Don't we believe in the 'marketplace of ideas' any longer?

Don't we believe in the 'marketplace of ideas' any longer?
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For so long, we essentially have believed, as a people, that truth is best found through the exchange of ideas, even contrasting ones. But is it really so anymore? Can it really be, as some might hold, that truth is better found by simply adhering to common beliefs, without allowing another point of view to surface?  

Take, for example, a newspaper that publishes a conservative U.S. senator’s opinion piece about rioters and then apologizes for it and accepts the resignation of its opinion editor because of the staff’s opposition to it. Or the university that revokes a deanship over the dean’s legal representation of Harvey Weinstein in his sexual misconduct cases. Or another university that, because of student opposition, canceled a virtual commencement address by Ivanka TrumpIvana (Ivanka) Marie TrumpUS should support Ngozi for WTO Director General   Trump administration awarding M in housing grants to human trafficking survivors Deutsche Bank launches investigation into longtime banker of Trump, Kushner MORE because of her father’s unrelated, controversial reaction to protesters in D.C. streets. 

In 1919, Justice Oliver Wendell Holmes famously dissented in Abrams v. United States from the Supreme Court’s decision upholding convictions for anti-war leafleting. Holmes opined that “the best test of truth is the power of the thought to get accepted in the competition of the market” — later and better known as “the marketplace of ideas.” Meaning, it is only when a position is directly confronted by oppositional thought that truth will out.

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Of course, Holmes spoke in the limited context of governmental silencing of dissenting thought, and therefore addressed the high stakes of a constitutional right in connection with the government’s war efforts, no less. Now, those who would limit or not even allow the airing of dissenting or opposing thought when government isn’t the would-be silencer seem to ignore, or even reject, Holmes’s view. That is, his view that truth is best procured by the airing of competing thought — as has happened with Confederate Gen. Robert E. Lee, for example, leading to a major revision of how many now think about him.  

Here’s the broader issue: Don’t we best learn the falsity of, or lack of merit in, what “Doe” tells us only with the opportunity to also listen to “Roe’s” point of view? Put otherwise, if Roe’s point of view can’t be found in the market on the shelf alongside Doe’s, we are only able to acquire Doe’s, never coming to know that Roe’s may be the better product. Or here, the better thought — maybe even the objectively truthful thought.  

When Pontius Pilate, somewhat mischievously, asked Jesus if he was the “King of the Jews,” Jesus responded: “I came into the world to testify to the truth. Everyone who belongs to the truth listens to me.” Pilate famously retorted, “What is truth?”  

Now, 2,000 years later and often not over the issue of religious creed, we are left with the same question: What is truth? And just as was the case then, we often find an unwillingness by opponents of those who propose to proclaim their “truth” to even allow what they have to say. Surely not at the extreme penalty of crucifixion, but certainly at the penalty of a censorship that silences their ability to articulate their opinions in the public square -— whether that public square is an op-ed page, a speaker’s podium at a university graduation, or wherever articulate opponents of challenged thinking can drown out the proponent’s voice, all venues where government isn’t the would-be censor and considerations of First Amendment censorship aren’t directly implicated.

Unquestionably, in advocating against those who would suppress the airing of dissident, unpopular or even traditional views on issues of societal concern, we must be mindful that often it’s the louder or more charismatic voice that may be most convincing to the masses. He or she may not be speaking anything even approaching “truth,” but nonetheless is somehow able to present the most persuasive advocacy about it. Do we not allow him or her to speak — and the same for a less articulate opponent?

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The truth — no pun intended — is that there often is no objective truth. Rather, truth may be an evolving process regarding an issue in question. Or, as in the case of religion, your truth is and may always be different than mine. As long as the preaching of hate, violence, harmful falsity, criminal syndicalism, or intentional defamation aren’t implicated, why shouldn’t you or I be able to speak publicly about who or what we think God is, or isn’t — if at all? Why shouldn’t we be able to speak in the public square for or against modern issues such as abortion, a two-state solution in the Middle East, the value of wearing a face mask during a pandemic, reparations for African Americans, defunding the police, the death penalty?  

There may be those who speak to these and other pivotal issues who don’t warrant a listening audience. But not because they’re not allowed to speak, or because their speech is drowned out by unreceptive voices. Members of the public can censor out for themselves voices that they just don’t want to hear. Simple answer: Don’t listen, or don’t attend. Isn’t that what we, as free people, believe in — indeed, what the Founders intended by the Bill of Rights?

It may be that, empirically, what Holmes said about truth best surfacing in the cauldron of contrasting thought is itself wrong. Maybe truth surfaces only sometimes in that venue. But, even so, do we really want to deprive ourselves of those instances when robust debate does indeed get us to the place of truth? 

Those who don’t accept Holmes’s formulation might prefer Justice Louis Brandeis’s in Whitney v. California: “If there be a time to expose through discussion the falsehoods and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.” 

Just consider how much the force of American intellectual thought would have suffered had the voice of Brandeis been drowned out or “canceled” by naysayers who opposed him — simply because he, a Jew, believed in God differently.

Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan. He is the author of “Blindfolds Off: Judges On How They Decide” and teaches a class at both Fordham and Cardozo Law Schools in New York based on the book.