genocidal message of Nazis who wanted to march through Skokie is an idea.”⁶⁰

He is right: Arguably none of those examples represented an idea, and yet the Supreme Court treated each speaker—an assortment of white supremacists and Nazi wannabees—like an Edison or Einstein. Ideas can be both false and bad and come in many varieties. Nazism was surely no repository of refined, enlightened thought. “The Final Solution to the Jewish Problem” is not an idea but a euphemism for Jewish genocide. “Ethnic cleansing” is presumably an idea, too; so is “re-indoctrination” and “resettlement.” All of the aforementioned ideas are uniquely bad in both conception and practice. If the marketplace of ideas operated like a true clearinghouse, these ideas would be vanquished in short order. Consumers would express their preferences and reject them. And that would be the end of it, like the recall of a car or the public rejection of a newfangled flavor, like New Coke. But that is now how it happens. The marketplace of ideas is powerless to police itself, and the unregulated freedom that characterizes this marketplace ensures that bad ideas will flourish and be indistinguishable from good ones.

Nazi Germany, for instance, featured neither a marketplace of ideas nor a democratic system of civic and political participation where free speech was welcome. Would we today grant the murderous ideological agendas of Hamas, the Taliban, al-Qaeda, Boko Haram, and ISIS access to a marketplace of ideas simply because their madness is framed as an idea? Is there an invitation to debate mentioned in any of their death chants? They do not seem to be very much interested in free speech for their own people. Winning over the populace is accomplished with terror, not persuasion. Does anyone believe that the odious ideas of the Iranian regime could capture minds in a free marketplace? When Hamas defeated Fatah in the first democratic elections held in Gaza, the terrorist group celebrated not by welcoming Fatah as the loyal opposition but by tossing its members off rooftops and shooting them in the street. This is a marketplace where only barbarians need reply.

Philosopher John Stuart Mill was also overly optimistic in his belief that bad ideas might contain an element of truth that sharpens our understanding of the world. I think it is more likely that bad ideas given access to the public sphere corrupt truth and muddy moral clarity.

In United States v. Dennis, a case brought during the Cold War against eleven members of the American Communist Party, the government alleged that the defendants had conspired to violently overthrow the United States. In affirming their convictions, Judge Learned Hand of the United States Court of Appeals for the Second Circuit warned in 1950 against a First Amendment smugness—the paradox of allowing the enemies of democracy to benefit from First Amendment freedoms they would most assuredly eliminate should they ever rise to power. Such naive permissiveness is suicidal during times of national emergency when threats against the United States are not abstractions, but are real and lethal.⁶¹

Judge Hand wrote: “That may be a proper enough antidote in ordinary times and for less redoubtable combinations; but certainly, it does not apply to this one. Corruptio optimi pessima (Corruption of what is best is the worst tragedy.) True, we must not forget our own faith; we must be sensitive to the dangers that lurk in any choice; but choose we must, and we shall be silly dupes if we forget that again and again in the past thirty years, just such preparations in other countries have aided to supplant existing governments when the time was ripe. Nothing short of a revived doctrine of laissez-faire, which would have amazed even the Manchester School at its apogee, can fail to realize that such a conspiracy creates a danger of the utmost gravity and of enough probability to justify its suppression. We hold that it is a danger ‘clear and present.’”⁶²

Treating the marketplace of ideas as an intellectual sandbox where everyone, including all schoolyard bullies, is invited to play without restriction is a foolproof way to one day being remembered as a “silly dupe.”⁶³ Judge Hand openly mocked this laissez-faire commitment to the First Amendment, the all-too-casual belief that more speech is the antidote to bad speech, and that liberty at all cost is better than a more measured approach to freedom—one that exercises caution above reckless absolutism.

Of course, Dennis took place during the worst manifestations of Cold War hysteria. Many believe today that it was wrongly decided. The First Amendment, after all, in addition to free speech, also grants citizens freedom of assembly. If the Dennis defendants wanted to join an American communist party and read Karl Marx for kicks, is that not the ultimate expression of political engagement and personal liberty? Should we not all applaud their right to read whatever political treatise they wish and join whatever party suits their political orientation? Yes, of course, if the intent of such groups were to engage in an open debate as to their view of a better way of governing.

But where speech crosses the line from debate to terrorist actions, most Americans would not be sympathetic to the activities of cells operating in the United States where its members, American citizens or foreign residents, watched bomb-making instructional videos on YouTube and listened to sermons of how to bring about the most mass death. Should such videos as the ones from Islamic cleric Anwar al-Awlaki, which are easily available on the Internet, and are quoted by his followers, be protected under the First Amendment? Are they not the very definition of incitement? In the days and months after 9/11, there were far fewer absolutists taking up a rallying cry on behalf of freedom of speech and assembly for such activities. But as time passes, abstract liberties get mugged by the reality of murderous foes who have no stake in liberal values and who would not hesitate to invoke the First Amendment as a defense to any governmental action taken against them.

Justice Holmes envisioned his marketplace of ideas as a courtroom with an orderly presentation of argument, organizing rules and a resolution that unveils the truth.

Good luck with that.

Those were different times, and hindsight can be a convenient luxury.

Speakers in the marketplace of ideas, exercising their rights under the First Amendment, can nearly say whatever they wish in whatever manner they choose to express themselves. They are unbounded by evidence or procedural rules. There is no judge who will call them out of order. The balancing of the scales of justice has no counterpart in the marketplace of ideas. Opinions can be lopsided and offered from many directions so that their origins are likely to be unknown. It could just as well be called a marketplace of chaos. Intellectual rigor or internal consistency is of no concern. The more clashing the speech, the more chaotic this marketplace seems to function. And everyone seems to be fine within the frenzy—all except those who are unwillingly dragged into the fray. In such a disorderly place of colliding speech, with declarations whizzing like projectiles, one can choose to avoid what they do not wish to hear or only take in what confirms what they already believe to be true or, worst of all, have neither the timing nor the dexterity to get out of the way.⁶⁴

If the marketplace of ideas is not an arena of rigorous debate and respectful dialogue held before an audience shopping for essential truths, then what good is it—how does it promote democracy or enhance ideas? Bad ideas are entering the mainstream through a marketplace that is indifferent to what is actually being exchanged. Imagine a stock market that did not trade in shares of actual companies or a futures trading exchange without commodities. No one seems to mind that hollow ideas infiltrate the market of ideas like dummy corporations. Speech that incites violence or threatens already marginalized groups is granted the legitimacy of ideas. Harmful speech receives a First Amendment seal of approval within the charade of a fail-safe marketplace that is anything but safe and very much prone to failure.

Just as there are permissible barriers to entry in other markets, so, too, should speech be subject to some form of sensible regulation. Justice Holmes did Americans no favor with his mythical marketplace. It surely has not made America smarter or richer in ideas. At least one legal philosopher, Alexander Meiklejohn, acknowledged that, for all the luster and bluster of the “marketplace of ideas,” it is not a particularly helpful doctrine for assessing differences between right and wrong and true and false.⁶⁵

And what is worse: This marketplace lacks the one concrete feature that gives meaning to an actual marketplace—a final verdict issued by the consumer. In actual markets, consumer goods, stocks, bonds, and commodities, should they elicit little or no interest, will decline in price, become discounted, get rejected, or be recalled. They disappear from the market never to be seen again. They might be sold for scrap. Of course, the idea behind them can be tinkered with and improved upon. Remember the Palm Personal Digital Assistant and the Walkman? They morphed into smartphones such as Apple’s iPhone. Some renewed consumer interest might emerge. But the product in its original form is usually gone for good.

That is how true markets function.

The marketplace of ideas is much more forgiving of its wares. Ideas that are roundly rejected somehow get to hang around, like hoodlums lurking in the dark, the ash still flickering from cigarettes clinging to their lips. They live to fight another day. Sometimes they are tidied up, made to look and sound more presentable. An odious edge is softened. A spin doctor gets called in for a house call. (Think of “anti-Zionist” becoming a convenient way to avoid being labeled an “anti-Semite.”) But mostly they simply reappear at the speaker’s corner or the public square, exactly the same as before, with their jackboots and nooses at the ready, seeking a permit to march or create some other mischief. This is, after all, what Hitler himself had in mind with intimidating tactics that incited a beerhall putsch or a Kristallnacht. Justice Robert Jackson, in his dissenting opinion in Terminiello v. Chicago, wrote that extremist groups “resort to these terror tactics to confuse, bully and discredit those freely chosen governments. Violent and noisy shows of strength discourage participation by moderates in discussions so fraught with violence, that real discussion dries up and disappears. And people lose faith in the democratic process when they see public authority flouted and impotent.”⁶⁶

Jackson, who was the lead prosecutor in the post–World War II Nuremberg Trials, surely understood that marching goons dressed up to intimidate and spread fear have very little interest in deliberative democracy. Indeed, the ostensible purpose of their assembly is to end democracy itself—a foreshadowing of things to come. Is it not time that we finally reconcile ourselves to this unfortunate fact and become more intellectually honest about just who and what we are protecting with our First Amendment? We need to start making distinctions between the motives of speakers and stop trying to elevate evil intentions and placing them on par with those with whom we are merely having a disagreement. There is an underworld of difference between a rabble-rousing bigot and a Cicero, between the primal violence of brown-shirted Nazis and the Lincoln-Douglas Debates. Martin Luther King Jr. and the Klan relied upon radically different methods of persuasion, and it is a gross insult to King to treat him as if he were deserving of no more rights and protection than the Klan.

Back in the late 1970s, the Jews of Skokie, Illinois, a mere thirty years after the end of World War II and the liberation of Auschwitz, must have wondered why the pernicious “ideas” of the Nazis had returned, this time with a “neo” prefix, yet there was nothing new about their abhorrent anti-Semitism. Had their ideas not already been rejected in the marketplace? How can Nazi propaganda actually still be for sale? After losing the war and having been judged guilty of committing crimes against humanity, the Nazis had already lost the argument, their ideology thoroughly rejected, their ideas deemed without redemption.

What kind of a sleazy marketplace is this?

Justice Holmes believed that even the views we detest must be given an opportunity to succeed, to find followers. But for how long must this go on? Our tolerance for bad ideas is so great, we permit them to be reintroduced over and over again—recycled anew and then rejected as old. Do ideas, especially odious ones, deserve such a long shelf life? In every other marketplace, a vanquished competitor is forced to go away. In the marketplace of ideas, noxious views linger.

There is, however, no legal or moral justification for protecting bad ideas for eternity. The right to free speech is not a license to forever taunt those who simply wish to live their lives peacefully, in full enjoyment of their own rights.