Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
I can’t go along too far without stopping here. It is the very first amendment, after all. It looks after the Washington Post and churches and synagogues and mosques and our right to gather with our friends. It has created a safe harbor for the KKK and the internet and the prayers of Native American inmates. It has protected our right to yell at our members of Congress at town halls, and it shields us from the Baptists taking over our schools. It is the taproot from which a democratic society grows.
And yet—for all of its breadth and depth—if asked, the vast majority of Americans would summarize the First Amendment as “free speech.” To the extent that we love to believe in our inherent superiority over other mammals, our ability to formulate ideas and launch them from our bodies is our go-to evidence. It’s odd, really, when you start to break it down. Sort of like when I catch a glance of my dog out of the corner of my eye. She’s just sleeping on the bed or eating the crust off one of my daughters’ sandwiches, and I’ll think, Oh my God, we’re living with an animal. The familiar becomes completely remarkable—and almost grotesquely exotic—in that moment.
So it is with speech. Just consider the mechanics for a second. The speech therapy company Speech Buddies describes it like this:
The most basic principle of speech production is that all sounds are produced by moving air. Air moves from the lungs to the mouth via the throat. The vocal folds (or vocal cords) vibrate as needed… And then the articulators (mouth, lips, tongue, cheek, palate, etc.) shape specific sounds.
And with that, we tell secrets and call children to dinner and coax others to love. We create and destroy empires. We plead with God. And writing, with our fingers gripping a pen or pressed across a keyboard, we pour out into the world that which is otherwise inside the body. (As Whitman put it in “Song of Myself”: “I have heard what the talkers were talking, the talk of the beginning and the end.”)
Those practices—those tiny, quirky bodily practices—are also the basis of the vast majority of our conflicts with one another. We have become so good at it, this speaking and writing, that we wound one another with regularity and provoke one another to all forms of violence. You can see why it would be tempting to ban some of it—speech—as much trouble as it causes. But our decision to protect it all is one of the benchmarks by which we have decided to define ourselves and judge everyone else.
For a long time now, the central metaphor in free speech jurisprudence has been the “marketplace of ideas.” Justice Oliver Wendell Holmes first introduced the concept in 1919 in his dissent in a sedition case—Abrams v. United States—in which the two defendants were charged with attempting to impede the war effort during World War I. Their offense was circulating leaflets—one in English and one in Yiddish—denouncing the war and advocating for a socialist Russia. In a 7–2 decision, the Supreme Court upheld criminal convictions and twenty-year sentences for Mr. Abrams and his co-defendant. Justice Holmes, however, wrote the dissent, arguing that the leaflets should have been protected speech and introducing the metaphor that would dominate free speech thought for at least a century:
The ultimate good desired is better reached by free trade in ideas… The best test of truth is the power of the thought to get itself accepted in the competition of the market.
He went on to say, “The truth can be expected to emerge only when all ideas are free to compete for rational acceptance.”
I am not certain where I was when I first heard about the marketplace of ideas. I suppose I must have been in David Cole’s first-year con-law class, watching him nervously—and in my mind, adorably—pace the front of the classroom. He would walk to one edge of the carpet, narrow face and big glasses pointed down, looking up only to turn and walk back to the opposite edge. Whether or not I heard of it there, on one of Cole’s trips across the rug, I do know, from the very beginning, I loved it. It felt right; it felt human-scaled. The market that immediately lodged itself into my imagination was the square—the souk—in Marrakesh.
In my dithering over whether to attend law school, I took a couple of years off. The first year, I spent teaching in Japan. The second, I headed for the Trans-Siberian Railway. An American friend (whom I met on my first day in Japan) and I took a ferry from Sakaiminato to Vladivostok and then the long train trip to Moscow. We spent a good part of the summer and fall straggling around Europe along with all the other twenty-two-year-olds. But we kept hearing stories about Morocco, so in November we bought long dark skirts and day packs and took off from Spain, leaving our big backpacks in the ferry station lockers in Seville. The train trip from Tangier, where the ferry landed, to Marrakesh was a dream state—hour after hour of treeless taupe, peppered with the occasional cluster of bright pink and blue houses, then back to taupe. We had received all sorts of warnings about the risks for women alone in Morocco. But the souk in Marrakesh was everything I ever imagined it could be: rolled carpets and bright spices and even what I most feared—a snake charmer, with a cobra in a pyramid-shaped basket. But it was the oranges I remember the most, each stall stacked higher than the next. (Think of Neruda’s ode: “Orange / the world was made in your likeness / and image.”)
So when the brilliant and awkward and charming David Cole introduced the marketplace of ideas, that is what came into my head—competition between date sellers and spice shops and orange merchants for what is sweetest, most fragrant, shiniest. I suppose the marketplace that Holmes and Cole imagined was the Greek agora or the Roman forum, where philosophers and politicians debated road placement and taxation alongside wine sellers and gossiping householders. But close enough. And close enough to the sweet ten-stall farmers’ market that opens in my neighborhood on Wednesday nights in summer.
Oh that it were so! That the competition was just between whether to buy new potatoes or broccoli for dinner. But those markets do not stand alone. Those human-scaled markets—in Marrakesh and ancient Athens and Southeast Portland—are far from the global markets of Tokyo and Dubai and Wall Street. Those massive, consolidated markets—and all they impose on us—are impersonal and distant and impenetrable.
As I think about the metaphor of the market and what it means for us now, I can’t help but be reminded of the middle section of Allen Ginsberg’s mighty poem “Howl.” In that section, Ginsberg rails against a rapacious, corporatist demon, whom he calls “Moloch”:
What sphinx of cement and aluminum bashed open their skulls and ate up their brains and imagination?
He goes on from there:
Moloch the incomprehensible prison! Moloch the crossbone soulless jailhouse and Congress of sorrows! Moloch whose buildings are judgment! Moloch the vast stone of war! Moloch the stunned governments!
And on:
Moloch whose love is endless oil and stone! Moloch whose soul is electricity and banks! Moloch whose poverty is the specter of genius! Moloch whose fate is a cloud of sexless hydrogen! Moloch whose name is the Mind!
And on some more after that, which I will spare you for now. Ironically, though probably not surprisingly, “Howl” was at the center of a storied free-speech trial in which poet and publisher Lawrence Ferlinghetti, owner of City Lights Books, and the manager of the bookstore, Shigeyoshi Murao, were criminally charged and tried for distributing obscenity. The trial has been written about many times and was adapted into a movie in which that twittery James Franco played a credible Ginsberg. In the end Ferlinghetti and Murao were acquitted, and “Howl” took its place alongside James Joyce’s Ulysses as a victor in the war against the cramped imagination of the US government. And yet “Howl” and the case surrounding it still serve as a kind of warning flare. As much as I love the metaphor of the market in its most romantic form, it remains fraught and dangerous so long as the orange sellers are faced off against Moloch. This is where we start to bump up against the false equivalencies underlying Citizens United. Sure, my friends and I register to vote and protest and hold house parties to raise money for our favorite candidates. But we are not going head-to-head with our neighbors or even the middle-aged ladies in Memphis who support the other side. That would be the souk version of the marketplace of ideas. Rather, we are facing off in a marketplace that includes Monsanto and GE and Hobby Lobby. When the scale of the market is weighted with that much money and power and influence, we can’t credibly believe that the best idea is bound to prevail. And we cannot have faith that individual voices, whether they are in Memphis or in Portland, will be heard over the roar of the machine.
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Rumpus original art by Becca Shaw Glaser.
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Read Marissa Korbel’s interview with Wendy Willis about These Are Strange Times, My Dear here.
From These Are Strange Times, My Dear: Field Notes from the Republic. Used with permission of Counterpoint Press. Copyright © 2019 by Wendy Willis.
