Holmes’ idea marketplace – its origins & legacy

Thursday, May 13, 2010

“The thing I … want to do is put as many new ideas into the law as I can, to show how particular solutions involve general theory, and to do it with style. I should like to be admitted to be the greatest jurist in the world.”
— Oliver Wendell Holmes Jr., Dec. 15, 1912

All know it. It is casebook gospel. Justice Holmes’ dissent in Abrams v. United States (1919) is considered one of the greatest works ever published on freedom of speech. So great has it become that no serious treatment of the First Amendment can overlook it. As Professor Lee Bollinger has noted, “within the legal community today, the Abrams dissent of Holmes stands as one of the central organizing pronouncements for our contemporary vision of free speech.” Holmes’ dissent, scholar Sheldon Novick said, “is at the root of modern First Amendment protections.” In its own secular way, the opinion has become canonical.

Praise came early on. It was a “remarkable” dissent, wrote the editors of The New Republic shortly after the Abrams opinion came down. The opinion revealed the justice’s “grasp of juristic principles and his political wisdom,” they added. And it accomplished this feat with “memorable words.” In Zechariah Chafee’s more scholarly eyes, Holmes’ dissent was nothing less than a “magnificent exposition of the philosophic basis” of the First Amendment. And for the ever-admiring Harvard Law Professor Felix Frankfurter, what Holmes had done was to “lift the voice of the noble human spirit.”

In good measure, that fame is attributable to the literary quality of the famous dissent. Frankfurter predicted: “It is not reckless prophecy to assume that his famous dissenting opinion in the Abrams case will live as long as English prose retains its power to move.” And that posthumous fame, which continues strongly 91 years after Holmes unleashed his gripping opinion, is tied largely to what has come to be known as the “marketplace of ideas” metaphor.

Where did it come from? How did Holmes, and others, fashion it to become what we know of it today?

Of course, Holmes never actually used the phrase “marketplace of ideas.” What he wrote in Abrams was this: “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.”

In one way or another, Holmes’ marketplace metaphor traced back centuries to the writings of the English poet and political thinker John Milton. In Areopagitica (1644), Milton wrote: “And though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously by licensing and prohibiting to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse in a free and open encounter?”

John Stuart Mill expressed similar ideas in On Liberty (1859). In May 1866, the young Holmes met and dined with John Stuart Mill. Mill’s thinking left an impression on Holmes’ mind.

Then there was Harold Laski’s Authority in the Modern State (1919), which was dedicated to Holmes and Frankfurter. In that work Laski wrote that it “is in the clash of ideas that we shall find the means of truth. There is no other safeguard of progress.”

Delayed reaction
Despite all the initial praise for Holmes’ Abrams dissent and the current widespread use of the phrase “marketplace of ideas,” it took a half century before that expression came to be associated in any federal or state appellate court opinion with Holmes.

In United States v. Rumely (1953), Justice William O. Douglas wrote a concurrence that in relevant part declared: “Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.” This was the first time the phrase had appeared in any federal or state appellate court opinion. Before 1970, federal and state appellate courts used Holmes’ precise phrase — “get itself accepted in the competition of the market” — only 15 times.

After Justice Douglas’ 1953 use of the marketplace-of-ideas metaphor, the phrase was used sparsely in law before 1970, being employed in matters like property-dispute and local-government cases. In 1954, Pennsylvania Supreme Court Justice Michael A. Musmanno looked upon the seldom-invoked phrase with disdain in his dissent in Clark v. Meade: “The incredible paradox is that while some political science academicians see something calamitous in a typist or file clerk expressing a preference for mayor, governor or president, they at the same time argue strenuously for free speech for Communists (using the glib phrase of ‘a market place of ideas’).”

By 1965, the phrase began to gain more legitimacy in the courts after Justice William Brennan invoked it, again without mentioning Holmes, in his concurrence in Lamont v. Postmaster General (1965). He wrote: “I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”

In other words, for decades after the Abrams dissent courts had little awareness of or interest in the marketplace maxim. And when they first began to see the phrase in appellate court opinions, it was not associated with Holmes.

What this sketch of judicial history suggests is that the great Holmesian idea expressed in Abrams depended on rhetorical refinement for its general acceptance in the law.

In the half century or so after Justices Douglas and Brennan used the “marketplace of ideas” metaphor, some 1,000-plus appellate courts have echoed it in published opinions. Indicative of that trend toward judicial acceptance of and reliance on that metaphor, in the last decade alone it has been invoked often by liberals and conservatives alike in Supreme Court opinions involving government speech, campaign contributions, the establishment clause, “true threats,” election law, and in commercial-speech cases, among others.

Perhaps it is not surprising that Holmes’ market metaphor, at least as recast by Douglas and Brennan, should enjoy common acceptance in our highly commercial culture, and that culture has in turn helped to shape the law of free speech in America.

Nonetheless, while the phrase has won much acceptance in our courts and culture, it has enjoyed a far less enthusiastic acceptance in some of the scholarly literature. Noted First Amendment scholars such as C. Edwin Baker, Vincent Blasi, Owen Fiss, Frederick Schauer, Steven Shiffrin, Rodney Smolla, and Cass Sunstein, among others, have criticized the metaphor, sometimes sharply.

To be sure, many also view the metaphor as key to any healthy system of freedom of expression. As the late Professor Mel Nimmer once put it, “If acceptance of an idea in the competition of the market is not the ‘best test,’ [then what] is the alternative?” Hence, even if one doubts the wisdom of the market model as the sole reason for affirming free-speech claims, it is hard to deny it any role in the First Amendment scheme of things.

The idea would have greatly pleased Holmes: His stylish new ideas have survived the test of time.

Ronald Collins is the Harold S. Shefelman Scholar at the University of Washington Law School and a fellow at the First Amendment Center. Portions of this article derive from his next book, The Fundamental Holmes: A Free-Speech Chronicle and Reader (Cambridge University Press, June 2010).