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Radiolab

What Up Holmes?

with Thomas Healy, Sinan Aral, Nabiha Syed

Published October 24, 2025
View Show Notes

About This Episode

This episode traces how Supreme Court Justice Oliver Wendell Holmes, initially hostile to broad free speech protections, radically changed his views during World War I and authored the famous Abrams dissent that introduced the 'marketplace of ideas' metaphor. The hosts, along with law professor Thomas Healy, explore what caused Holmes's shift, then examine how that marketplace metaphor has shaped a century of First Amendment thinking and how it breaks down in the age of social media and misinformation, drawing on MIT researcher Sinan Aral's Twitter study and media lawyer Nabiha Syed's critiques. The episode closes by proposing that free speech should be seen as an ongoing democratic experiment that must be continually rethought, including by centering listeners' rights and information health.

Topics Covered

Free speech and censorship Supreme Court cases Media trust and propaganda Data-driven decision-making Misinformation and disinformation Social media and online platforms First Amendment law Democratic deliberation

Disclaimer: We provide independent summaries of podcasts and are not affiliated with or endorsed in any way by any podcast or creator. All podcast names and content are the property of their respective owners. The views and opinions expressed within the podcasts belong solely to the original hosts and guests and do not reflect the views or positions of Summapod.

Quick Takeaways

  • Oliver Wendell Holmes started World War I as a justice who readily upheld convictions under the Espionage Act, but within eight months he pivoted to write a landmark dissent defending robust free speech.
  • Holmes's shift was influenced by his brutal Civil War experience, his belief in sacrifice for the nation, and a later circle of young progressive friends who challenged his thinking.
  • His Abrams dissent introduced the 'marketplace of ideas' metaphor, arguing that truth emerges from the free competition of ideas, which later became central to modern First Amendment doctrine.
  • Empirical analysis of Twitter data by Sinan Aral shows that false information spreads faster, farther, and wider than true information, undermining the functional promise of the marketplace metaphor online.
  • Media lawyer Nabiha Syed argues that free speech debates focus too much on speakers and not enough on listeners' rights to accurate information and on power imbalances in who gets heard.
  • Alternative frameworks for free speech include focusing on the public's right to essential facts for democratic participation and seeing the Constitution as an ongoing experiment that must adapt to new realities.

Podcast Notes

Introduction and contemporary context for free speech debate

Linking a recent online speech episode to a historical story

Latif references a recent conversation with Simon Adler and Kate Klonick on how free speech is playing out online today[1:57]
He notes that current social media debates trace back to the very origins of free speech in the United States[2:09]
He introduces the idea of the 'open marketplace of ideas' as central to why social media platforms are allowed to be so unregulated in terms of speech[2:38]

Introducing Oliver Wendell Holmes and Thomas Healy

Latif explains that the modern 'marketplace of ideas' notion can be traced back to one moment and one person: Oliver Wendell Holmes[3:08]
He plays archival-style narration praising Holmes as possibly the greatest Supreme Court justice in U.S. history[3:16]
Thomas Healy, a law professor at Seton Hall and author of a book on Holmes, is introduced as the main explainer of this history[3:24]
• Healy says Holmes laid the groundwork for modern free speech doctrine
Holmes's personal background: wealthy Boston family, Union Army service in the Civil War, later a Supreme Court justice in his seventies[3:35]
• He is described physically as having piercing blue eyes, thick white hair, and a prominent mustache extending past his face
Despite his later fame as a free speech icon, Holmes was originally strongly anti-free speech as understood today[3:58]

Holmes's pre-1919 views and World War I free speech cases

The Espionage Act and its broad restrictions on speech

In 1917, during World War I, Congress passed the Espionage Act[4:38]
• Congress feared criticism of the draft could undermine its ability to raise an army
The Act not only targeted spying but also criminalized speech critical of the U.S. government or the president, or deemed disloyal or scurrilous[4:56]
• This effectively made it illegal to debate the draft or question whether the war itself was a good idea
People were jailed for forwarding anti-war chain letters, giving speeches against the draft, or claiming the war was being fought to enrich financiers like J.P. Morgan[5:20]

Three key Supreme Court cases upholding the Espionage Act

In March 1919, three cases reached the Supreme Court: Schenck v. United States, Frohwerk v. United States, and Debs v. United States[5:34]
The Court upheld all three convictions and essentially ruled the First Amendment did not protect the speech at issue[5:38]
Holmes wrote the majority opinions in all three cases and was dismissive of free speech concerns during wartime[5:47]
• His attitude was summarized as: in the middle of a war, people must keep quiet or face prison
• He reportedly agreed with a sign reading 'damn a man who ain't for his country, right or wrong,' describing it approvingly to a friend

Holmes's Civil War experiences and collectivist reasoning

Healy explains that Holmes's Civil War service profoundly shaped his worldview[6:16]
• Holmes saw the Civil War as both a righteous war to end slavery and a brutal, barbaric conflict where many of his friends died
Holmes nearly died himself, saw most officers in his 20th Massachusetts Regiment killed at Gettysburg, and viewed himself as an accidental survivor[6:46]
He kept his bloodstained Civil War uniform hanging in his closet decades later, underscoring how vividly the war stayed with him[7:09]
Holmes reasoned that if soldiers risked their lives on the battlefield, it was a small sacrifice to demand domestic support and limit dissent at home[7:17]
• He analogized suppressing speech to compulsory vaccination: if vaccination might halt an epidemic, the state may infringe liberty for the greater good
• Holmes carried this logic into later support for forced sterilization in Buck v. Bell, which Radiolab has covered in a separate episode

The Abrams case and Holmes's sudden shift toward protecting speech

Abrams arrives eight months after earlier wartime cases

Eight months after the March 1919 decisions, in November, the Abrams case reaches the Supreme Court under similar circumstances to the earlier Espionage Act cases[8:16]
This time, Holmes breaks with his colleagues and writes a dissent while most justices vote to uphold the convictions[8:29]
In the Abrams dissent he declares that society should be 'eternally vigilant' against attempts to suppress opinions we loathe[8:38]
• This is a stark contrast to his earlier posture of locking up dissenters only months prior
Healy notes that Holmes had never previously expressed such pro-free speech sentiments, making his turn abrupt and puzzling[9:48]
This sharp 180-degree shift in less than a year has become one of the great mysteries in Supreme Court history and is the focus of Healy's research[10:00]

Healy's meticulous reconstruction of Holmes's life during the shift

Healy became obsessed with understanding why Holmes changed his mind and tried to reconstruct every day in Holmes's life over roughly a year and a half[10:12]
• He built a spreadsheet logging Holmes's daily activities, letters, and reading habits during the critical period
Holmes kept a record of every book he read, which allowed Healy to follow his intellectual influences closely[10:42]
Healy even read the books Holmes's friends were reading and writing to infer what might have come up in their conversations[10:45]

Holmes's young progressive circle and the House of Truth

Formation of Holmes's friendships with young progressives

Healy discovers that Holmes had become close to a group of young progressive intellectuals in Washington, D.C.[11:14]
• This group included future Justice Felix Frankfurter, New Republic editors Herbert Croly and Walter Lippmann, and socialist Harold Lasky, a 24-year-old Harvard teacher
They gathered at a townhouse in D.C. called the House of Truth, essentially a clubhouse for young progressives[11:41]
Holmes, despite being nearly 80, regularly stopped by, had drinks, played cards, and debated ideas with them[12:00]
Holmes craved debate and intellectual challenge, but many of his contemporaries had died and he found his fellow justices stodgy and unimpressive[12:19]
The young men idolized Holmes, writing fan letters, publishing laudatory articles, and serving as the 'sons he never had'[13:09]
• He and his young friends exchanged affectionate letters; he called them 'my dear boy' or 'my dear lads,' and they closed with phrases like 'yours affectionately' or 'yours always'
Holmes and these friends became so close that his wife Fanny snuck them in through the cellar for his surprise 75th birthday party[13:01]

Young progressives' campaign to change Holmes's mind on speech

These younger legal thinkers strongly disagreed with Holmes's restrictive wartime speech opinions[13:42]
Healy characterizes their efforts as an informal lobbying campaign over about a year and a half to get Holmes to rethink free speech[13:42]
In May 1919, they published a New Republic article criticizing Holmes's opinion in Debs, one of the earlier Espionage Act cases[13:52]
• Holmes was angered enough to draft a letter to the New Republic editor defending his position, emphasizing wartime lives and the draft
He ultimately decided not to send the letter, recognizing the Court would soon hear another related case, Abrams, in the fall[14:22]

The Abrams case facts and parallel to Holmes's personal dilemma

Facts of the Abrams prosecution

In 1918, men walking to work on a Friday morning found pamphlets scattered on New York sidewalks, some in English and some in Yiddish[14:40]
• The multilingual leaflets reflected the heavily Russian-Jewish immigrant population on the Lower East Side
The pamphlets urged workers to 'wake up,' called the president shameful, cowardly, hypocritical and a plutocrat, and warned that after fighting Germany the U.S. would turn against newly communist Russia[15:01]
They told factory workers producing bullets and bombs that their products would be used to kill loved ones back home and urged them to strike[15:30]
Detectives identified four Russian immigrant anarchists-three men and one woman-who had thrown the leaflets from Lower Manhattan rooftops[15:38]
They were convicted under the Espionage Act and their case eventually reached the Supreme Court in fall 1919[15:48]

Harold Lasky's crisis and Holmes's choice

At the same time the Court was considering Abrams, Harold Lasky publicly supported a Boston police strike[16:16]
Conservative Harvard alumni were outraged, pushing to have Lasky fired and threatening to withhold donations while he and Felix Frankfurter remained on staff[16:39]
Lasky sought help from Holmes, a prominent Harvard alum, asking him to write in defense of his right to express those views to save his job and reputation[17:49]
Holmes faced a dilemma: defend his friend and contradict his own prior judicial stance and soldierly instincts, or stay consistent and let Lasky be punished[17:37]
Holmes chose not to write the requested letter on Lasky's behalf[17:49]
Instead, that same week he wrote a 12-paragraph dissent in Abrams, stepping in for radical young defendants punished for their speech[18:00]
• Healy and Latif note the parallel: Lasky, a young radical threatened for speech; Abrams and colleagues, young radicals jailed for speech

Content and impact of Holmes's Abrams dissent

Key ideas in the dissent and introduction of the marketplace of ideas

Seven justices voted to uphold Abrams's conviction, but Holmes dissented[18:34]
Holmes argued that people should be skeptical of their own certainty and realize that time has overturned many 'fighting faiths'[18:46]
• From that humility, he concluded that the safest course is to hear opposing ideas rather than suppress them
He introduced the metaphor that the 'ultimate good' is better reached by 'free trade in ideas', with truth tested in the competition of a market[18:56]
• Holmes suggested that the best test of truth is a thought's ability to gain acceptance in this open competition
He wrote that people continually must wager their salvation on imperfect knowledge, and that this risk-taking is the theory of the Constitution[19:32]
He described the Constitution as an experiment and, more broadly, life itself as an experiment[19:35]

Reception of the dissent and its long-term influence

Other justices went to Holmes's house to try to dissuade him from issuing the dissent, but he insisted it was his duty[19:49]
Over the following decade Holmes repeatedly wrote strong free speech dissents, gradually persuading his colleagues[19:53]
Journalist Anthony Lewis later wrote that these dissents, especially Abrams, overturned the old cramped view of the First Amendment and amounted to a legal revolution[20:36]
The metaphor of the marketplace of ideas helped the doctrine spread quickly and widely, permeating court decisions and broader culture[20:28]
• Examples cited include schools being described as marketplaces of ideas and political rhetoric that the answer to bad speech is more speech
Latif notes the irony that if Holmes's dissent had been successfully quashed, the later flourishing of free speech might not have occurred, which itself supports the value of dissent[24:58]

Testing the marketplace of ideas on Twitter

Setting up the empirical question

Latif and the team point out that Holmes framed his argument functionally: in a marketplace, truth should rise to the top[25:22]
They suggest that platforms like Twitter are real-world marketplaces of ideas where data can reveal whether good ideas and truths actually prevail[26:06]
They propose examining whether true or false information spreads more successfully in this 'marketplace'[26:34]

Sinan Aral's Twitter misinformation study

MIT professor and data/marketing researcher Sinan Aral explains that he and colleagues decided to study how truths and falsehoods propagate on Twitter[26:21]
They collected every verified story that had spread on Twitter since 2006, using fact-checking sites as a starting point[26:49]
• Sources included Snopes, PolitiFact, Truth or Fiction, FactCheck.org, Urban Legends sites, and others
They assembled a list of all stories those sites had fact-checked across domains such as politics, business, science, entertainment, natural disasters, terrorism, and war[27:07]
For each story, they identified the first tweet that mentioned it and then reconstructed the entire retweet cascade from that origin[27:59]
The retweet patterns looked like branching trees, showing how far, wide, and fast each story spread[27:43]
• Some cascades were long and stringy, with one-to-one retweets; others fanned out with many immediate retweets and secondary waves
They measured depth, width, and the time it took each story to reach benchmarks like 100, 1,000, 10,000, or 100,000 users[27:41]

Findings: falsehoods outperform truth

Aral describes the results as the scariest he has found in his scientific career[28:28]
They found that false stories spread farther, wider, and faster than true ones on Twitter[29:00]
On average, truth took about six times as long as falsehood to reach 1,500 people[28:45]
Aral concludes that in the current information environment, truth is being consistently beaten by falsehood[29:07]
This evidence directly undermines Holmes's premise that the marketplace of ideas will naturally elevate true ideas over false ones[30:26]

Shifts since 2021 and reframing the free speech problem

Evolving misinformation landscape

Latif notes that their 2021 reporting on Twitter now sounds quaint given more recent developments[29:40]
He points out that platforms themselves have become more political, deepfakes are easier to produce, and tools like Sora 2 have been released[29:29]
He frames the current moment as a more complicated phase of online misinformation[29:37]
Despite this, he argues the upcoming conversation still holds up because it reframes how we think about truth and free speech, which he sees as half the battle[29:55]

Nabiha Syed's critique of the marketplace metaphor and focus on power

Introducing Nabiha Syed and her background

Latif introduces his friend Nabiha Syed as someone deeply knowledgeable about the First Amendment[30:07]
She is described as an award-winning media lawyer and president of The Markup, a nonprofit news organization investigating big tech[30:20]

Marketplace metaphor and unequal platforms

Nabiha argues that the marketplace metaphor ignores that some people have significantly bigger platforms, so their ideas get heard first and more often[30:31]
She notes that popular ideas attract 'joiners' who align with what appears to be popular, further amplifying already loud voices[30:42]
She shares her perspective as a Muslim woman after 9/11, when media narratives about Muslims as terrorists bore no resemblance to her own Orange County, Pakistani, celebrity-influenced life[31:09]
• She emphasizes that her community rarely got control of the microphone in those public conversations
Nabiha frames the problem as about power and megaphones, not just about abstract ideas circulating freely[31:31]

Marketplace of ideas as one theory among many

She points out that the marketplace of ideas is just one theory of free speech that platforms embraced because it is idealistic and convenient[31:50]
• Its laissez-faire, 'set it and forget it' quality made it attractive to social media companies that did not want to manage content aggressively
Historically, she notes, there have been other models that emphasize listeners' rights and the existence of objective truths people are entitled to know[32:12]

Alternative frameworks: listener rights and information health

Listener-centered view of free speech

Some free speech traditions ask what facts people need to live their lives and participate in society, such as whether a neighborhood well is poisoning them[32:13]
This view stresses that certain questions-like whether water is poisonous and why-are factual, not simply matters of subjective opinion[32:25]
Nabiha highlights that contemporary free speech debates focus on who gets to talk, assuming that if everyone talks, 'magic' will happen, while neglecting the listener's rights[31:58]
She asks whether listeners have a right to accurate information amid the speech cacophony[32:56]

Historical example: fairness obligations for broadcasters

Nabiha notes that in 1949, the government adopted a policy requiring news broadcasters to present both sides of an issue and supply facts about them[33:10]
This historical rule reflects an approach centered on the audience's need for balanced information rather than only on speaker liberty[33:05]

Information health as a guiding principle

Nabiha suggests rethinking modern information environments by starting from the facts people need for democratic deliberation at local and national levels[33:29]
She proposes focusing on 'information health' as well as on speakers' rights[33:34]
Latif observes that acknowledging these listener-focused concerns does not necessarily invalidate the marketplace metaphor entirely[33:45]
They note that the beauty of the metaphor can distract from vital questions about access, weighting of voices, and truth versus falsehood[34:03]
Latif muses that one could imagine a 'regulated market of ideas' with explicit assumptions about equal access and the treatment of truth and falsehood[34:03]
They immediately bump into the question of who would regulate such a market-courts, corporations like Facebook and Twitter, or others-and how that power would be allocated[34:17]
Nabiha points out that current regulators include courts that issued decisions like Citizens United and tech CEOs, arrangements that themselves are controversial[34:27]
This brings them back to the starting problem of who should regulate speech and how that authority should be negotiated[34:42]

Holmes's 'experiment' metaphor and continual rethinking of free speech

Healy's reflections on the marketplace and alternative metaphors

Latif returns to Thomas Healy to present Nabiha's critiques and ask for his thoughts[34:49]
Healy agrees that the marketplace model is currently broken and notes it is a strange, commercial way to conceptualize speech[35:06]
He suggests that instead of buyers and sellers of potatoes, we might think of ourselves as scientists searching for truth[35:16]
Healy highlights a second metaphor Holmes used in Abrams: describing the Constitution as an experiment and life itself as an experiment[36:19]

Experimentation as a model for democratic free speech

Healy interprets Holmes as recognizing that grappling with free speech in a democracy is a never-ending process[35:58]
He emphasizes that free speech does not make democracy easy; rather, democracy remains hard and requires constant adjustment[36:08]
From the experiment metaphor, Healy draws the lesson that systems must remain flexible, adapting when experiments do not go as expected[36:19]
Adapting includes generating new ideas and metaphors for understanding free speech when old frameworks, like the marketplace of ideas, prove inadequate[36:07]
Latif distills this view as saying that free speech theory should be constantly tweaked and refined in response to changing conditions[36:43]
He notes that the marketplace metaphor has served for about a century and that perhaps it is time to imagine a different theory[37:07]
When prompted for a new theory, Healy says he does not have it yet but is working on it, underscoring the open-ended nature of the 'experiment'[37:07]

Closing questions and credits

Inviting public input on better metaphors

The hosts invite listeners to suggest better metaphors or ways of thinking about free speech in modern society[37:33]
They provide an email address, radiolab@wnyc.org, and jokingly suggest avoiding Twitter given what the episode has revealed[37:38]

Pointers to guests' work and production credits

Listeners are told they can follow Nabiha Syed's work at themarkup.org[37:54]
The episode credits note that the story began with Thomas Healy's book 'The Great Dissent' and mention his newer book 'Soul City'[38:03]
Production credits list Sara Khari as producer, with thanks to Jenny Lawton, Soren Shade, and Kelsey Padgett, who conducted the initial interview with Healy[38:12]
Hosts Jad Abumrad and Latif Nasser sign off and thank listeners[38:23]

Foundation support acknowledgments

The episode closes with acknowledgments of leadership and foundational support for Radiolab's science programming from several foundations[39:18]

Lessons Learned

Actionable insights and wisdom you can apply to your business, career, and personal life.

1

Deeply held views, even by powerful and experienced people, can change quickly when they encounter sustained, thoughtful challenge and real-world dilemmas that expose tensions in their beliefs.

Reflection Questions:

  • • What long-held belief of yours has recently been challenged by new experiences or people you respect?
  • • How could you deliberately seek out a circle of people who will thoughtfully push back on your assumptions rather than simply agree with you?
  • • What is one issue where you could revisit your stance this month by examining how your actions affect specific individuals you care about?
2

Metaphors like the 'marketplace of ideas' are powerful but also constraining; they shape policy and norms, so they must be periodically tested against evidence and updated when they no longer fit reality.

Reflection Questions:

  • • Which metaphors or stories do you rely on to explain how your industry or community works, and are they still accurate?
  • • How might examining data or real outcomes in your environment reveal where your favorite metaphors are breaking down?
  • • What is one metaphor you could consciously retire or revise this year to make your thinking more aligned with how things actually function?
3

Focusing solely on the rights of speakers misses half the picture; robust systems also need to protect listeners' access to accurate, essential information so they can act and participate meaningfully.

Reflection Questions:

  • • When you communicate in your work or community, how often do you explicitly consider what your audience needs to know to make good decisions?
  • • How could you redesign one communication channel you control (like a newsletter, meeting, or product interface) to prioritize information health for your listeners or users?
  • • What concrete step could you take this week to help a specific audience distinguish reliable information from noise or falsehood in your domain?
4

Power imbalances and platform size strongly influence which ideas are heard and believed, so any fair system for discourse must grapple with amplification, not just formal rights to speak.

Reflection Questions:

  • • Where in your organization or community do certain voices get amplified while others are consistently sidelined, and why?
  • • How might you adjust who gets the microphone-literally or figuratively-so that important but quieter perspectives are surfaced?
  • • What is one process (like hiring, meetings, or product feedback) where you could rebalance whose input is amplified over the next quarter?
5

Democratic norms and free speech practices should be treated as an ongoing experiment: when conditions change and outcomes deteriorate, the right response is to adapt the rules and models, not cling to them out of habit.

Reflection Questions:

  • • In what area of your life or work are you treating a past decision or policy as fixed, even though the surrounding conditions have clearly changed?
  • • How could you build small, low-risk experiments into your decision-making so you can adjust course rather than defend outdated approaches?
  • • What is one rule, policy, or norm you could explicitly frame as an experiment for the next six months, with clear criteria for whether to keep, modify, or abandon it?

Episode Summary - Notes by Sage

What Up Holmes?
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