The Marketplace of Ideas Under Threat

Guest blogger Richard Epstein of the New York University School of Law argues that the principle of free speech is in danger of being forgotten. Transparify does not edit the content of guest blogs; the views expressed in this blog are those of the author alone, and may not reflect the views of Transparify.

Ninety five years ago, Justice Oliver Wendell Holmes uttered in Abrams v. United States the one sentence that encapsulates best the ideals of the First Amendment protection of freedom of speech:

“when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that 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.” 

In that case, Holmes protested the conviction under the Espionage Act of socialists  who protested the United States’ involvement in the war against Germany.  The dissent that became law took the view that there was no direct incitement to the use of force or fraud, so that the speech was protected no matter how much discomfort it gave to those who disagreed with it.

That principle, which gained much support in the aftermath of the First World War, is now in danger of being forgotten.  I am struck today by how many people are so sure that they know the right answer that they think that their solemn duty is to expose the bad motive and corrupt arguments of their contemptible opponents.

One instance is of course the opposition to global warming, which has if anything gained some momentum because the original gloomy predictions on the subject have not been supported by the most recent evidence which shows little or no global warming over the last fifteen years even though there have been substantial increases in the levels of carbon dioxide in the atmosphere. 

No one should say that this single data point necessarily means that the debate is over. But it should caution us to be aware of the apocalyptic visions of doom that lead to the denunciation of any individual or organization that takes the contrary position.

I read with dismay the guest blog recently offered by Robert Brulle on Transparify’s website that denounces those nameless conservative foundations for their hidden support of think tanks that speak the forbidden language.  But what is striking about his and similar arguments is that they take it for granted that his opponents “deny scientific findings about global warming and raise public doubts about the roots and remedies of this massive global threat.” 

Yet at no point is there the most meager effort to look at the evidence on both sides of the issue so that readers can make up their minds.  Instead we are told that it is now imperative to engage in “rating think tanks on their transparency.”  But it is never explained who is entitled to the high ground on this issue, or how the rating process will be viewpoint neutral if the raters themselves have strong substantive views, as Professor Brulle surely does. 

The only cure, I think, is competition in the rating market. Holmes would have approved.

Richard Epstein is a professor of law at the New York University School of Law. He is also a senior fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus and a policy advisor for the Heartland Institute. He is a prolific blogger and the author of several  books.

Pulling Back the Curtain

Guest blogger Robert Brulle reports on his attempts to uncover the sponsors of think tanks engaged with the issue of climate change. Transparify does not edit the content of guest blogs; the views expressed in this blog are those of the author alone, and may not reflect the views of Transparify.

Over the past forty years, there has been an enormous expansion of ideologically focused think tanks. These think tanks have become increasingly important in the development and advocacy of public policies on a range of issues. They have also increasingly been funded by undisclosed sources. So it is difficult to judge the validity of their assessments without full disclosure of their funders.

For example, my work has focused on think tanks engaged with the issue of climate change. What we see in this area is a group of think thanks that foster confusion about the science of climate change, and oppose action to address this issue. These think tanks have been bankrolled by funders known for their overall commitments to extreme free-market ideologies. Where funding can be traced, it has come from foundations driven by an encompassing ideological vision that posits government “interference” in markets as inherently illegitimate. Regulations and taxes are demonized, yet both are ingredients of proposals to reduce greenhouse gas emissions.

Despite thorough efforts, I could not find all of the sources of funding for organizations that mount climate-change denial efforts because the law allows secrecy. Many of the actors and organizations that have done so much to block U.S. actions to counter the global warming threat are able to operate in the shadows. Americans hear denial arguments funded on a grand scale by unknown wealthy manipulators.

This is a big problem for democracy. The U.S. constitution guarantees free speech, and the current Supreme Court enforces that right for corporations as well as individuals. In addition, current U.S. rules applying to “nonprofit” organizations make it easy for political activities to be supported on a huge scale in hidden ways. Nonprofit organizations not required to reveal their donors can simply collect funds and pass them to campaigns and think tanks. This hidden-funding system needs to change through the revision of nonprofit reporting laws. Without a free flow of accurate information, democratic politics and government accountability become impossible.

Powerful funders are supporting the campaign to deny scientific findings about global warming and raise public doubts about the roots and remedies of this massive global threat. So in this area, as well as many others, we have unaccountable funding flows to these think tanks from unknown sponsors trying to influence public policy in an enormous way, and that really runs counter to the whole notion of democracy and open debate.

Rating think tanks on their transparency is a first step in the right direction. This web site will allow citizens to see which think tanks are fully transparent about their funding sources, and those that hide behind a veil of secrecy. At the end of the Wizard of Oz, Dorthy’s dog Toto pulls back the curtain on the Wizard, who is manipulating the image of Oz. This exposes the true nature of power. I hope this web site will do the same.

Robert Brulle is Professor of Sociology and Environmental Science at Drexel University