Monday, April 12, 2010

Free Trade in Ideas

Normally, people debate free speech issues by referring to the marketplace of ideas. They attribute the phrase to Justice Oliver Wendell Holmes, even though, as I am sure they know, he actually used the phrase: "free trade in ideas."

Be that as it may, some of the best minds in the legal profession recently got together to discuss the issue at NYU Law School. Stanley Fish brought this confab to our attention in his New York Times blog. Link here.

At issue was the recent, much disputed, Supreme Court decision, dubbed "Citizens United." There the Court decided that corporations could support political candidates by advertising during political campaigns. The practice had been prohibited by the McCain-Feingold campaign finance law, so the Court, with its decision, was declaring that one aspect of the law infringed on constitutionally protected free speech.

Most of those who commented on Fish's post were intrigued-- as he undoubtedly intended-- by his last line, where he said that something about the meeting was making him "nervous."

I cannot speak for Stanley Fish, but I will happily share with you what made me nervous about the meeting.

The most disturbing aspect of the meeting was that everyone took for granted that the the decision had been wrongly decided. There was no free trade in ideas about the correctness or incorrectness of the decision; only a discussion about how to overturn the decision.

In their modus operandi the assembled lawyers were ignoring the marketplace of ideas in favor of their own dogmatic beliefs. These defenders of the marketplace of ideas were constitutionally incapable of finding any merit whatever in an opposing viewpoint.

After all, there is no free trade in ideas if you cannot respect differences of opinion.

In market terms, they are not free traders; they are mercantilists. They will go to any lengths to protect their home-grown industry-- the world of liberal lawyers-- at the expense of a free market that might provide a better product at a better price.

When he referred to free trade Justice Holmes was not asserting that the world is a debating society or a courtroom drama. He did not see the truth as a consensus opinion of great legal minds. He did not even see justice as the goal of his work. As he famously told Judge Learned Hand one day, his job was not about doing justice. His was to ensure that the game was played according to the rules. Justice Holmes was not an idealist.

For a pragmatist like Holmes the truth was not decided through debate and deliberation alone. Democratic deliberation allowed the government to establish policies. Once those policies were enacted and implemented deliberation and debate would judge whether they had worked or not. Further debate would establish the truth of the effectiveness of the policies.

His view of free speech would have been of a piece with his writings on the British Common Law. As opposed to a civil code that is invented whole cloth by a group of people in a room, the Common Law was accreted on a case by case basis as judges decided different disputes and conflicts. The decisions that were found to be most sensible over time and that offered judgments that were accepted as reasonable by everyone involved became enshrined in the Common Law.

Holmes trusted the rationality of all participants in the system, and wanted it to replace the dogmatic beliefs that formed the basis of what he called "fighting faiths."

If you refuse to allow an idea (whether a policy or a belief) to be tested against reality, then the question becomes who has the strongest faith. True believers are willing to fight and die to prove that their strength is strongest, thus, most true.

The meeting at NYU Law School was not a deliberative debate; it seemed like a war council whose goal was to work out how to overturn a Supreme Court decision.

Why were the assembled liberal lawyers so lathered up about the Citizens United decision. Simply, because they believed, dogmatically and unthinkingly, that corporate money was fundamentally corrupt and corrupting. Corporations were sinners; they had acquired their money by less than idealist means; they had no right to try to influence the democratic political process.

Again, dogmatic belief leads to a fighting faith. Why? Perhaps they wanted to maintain their own monopoly control of correct opinion. The greatest enemy of free trade in ideas today is the monopoly on dogmatic belief that is maintained by the educational and media establishments.

Surely, opposing views are aired, through conservative talk radio and through Fox News. But these engines of the free market in ideas are often subject to attack. Those who prefer a more mercantilist, monopoly control over the marketplace in ideas, want to invoke the fairness doctrine to shut down much of conservative talk radio. They often try to discredit Fox News for trafficking in hate speech.

As several of the commenters on the Times site pointed out, none of these great legal minds seem to have the least problem with the influence that labor unions exert on elections through their political advertising. At a time when the political power of labor unions has brought states, cities, and counties to the brink of bankruptcy... lawyers are about to go to war to stop corporations from spending money on political advertising.

Also, no one seemed to have had any problem with media conglomerates, i.e, corporations, promoting candidates or issues through their news operations.

A contrary spirit might suggest that these lawyers seem to be worried about losing their own power. And not just their power over correct opinion.

They know that if corporations run political advertising, then one of their major issues will be tort reform. If anything horrifies litigators, it is the two words: tort reform. So these lawyers are in high dudgeon over the influence of corporations, but they do not ask themselves whether their own position is venal and self-interested.

Why so? Because they do not believe that they, like John Edwards, are litigating to get rich. They believe that they are fighting for justice. In their mind, the great idea of justice represents a supreme virtue, while profit must involve vice.

Why are they so afraid of corporate influence? Look at it as disguised theology. The lawyers are implying that corporations are so fundamentally corrupt and sinful that if the the general populace is fully exposed to their tempting satanic ideas, it is going to be seduced into voting Republican.

Sin and temptation... coupled with a baseline theological belief that corporations do the devil's work and that the legal profession has a sacred duty to protect people from this temptation... that will give you a better take on what was going on at NYU Law School.

Picture it: a group of lawyers, all of whom, I surmise, would fight to the death to defend the rights of pornographers and to limit the regulation of pornography, and who would fight to the death to liberate us from laws against blasphemy-- unless it's blasphemy against Islam--, are happy to impose limits on political speech. Without thinking that there is anything strange about it at all.

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