Though he didn’t use the exact phrase, the concept is generally credited to Supreme Court Justice Oliver Wendell Holmes.
The case was Abrams v. US (1919). The defendants had produced and given out leaflets that criticized the American attack on Russia in strident and colorful terms, and called for a general strike. An amendment to the Espionage Act of 1917 had made it a crime to criticize the American government. Holmes wrote:
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.
It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
It is worth noting that his opinion was a dissent. It should make us aware that American governments can make free political speech a crime and that certain Supreme Courts will support them.
Most of us would automatically think that it wouldn’t happen today. Perhaps not.
But if we rephrased such a law in terms of contemporary fears, say one that makes speech that could be construed as material support for terrorism, it becomes plausible. How would this court stand in regard to the marketplace of ideas? Boldly, like Holmes? Or like the 1917 majority?
Last year the Military Commissions Act of 2006 was passed, which stripped “unlawful enemy combatants” of the right to habeas corpus, a right far older, better established, and less threatening than that of free speech.
An appeals court upheld the law. The current Supreme Court let the decision stand. It has recently reversed itself and agreed to hear the case. It’s worth watching.
There have been two recent free speech cases.
In one, the Supreme Court ruled that a high school principal has a right to tear down a sign held up on a public street near a school function that said “Bong Hits for Jesus.” Part of their reasoning was that it advocated illegal drug use (as opposed to advocating the use of Zoloft, Lunesta, and Cialis), an opinion so unfashionable as to have no legitimacy, no protected right to enter the market.
At the same time, the justices struck down a portion of the McCain-Feingold law that limited campaign spending on advertising by corporations and unions. Essentially they ruled on their gut feeling that a corporation with enough money to buy television time has unlimited free speech rights; certainly more rights than an individual with a homemade poster.
This reveals an additional truth about Holmes’s idea. One that went so unremarked as to be invisible. It is that ideas are not merely in a metaphorical marketplace, they’re in an actual marketplace. This is because in 1917 big money was not explicitly in the idea business. They are now. In a big way.
We can actually mark when it happened. It was 1934, in reaction to the New Deal.
Back then the big money was in making things and the most important business association was the National Association of Manufacturers (NAM). Appalled by social security, public works, government regulating business and protecting unions, NAM explicitly committed to going on a public relations offensive.
They had a simple, basic message: Government is bad and business is good. All government-run operations are needless boondoggles. Since they have the force of law they are a form of oppression. Though we vote for legislators who pass the tax laws, once that happens, we are required to pay for them. Which is oppression. Taxes are, therefore, evil.
Free-market capitalism is a more creative, productive, and efficient solution, and produces more good for more people. Indeed, it has produced everything that’s good in America. And it’s what makes America better than anywhere else. Since it leaves us the “choice” to buy or not, it represents freedom. Buying makes us happy! And buying is good!
NAM was very successful. Indeed, all of us have those ideas in our heads. The vast majority of us believe them at least to some degree, and many of us believe them completely.
And there is a certain amount of truth to them. But there are untruths too. The unnamed, and largely untrackable, big money and big business people who run the game know that quite well.
Notice that the campaign was selective. The obvious exception is defense spending. That defense spending should be unlimited and is almost beyond questioning. Military force protects business interests.
More subtly, notice that free public education, paid for by taxes, was left out of the attack. (Until recently, as anti-tax ideology took on its own life, integration caused white resentment, and right-wing religion began to fight secular thought.) This is because an educated workforce is good for business. It represents a gigantic invisible subsidy. What would it cost free enterprise to teach its work force how to read, reason, and do sums?
There has never been an attack on building roads and a lot of other infrastructure. That’s because the government takes money from us, through taxes, and spends it through private business. Which makes business happy. And it provides an invisible subsidy for developers, for the places we go to shop, for the employers who need us to get to our jobs and need the roads to get their supplies and deliver their products.
The health care debate is a perfect example of how money changes the metaphor in a “real” market.
If ideas alone were battling it out in a metaphoric marketplace, where reason v. reason would determine the result, we would go directly to a tax-based national health care system. All such systems in other industrialized countries produce better health care at half or less of what we spend.
Everything that opponents say is wrong with such systems—bureaucracy, waiting time, rationing of care, lack of choice—already exists in the hodgepodge, for-profit system we have now.
Private insurance companies, HMOs, and other health care corporations have the same imperative as any other business, take in as much money as possible, spend as little on the product as possible. With their overheads, profits, advertising, PR, and lobbying, they add the extra, nonproductive costs that make our system more expensive than any other.
Additionally, when employers pay for health care, that makes them noncompetitive with businesses in countries where they don’t.
The case is so clear and compelling that reason might actually win over the years of propaganda that big money has been pumping out.
But there is one additional twist in the marketplace. For such an idea to be put in place, politicians have to embrace it.
To win in politics in America today requires vast sums of money. All the Republicans running for president, and all the Democrats (except Dennis Kucinich who has no money and is therefore treated as someone who can’t win, which means that he can’t) support the basics of the health care system we have now.
In the marketplace of ideas the power of big money is kicking ass and rationality is down for the count.