Ari Ezra Waldman, Law Professor & Privacy Advocate, Shares a Quote
“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.”
Ari Ezra Waldman is a Professor of Law at New York Law School and is currently the Microsoft Visiting Professor of Information Technology Policy at Princeton University. He received his undergraduate and law degrees from Harvard, and his masters and Ph.D. in Sociology from Columbia University. Waldman’s research focuses on privacy, technology design, online speech, and marginalized communities. He’s the author of author of Privacy as Trust, which UC Boulder professor Scott Skinner-Thompson described as “a must read for anyone interested in saving privacy in the digital age.”
Stephen Harrison: So what quote are we chatting about today?
Ari Ezra Waldman: It’s a very small quote from Oliver Wendell Holmes’s dissent in an early 20th century United States Supreme Court case called Abrams v. United States, which was decided in 1919. The quote is, “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.”
Oliver Wendell Holmes was an Associate Justice of the Supreme Court, and he’s incredibly well-known in legal practice and in legal scholarship today for many reasons. Not only was he brilliant, but he wrote several dissenting opinions in the early 20th century that later ended up becoming the bases for majority opinions. He was a very prescient jurist.
Holmes sat on the court at a time when conservative justices dominated the course of American law. Today people would call him conservative, but for his time, he was progressive in a classical liberal sense. He was admired by some of the Great Society justices in the mid-20th century who decided cases like Brown v. Board of Education, which ruled racial segregation in public schools unconstitutional.
The Holmes quote you selected comes from his dissenting opinion in the case of Abrams vs. United States. What was at issue in that case?
Abrams was a political censorship case. There were individuals in August 1918 who went up to the fourth or fifth floor of a building in New York and threw out political flyers from the window. The best way to reach the masses at the time! The flyers were in English as well as Yiddish because so many immigrants living in the Lower East Side of New York were German Jewish Immigrants. The flyers protested the Wilson administration’s involvement in World War I and the administration’s opposition to the Russian Revolution. The Russian Revolution had recently overthrown the czar and replaced him with a socialist, Leninist government. So, the flyers were pro-socialist in the Russian sense.
At the time, the United States passed a law that criminalized dissent against the government’s involvement in the war and its form of government. (The U.S. in fact has a long history of laws that suppress dissident voices, beginning with the Alien and Sedition Acts.)
The majority of the Supreme Court upheld the conviction of Abrams and his associates for their anti-government flyers. But Holmes had a different idea. He was opposed to government censorship of different or dissident ideas, even if the ideas themselves are dangerous. Holmes believed the best way to handle speech we don’t like—hate speech, bad speech—is to let the ideas out there and to shout them down. Give the dissenting voices a chance to speak in the public square and argue with them so that reasonable people can choose the best path forward.
The second half of the quote states that the best approach is to allow ideas to be “accepted in the competition of the market.” You mentioned via email beforehand that this was the origin of the marketplace of ideas as a legal concept.
This quote is the start of the marketplace of ideas metaphor in American law, although the actual idea emerges in the work of John Milton in 1644 and the famous liberal philosopher John Stuart Mill in his 1859 book On Liberty.
You can tell from the Holmes quote that the idea in American law is to take an economic concept—the free flow of goods—and translate it into free speech doctrine. The analogy is simple: A classical economist would say that if a company is going to produce a bad product, like a poorly-tasting beverage, let them go ahead and do so. The market will handle it. People will only spend their money on the good products. So Holmes applied this idea to speech, saying, in effect, “We shouldn’t ban speech. Let the market handle it, and only the best ideas will win out.” He was suggesting that individuals will only want positive ideas or positive speech.
Do you think Holmes was right? Is the marketplace of ideas a good metaphor for free speech?
I think the marketplace of ideas metaphor is inadequate to address the state of free speech law today. Furthermore, the marketplace of ideas concept does a lot of harm to marginalized populations, whether they be women, queer people, persons of color, and so forth. In a world where governments feel ill-equipped to make even reasonable or limited regulations on speech, platforms devolve into the Wild West and marginalized populations get silenced. And I think this quote and its implications for law tease out the harm that can come from taking a laissez faire, neoliberal approach to free speech.
Most of the guests for this series have picked a quote that they really like. Often the quote is a personal favorite. But it sounds to me like you disagree with this quote. Is that right?
That’s absolutely right. The reason I chose this quote is because it is probably the dominant understanding of free speech law in the United States. As a society, we have become so paranoid about government regulations, so laissez faire about even reasonable limitations. But limited government in all areas can actually be dangerous. Our government has taken such a far step back that it has left people behind.
I’ve written a lot about the harms associated with harassment online. And I’m not the only one. [Stephen Harrison note: See Ari’s book recommendations below.] A lot of scholars are writing about how the marketplace of ideas concept has been harmful.
Can you help me understand how the marketplace of ideas metaphor harms people?
If lots of people at a market in Union Square are trying to sell their goods, it’s not the person with the best-quality products who makes the sale. More often, it’s the person with the loudest megaphone, the brightest color sign, the slickest marketing campaign, the sexiest dancers… The most powerful seller gets the most customers.
Similarly, without any regulation, the person with the biggest megaphone, or the largest posse behind them, shouts and silences the minority. Take Twitter, for example. Although Twitter has tried somewhat to reduce hate speech on its platform, it is still a great/terrible example of how hateful people with a megaphone and followers can hound and silence marginalized populations. In recent years, notable women, transgender people, and queer people have all left Twitter because they were on the receiving end of long-term harassment and stalking.
Think of it this way: Twitter tried to create a “marketplace of ideas” and instead created a cesspool of hate and harassment. That’s because it refused to put any reasonable limitations on what people can say and do to each other for many years.
There is the problem of harassment online, and also the issue of deliberate misinformation.
Exactly, yes, the problem of fake news. Civil libertarians and neoliberals say that we shouldn't do anything to regulate fake news on platforms because we're going to end up restricting legitimate free speech rights. They argue that it’s better to have fake news “fight it out” with real news in the marketplace of ideas and eventually people will choose what’s best for them.
But social scientists have repeatedly proven that in an unregulated environment, the fake sensationalized news will always win out! On social networks like Facebook and Twitter, sensationalized hot-button stories get passed around more often and more quickly, and these sensational stories are often fake.
Cognitive psychology shows that we’re more inclined to believe things that conform to our original biases whether or not they’re true. And even if there is a little pop up next to a piece of fake news that reads—“This source cannot be verified”—it doesn’t matter. People are still going to believe the first thing they see.
Several cognitive biases get in the way of us deciphering fake news from real news. It’s a market failure. And it shows how the marketplace of ideas metaphor doesn’t adequately address the way we consume information today.
You’ve argued that the marketplace of ideas metaphor does not work well in the context of free speech. What are your thoughts on applying this metaphor in the context of privacy rights?
In the United States, we have a market-based approach to consumer privacy. (We also call it “consumer privacy” as opposed to a “fundamental right” to privacy, as they do in Europe.) The dominant means of regulating personal data in the United States is what we call “notice and consent.” Now, this is a market-based solution if ever there was one! Companies must provide us with information about how they use our data (notice) and then they must give us an opportunity to agree (consent). And if we don’t consent, we can use another platform. You see it all the time with those click-to-accept buttons when you register or buy something. Of course, hardly anybody reads those privacy policies even though they are supposed to give us the information we need to make a decision. Companies will argue in court that you consented to give away all of your personal data.
Is there another metaphor or framework besides the marketplace of ideas that you think would be more descriptive?
In the context of privacy, the better way of explaining what happens is that it’s straight-up manipulation and coercion. These are predatory business practices that are manipulating individuals into subjecting themselves to a hegemonic power. Now that might sound a little Marxist, but on this point he was right. What happens is that technology companies, who control capital, leverage the powers they have over design. As individuals, we have no way to intercede in that. So the technology companies can manipulate us into doing things that we wouldn’t otherwise want to. It’s a form of surveillance capitalism to manipulate and prey upon individuals. There’s really no other way of looking at it.
Some people might say that businesses have been trying to manipulate our desires for a long time—that’s just marketing. But that’s not a persuasive response to me. Over the course of history we have taken robust steps to regulate market manipulations when companies have gone too far. That’s the case here where technology companies are coercing us to share personal information.
Justice Holmes died in 1935. I’m curious: do you think he would still be a proponent of the marketplace of ideas metaphor if he were alive today?
That’s a really good question, and it’s hard to answer because there are so many different models from justices who served for long periods on the Supreme Court. In his private life, Justice Holmes was very conservative. He didn’t like the fliers that were at issue in the Abrams case. But he wanted to protect the speech because he believed it should have a chance in the public square.
It’s possible Holmes would have changed with the times and would respond to how the First Amendment has been weaponized today. The powerful are now using free speech as a weapon against equality. Holmes could recognize that a total laissez faire approach has in fact hurt marginalized communities and he would shift his ideas. Because the libertarian approach of the marketplace of ideas is in fact silencing the minority voices that he was trying to protect in the Abrams case.
Again, the reason I selected this quote is because the marketplace of ideas sounds great. But when you go under the hood, you realize that it is a tool of entrenched power. And in order to preserve our democracy, we must push back against this doctrine.
Ari’s book recommendations:
- The Cult of the Constitution, Mary Anne Franks
- Hate Crimes in Cyberspace, Danielle Keats Citron
- The Age of Surveillance Capitalism, Shoshana Zuboff
I’ve interviewed more than 50 notable people about a quote of their choosing. Here are 5 conversations that changed my perspective.