When the "Marketplace of Ideas" is Shut Down

In 1919, in Abrams v. U. S., Supreme Court Justice Oliver Wendell Holmes tried to explain to the American people why the Founding Fathers opted for freedom of speech and press in the First Amendment, rather than censorship.

"When men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by the free trade of 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 1953, another great Supreme Court justice, William O. Douglas, echoed Holmes in United States v. Rumely in 1953:

"These tracts may be the essence of wisdom to some; to others their point of view and philosophy may be anathema. To some ears their words may be harsh and repulsive; to others they may carry the hope of the future. ... Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.

"The aim of the historic struggle for a free press was 'to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government.' ... Censorship or previous restraint is banned. ... The [First Amendment's] command that 'Congress shall make no law *** abridging the freedom of speech, or of the press' has behind it a long history. It expresses the confidence that the safety of society depends on the tolerance of government for hostile as well as friendly criticism, that in a community where men's minds are free, there must be room for the unorthodox as well as the orthodox views."

When I was in law school at Notre Dame, one of my professors, Robert E. Rhodes, Jr., opined that our U.S. democracy functions best when small "bureaucracies" vie with each other to gain the public's attention.


If you are not worried about America's direction, you should be. Monopoly is once again rearing its ugly head. Monopoly, the deadly enemy of free enterprise and of the American consumer, is also the mortal enemy of free thought, speech, press and religion


There are certain things our government is barred from doing by our Bill of Rights. It cannot shut down or censor free speech, consistently with the First Amendment. Nor can it establish its favored religion.


But what if, instead of shutting down all criticism itself, it encourages and allows its cronies in the media to do the shutdown or engage in censorship on its behalf?


For over 200 years the American press has wrapped itself with the First Amendment and gloried in printing discordant ideas. Now suddenly in the age of "woke," all ideas and speech that might undermine its own cherish dogmas must be suppressed. The marketplace of ideas is being shut down. The swamp knows best.


But when Facebook, Twitter, the major TV networks and the newspapers deny discordant opinions space on their respective platforms, what does that do to the free speech rights of the American people? Is there a practical difference to our free speech rights if, instead of the government telling the press it cannot print certain stories or opinion, the press voluntarily engages in "conscious parallelism" to suppress the very stories the government would choose to kill?


That "contest of idea" is less likely to exist when the Nexstar Media Group owns 197 TV stations, and controls numbers of others. Or when in the words of Justice Clarence Thomas, when "Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users .... Facebook and Twitter can greatly narrow a person’s information flow through similar means."


During the newsboy strike of 1899, Joseph Pulitzer is reputed to have said, "If it's not in the papers, it never happened." When "disfavored" Americans wrote that the Covid virus originated in a lab in Wuhan, China, and/or implied that Hunter Biden and those around him were on the payroll of Communist China, Twitter and Facebook deleted those allegations from their platforms. The mainstream media refused to air them on their TV networks, and refused them space in their newspapers. The justification was that they were "false news" or "denials of science." Very similar justifications were used by Hitler, Stalin and Mao used to destroy free press in their countries.


In 1868, when the first Memorial Day celebrations were held on Arsenal Island — two local little "bureaucracies" — provided very different coverage. The Rock Island Union commended the proceedings. The Rock Island Evening Argus bitterly denounced them. When I was a boy in Chicago, my parents subscribed to the Tribune, the Daily News, the Herald American and the Sun Times. They rarely agreed on anything.

First Published in the Moline Dispatch and Rock Island Argus on June 22, 2021

Copyright 2021

John Donald O'Shea 

Leaders are willing to do what they require of their people

In the United States, government officials normally enjoy either "absolute immunity" or "qualified immunity" against being sued personally for money damages.

In 1982, the U.S. Supreme Court held that the president enjoys "absolute immunity," and cannot be sued for money damages in his personal capacity for his official acts as president.

Members of Congress engaged in the legislative process enjoy similar "absolute immunity."

Without this immunity, they could be sued, like any other citizen, for money damages for their negligent acts. If a jury found that they had failed to use "reasonable care," they could be ordered to pay damages out of their own pockets. Every time they exercised their discretion, even in the best of faith, believing they were acting "reasonably," they could be second-guessed by a jury.

Strip away that immunity, and the president and every member of Congress would be paralyzed out of fear of losing their homes, savings and income.

The Supreme Court has granted them absolute immunity, because without it, every one of them would probably be sued every time they exercised executive or legislative discretion. National laws and executive orders, while they may benefit someone, almost always aggrieve someone else.

So while enjoying "absolute immunity" themselves, President Joe Biden, Speaker Nancy Pelosi, D-California, and Rep.Karen Bass, D-California, support legislation which would abolish "qualified immunity" for police officers.Their justification for this insanity, is that America is a "systematically racist country" and systematic racism is rampant in our nation's police departments.

The Supreme Court created the doctrine of "qualified immunity." It protects police officers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Police officers have been granted "qualified immunity" because it is impossible to write a statute governing every aspect of police conduct — such as an officer's right to use of deadly force. It is impossible to specify exactly when the officer can use deadly force, and how much force he can use.

For that reason, the relevant statute in Illinois in pertinent part reads:

"A peace officer ... is justified in using force likely to cause death or great bodily harm only when he reasonably believes, based on the totality of the circumstances, that such force is necessary to prevent death or great bodily harm to himself or such other person ...."

The statute clearly and necessarily vests the officer with great discretion.

He can use deadly force if he has (1) a reasonable belief (2) based on the totality of the circumstance that (3) such force (4) is necessary.

But without "qualified immunity" his exercise of discretion as to each of the listed four elements, is subject to second-guessing, or de novo review by jurors — every time the officer exercises his discretion. To put it bluntly, without "qualified immunity" police officers will be sued every time they exercise their discretion.

But if you are a policeman, why would you intervene in a situation where you might be required to exercise your discretion and use deadly force, if you know that if you act, you may lose home, savings and reputation?

Without "qualified immunity" it is open season for suits against police officers — even those who did everything perfectly. Whether the officer's use of force was "reasonable" or "necessary" is always a jury question, as is the question, "did the officer take account of all relevant circumstances?"

Years ago, when I was in basic training, a drill sergeant told us that a leader does not ask his men to do things he is unwilling to do himself.

In 1951, the "11 Principles of Leadership" were first published in an Army Field Manual. Here are a few germane excerpts:


    Leaders ... are willing to do what they require of their people.

    Leaders share hardships with their people.

    Set the example — people want and need their leaders to be role models.

    Telling your people you care about them has no meaning unless they see you demonstrating it.


If the principles of leadership mean anything, and if Biden, Pelosi, et al., really believe the police should be stripped of "qualified immunity," let them lead the way and give up their "absolute immunity."

Don't ask your men and women to face personal liability, unless you are willing to risk your own personal wealth.

If this country is "systematically racist," as claimed, fix the problem at the top as well as the bottom. If you believe that every cop — black and white — is a racist, do you really believe Biden and Pelosi, et al., aren't?

First Published in the Moline Dispatch and Rock Island Argus on June 8, 2021

Copyright 2021

John Donald O'Shea