Saturday, April 14, 2018

Trump, Cohen, and the Limits of Privilege

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
Executive privilege is what Donald Trump as president may try to invoke if he seeks to squash subpoenas issued by the special prosecutor in the criminal investigation into Russian collusion or other alleged illegal activities.  Executive privilege is grounded in the concept of separation of powers–found especially in Article II, section 2 of the Constitution.  The concept of executive recognizes that some conversations of the executive (which includes the president) are insulated from scrutiny by other branches.  There may be times when the president needs confidentiality to have candid high-level conversations, tossing about ideas or policy options, for example.  Yet this privilege is not absolute, as the Supreme Court said in U.S. v. Nixon, 418 U.S. 683 (1974).
In Nixon at issue was whether president had to comply with subpoenas from a special prosecutor seeking tapes of White House conversations that could possibly be evidence in a criminal matter.  Nixon asserted that executive privilege is absolute, the Court rejected that claim.    It declared: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” (418 U.S. 706)  More specifically, when weighing executive privilege against the needs of the fair administration of justice, the Court declared:

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. 713)

Any generalized assertions that Trump or the White House may make on claims of executive privilege to impede a criminal investigation would be rejected under Nixon.  Whether such action would then rise to the level of obstruction of justice is a different question.  But at the least Trump would lose here.
Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States, 449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.
Generally, attorney/client privilege is absolute–no showing or hardship can overcome it.  The government cannot say that “We know you said incriminating things to your lawyer and we want to know what it was you said.”  The very purpose of the privilege is to protect individuals seeking legal advice from having their conversations exposed.  Yet there are limits to this apparent absoluteness of attorney-client privilege.  First, in In re Grand Jury Subpoena Duces Tecum 112 F. 3d 910 (8th Cir. 1997), then president Clinton sought to invoke both executive and attorney/client privilege to prevent a special prosecutor from securing notes and documents regarding White House conversations with counsel.  These conversations related to the special prosecutor’s investigation of the Clintons’ dealings with Whitewater Development Corporation when he was governor of Arkansas.  Eventually because of Nixon, Clinton dropped  the executive privilege claim, but the Court ruled against him on the attorney/client claim.  It did so by arguing that the use of this privilege  by the White House undermined values such as transparency and the promotion of justice that the government should pursue.  Thus, attorney-client privilege will not protect the president acting in his White House or presidential capacity.
But there is another exception to attorney/client privilege applicable to Trump as a private person and to his attorney Michael Cohen.  It is the crime-fraud exception.   The crime-fraud rule is premised on the notion that lawyers should not be using their legal skills to commit crimes or help their clients break the law.  Such action would be aiding and abetting, for example.  If clients are suspected of using their lawyers to break the law (or attorneys are themselves suspected of the same), attorney-client privileged may be cracked.  How so?
In United States v. Zolin, 491 U.S.  554, 572 (1989) the Supreme Court articulated a test outlining when and how attorney/client privilege may be crack.  That test is best described in United States v Chen, 99 F.3d 1495 (9th Cir. 1996).

First the government must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and then if the judge decides this question in favor of the government, the otherwise privileged material may be submitted for in camera examination.(99 F. 3d at 1503).

Under the Zolin-Chen test, a judge must be persuaded that a preliminary showing has been made to think that examination of attorney/client conversations will indicate a crime has been committed.  In the case of the Michael Cohen, a prosecutor probably made that showing to a judge, resulting in the issuance of a search warrant to secure his records, including those with Trump.  The next step is a separate hearing for a judge to examine the materials to decide if the crime-fraud exception applies.  This is probably the hearing that is going to happen and which the media seemed perplexed about.  If then the judge is convinced that the exception applies, then it may be used against Cohen or Trump.
Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.
Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.

Monday, April 9, 2018

The Tragedy and Farce that is Tim Pawlenty

Hegel remarks somewhere that all great world-historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce.
—Karl Marx, The Eighteenth Brumaire of Louis Bonaparte.

But when the same person reappears twice, neither Hegel nor Marx saw that he would represent both tragedy and farce at the same time.  So it will be with the candidacy of Tim Pawlenty running for a third term as governor of Minnesota. 
Pawlenty’s candidacy is both a tragedy and a farce, but it is also a long shot where the prospects for success are low.  But his candidacy speaks to many failures in state and national politics, especially with Republicans who are torn between  embracing Trump versus repelled by him.
Consider first the tragedy–Pawlenty’s governorship was largely a failure unless one defines a single-minded cut taxes über alles to be the hallmark of success.  His candidacy was launched in 2002 in the waning days of the Ventura administration when the state and national economy were collapsing after 9/11 and the busting of the era.  As it was clear that the state was going into the red Ventura proposed tax increases and budget cuts to balance the budget, yet Pawlenty and roger Moe-as respective leaders of the Senate and House, nixed that idea, choosing to kick the fiscal problems down the road past the election. These fiscal gimmicks defined the Pawlenty administration and they included illegal use of unallotments, stealing from the tobacco settlement, trying to force contractors to pay for construction projects up front, and calling taxes user fees.  One also saw a failure to raise state matching funds to qualify for federal transportation matching funding, and borrowing from schools and other funds.  When Pawlenty left office, he strapped the state with an illusionary balanced budget for the current biennium and a projected $6 billion deficit for Dayton.  So much for fiscal conservatism.
Tragedy–in terms of a  fallen bridge–is a lasting image of his governorship, and was also how Pawlenty got elected twice and which defined his governorship.  In 2002 he was in second place behind Tim Penny in the race for governor when Paul Wellstone’s plane crashed and he died.  That event, plus then the Wellstone memorial service, transformed state politics resulting in Pawlenty winning the governorship with 44.4%.  Four years later, with only days before the election he was behind Mike Hatch, only to see the latter make several statements that cost him the election.  In addition, when one examines the election returns, it was the strong turnout for Michele Bachmann in the Sixth Congressional District that pushed Pawlenty across the finish line with 46.7% of the vote.  Pawlenty never won a majority of the popular vote, and were it not for tragedies or missteps by others–or the help of others–he would not have been governor.  Couple these events with his miserable run for president and one can really ask how good or formidable a candidate he was.
Given the tragedy of his governorship, it is a farce for him to run again.  Watching his video declaring one wonders what is his narrative or rationale for running?  In addition, Pawlenty is a person trapped by history.  He both wants to embrace and reject Trump, he wants to appeal to a party that once supported him but which no long exists.   He needs a GOP base to win but he is alienated from it while at the same time embracing it will alienate him from the s wing voters he needs to win.  Moreover, Pawlenty has historical baggage which will define him among voters who remember him, but he was governor so long ago he lacks the name recognition that many think is his real strength.  Pawlenty will be attacked and defined by both Jeff Johnson and other Republicans as out of step and as a failed governor, damaging him if in fact he does manage to go to a primary and win (which I am not sure he will).  At the same time the eventual DFL gubernatorial candidate will benefit from these attacks, making it hard for Pawlenty to win come November.

Saturday, March 31, 2018

Trump v. the Law: How Four Types of Lawsuits will do the Job Congress Should be Doing

“It’s good to be the king” as Mel Brooks once exclaimed, for kings are above the law.  But US
presidents are not kings because they are subject to the law.  Donald Trump is increasingly confronting this reality, with the fate of his presidency resting in four types of law suits that are gradually  grinding he and his administration to a halt.  The latest is a Maryland judge allowing for a suit against Trump alleging that foreign governments doing business with him violates the Constitution’s Emoluments  Clause.
Presidents are not kings, and they are not like Captain Picard from Star Trek declaring “Make it so” and it will happen.  The US Constitution and America’s laws–both civic and criminal–limit presidential power.  Presidents have no inherent power to do whatever they want–all of their authority must come from the Constitution or delegation from Congress.  Trump has never understood this.  He thinks he is the CEO of the federal government, beyond reproach and accountable to no one. 
Yet the defining trait of his first 15 months in office has been his and his administration’s woeful ineptness, driven in part but collective inability to act in accordance with the law, whether it be regulating conflict of interest, immigration, or criminal matters.  The Republican Congress has proven unwilling and able to check Trump, botching the Russian investigation and failing to use its checks to hold him accountable out of fear that they will alienate their base.  Yet there are four different legal nooses tightening around Trump’s neck, dictating the fate of the 2018 elections and the future of the Trump presidency.
The first and most famous is special prosecutor Bob Mueller’s investigation into Russian involvement in the 2016 election and what, if any collusive activity did Trump and his campaign have.  The investigation includes not just the question of whether there was collusion but also has the Trump administration obstructed justice, hindered prosecution, committed perjury, or engaged in any other activities to impede the Mueller investigation.  Already the special prosecutor  has netted several indictments and guilty pleas, and at any time many expect Jared Kushner, Donald Trump, Jr., Ivanka Trump, and maybe the president himself to be indicted for something.  The Justice Department along with much of the Trump Administration is self-destructing under the weight of this investigation and with future trials and indictments certain, this issue is not going away before the 2018 elections.
Second, one already saw multiple lawsuits in 2017 challenging Trump executive orders when it came to immigration and sanctuary cities.  With this administration ready to roll out a ton of new  administration regulations, look to see a range of environment and public interest groups as well as states challenge them in court.  Trump may eventually win, but look to see more injunctions, stays, and delays to these rules and orders.
Third, already there are three lawsuits surrounding sexual harassment and women claiming they were paid hush money about affairs.  Gloria Allred–perhaps the best sexual harassment lawyer in the nation–is already representing one alleged victim.  Expect more lawsuits this year.  Thanks to Bill Clinton and the Supreme Court decision that allowed Paula Jones to sue him as president, these cases will multiple and proceed against Trump.  One will see subpoenas and depositions that Trump cannot suppress, forcing Trump in some cases to give testimony under oath and penalty of perjury.
Finally there is the Emolument clause.  The Framers put it in the Constitution out of fear that foreign governments would try to give gifts or other valuables to our federal offices in order to influence them.  The suit that a federal judge just allowed to proceed alleges that the business that foreign governments with the Trump business empire constitute emoluments.  Whether an appeals  court will allow the suit to continue and if it does whether a court agrees that there is a constitutional violation are good questions.  If it proceeds, it may force Trump to release his tax records and open up his private business to legal and public scrutiny.
Taken together, these four sets of legal challenges are doing the work that Congress should be doing but cannot or will not.  With the exception of the Mueller criminal investigation, the other three cannot be derailed by presidential pardoning power, claims of executive privilege, or firing someone.  Should they succeed–even if politically to flip one or two houses of Congress–they will  determine the fate of the Trump presidency. A flipped House or Senate means impeachment or other hearings, or a halt to judicial nominations.  It will also enhance gridlock even beyond what it is now, and it may lead the Congressional Republicans abandoning him where to all surprise–they might actually find it in their interest to do their job and go after him.

Thursday, March 22, 2018

The State of the Trump Presidency Today

Note:  On Saturday I travel to Lithuania and Belarus for two weeks to teach.  But before I go some thought on what happened with Trump this week.

Every week seems portentous when it comes to the Trump administration.  This week was no exception.  What can we make of the events this week in terms of what they mean for the 2018 elections and the future of the Trump presidency?

McMaster Out–What does it mean?
Tillerson out, Pompeo in.  McMaster out, Bolton in.  Sanctions on China.  Congratulate Putin.  Is Kelly next?  Is there an ideology guiding Trump’s recent moves with foreign policy?  At its best it signals a shift to right in terms of US foreign policy.  More specifically, it is a stronger push toward economic nationalism and unilateral policy than was the case under Tillerson and McMaster.  It also bodes for a more confrontational policy, where Bolton is critical of the Iran deal and Pompeo pushing a more aggressive stance against Korea.  In replacing his generals (who were cautious in terms of he use of hard power or military force), Trump ironically may be replacing them with civilians who are more militaristic and likely to use force to pursue US foreign policy objectives.  In short, the new Trump foreign policy is economic sanctions and force and less diplomacy.

However, we may be giving Trump too much credit here.  Trump has largely ignored the foreign policy establishment in the US and his recent moves suggest that he is prepared to act on his gut instincts, and not from anything approaching a grant strategy.  The recent moves are more likely gut reactions by Trump that perpetuate the lack of direction in his presidency that will further weaken the ability of the US to articulate its foreign policy objectives.  Don’t expect these to be the last staff replacements.

Cambridge Analytica and what it means
How will this scandal affect Donald Trump and the prospects for his participation in the presidential election-2020? How dangerous is this incident for Trump's political career?  The bigger issue is how will this scandal add to the others in terms of affecting the 2018 midterm elections.  In and of itself much of the public is either not following or understands this issue but it is part of a ongoing story about a lot of dirty things that happened in 2016.  If Democrats take control of one or both houses of Congress the Analytica incident will have helped contribute to that.  Trump’s 2020 prospects hinge more on what happens in 2018.  Moreover, the alleged  Stormy Daniels story (payment of hush money to her) and to other women along with a pending sexual harassment suit or suits will have a broader impact on how many think about Trump.

How should one assess the role of Cambridge Analytica in the victory of Donald Trump in the presidential election-2016?  The 2016 election was one dominated by the social media and fake news.  If all the Cambridge allegations are true (and more details come out), one cannot say that their role was decisive but we can say that it had a significant impact.  One cannot discount other factors such as Clinton’s own candidacy problems and strategy as contributing factors.

Stormy Daniels: Sex, Lies, and the Presidency
In 2017 I argued that 2018 would be the year that law suits would grind the Trump presidency to a halt.  There are the existing and future indictments by the special prosecutor surrounding Russian involvement in the US elections (and Trump complicity and cover up or obstruction of justice) that will include trials this year and legal issues tht will reach beyond the 2018 midterm elections.  Unlike with Nixon when a grand jury was unsure a president could be indicted for a crime and labeled him an unindicted co-conspirator, the law and legal consensus has shifted since then.  Presidents can be indicted for crimes and Trump and his old and new legal team are worried that is a possibility here and that is why Trump is lawyering up now.

Interest groups, states, and cities will challenge many of Trump’s executive orders and administrative regulations.  And of course, sex scandals will add a third set of law suits.   Including Stormy Daniels, there are three women with credible claims of sexual harassment or cover up involving Trump.  Gloria Allred is representing one of these women (Summer Zervos) who just received permission by a judge to proceed with her case.  Look to see her seek to depose Trump in the civil suit (Trump can thank Bill Clinton and the Supreme Court in Clinton v. Jones where the Court said that civil suits can proceed against a sitting president) and also look to see more lawsuits brought by other alleged victims this year.

Talk is cheap.  Let’s see who has video tape of Trump doing what.  If such tapes exist they could have a real impact on Trump.

Conclusion:  When will the Republicans Abandon Him?
Not until such time as they conclude that he is an anchor to the party.  So far his GOP base of 35-40% are with him.  The GOP in Congress is with him...sort of.  They are in denial regarding the potential damage he can do to them in the 2018 elections.  The best thing the GOP has going for them is that the Democrats need a perfect storm to take back one or two houses of Congress.  It is possible but not guaranteed.  If the GOP goes down in 2018 then they will turn on him.  Until if and then, Trump is more popular than the Republicans in Congress and the latter cannot afford to turn on him.

Sunday, March 18, 2018

Why a constitutional convention is a bad idea

Today's blog originally appeared on March 18, 2018 in the Pioneer Press.

Anger with Washington, D.C., gridlock is understandable. Bipartisanship is gone; straight party-line votes are the norm; and special interests and their money dominate the political process. Many see our Constitution and Bill of Rights as out of date. Some hate the Second Amendment right to bear arms, the Electoral College or abortion or see the president as too powerful or Congress as trampling on states. The system needs to be fixed.

Yet a constitutional convention is a dangerous and uncharted mechanism to address these problems. In fact, it might be distorted by the very special-interest money that reformers want to fix, doing serious damage to our government and individual rights.

Minnesotans should reject resolutions currently before the state Legislature calling for a constitutional convention.

Article V of the U.S. Constitution describes two ways it and the Bill of Rights may be amended. One is where amendments are passed by two-thirds of both the U.S. House and Senate and ratified by three-fourths of the states. So far, every amendment to the Constitution has been done this way. But Article V also allows for two-thirds of the states to call for a constitutional convention, with a vote of three-fourths of the states necessary to adopt any amendment at the convention. This process has never been used.

If a constitutional convention were called by the states under Article V, it is not clear how much could be done to prevent the process from being captured by and dominated by special interests. The reason is both because current law is inadequate in its ability to control special interests and because there is no framework of law that addresses what role groups or money would have in a constitutional convention process.

Because no constitutional convention has ever been called under Article V, exactly what rules govern are in question. One theory would be that the existing rules of the Constitution, Bill of Rights and federal law would apply, including the existing legal precedents of cases such as Buckley v. Valeo, 424 U.S. 1 (1976) and Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). This means that corporations and wealthy donors could expend unlimited amounts of money to affect and influence the deliberations that would take place in such a convention, as well as to influence the ratification of any amendments that would be proposed.

Nothing would prevent any groups from expending money to influence the calling of the convention, the deliberations or the process of ratifying any of the amendments proposed. All of these would be protected by the First Amendment as either issue advocacy or a legitimate activity to petition the government.

It is also not clear that the courts would have the authority to review or monitor any of the activities or deliberations that would take place in the conventions. In cases such as Baker v. Carr, 369 U.S. 186 (1962) and Coleman v. Miller, 307 U.S.433 (1939), the Supreme Court declared that the issue of amending the Constitution is a topic textually committed to Congress. It simply may not be possible for the courts to review any claims that special interests had undue influence over anything that happened in the convention deliberations.

At present, there are no rules regarding who can participate, give money, lobby or have a voice in a constitutional convention. There are no rules about conflicts of interest, disclosure of who is giving or expending money. No rules exist that address political action committees, corporate or labor union involvement or how any other groups can or should participate. Not only might legitimate voices of the people be silenced by convention rules, but special interests may be given privilege to speak and affect the deliberations.

Finally, there are no rules limiting what can be debated at a constitutional convention. Given the potential domination by special interests, who knows the result? The Second Amendment gets repealed … or strengthened.  Abortion outlawed, freedom of religion or speech limited or search warrants abolished. All this is possible and could not be controlled by the courts or the people.

While a constitutional convention sounds good in theory, it is a dangerous idea that should be rejected nationally and in Minnesota.

Friday, March 16, 2018

Shake Ups with the Trump Foreign Policy Team Continue to Weaken the US Internationally

What can we make of the recent shake ups with US President Donald Trump’s foreign policy team?  The simple answer is it is a further sign of confusion within the administration that only will
contribute to ineffectiveness in foreign policy and, second, it is a further retreat from soft policy defining American international strategy.  The new result is a continued weakening of the US on an international stage, especially dangerous as Russia and Putin seem embolden.
First, there is no surprise that Secretary of State Rex Tillerson is gone.  He never seemed to have much support from Trump and in the last few months his position and status have dramatically eroded.  In part this reflects Tillerson’s lack of diplomacy skills and also the fact that Trump did not seem to view diplomacy as a major aspect of his administration.  Evidence of that is that many State Department positions are unfilled even to this day and many careerists have departed.     Moreover, Trump seems to prefer a more muscular or militaristic or hardpower aspect to foreign policy as opposed to the use of soft power.  His administration was full of generals (for now). Thus, no surprise Tillerson is gone except to ask why it took so long.
What will it mean now that Tillerson is leaving?  Obama was criticized for his pivot toward Asia and ignoring Europe but in many ways this is what Trump has done so far and will continue to do as president.  He has made China a major trade and economic enemy and North Korea is a major focus of conflict bordering on military action.  There will be little change here with Mike Pompeo from the CIA taking over.  In fact, he may complicate possible talks with North Korea which will require the Chinese to cooperate. 
How the new Secretary of State tries to push China while also trying to do talks with North Korea will be interesting to watch.  If he does not change his rhetoric toward China one can expect that there will be increased tensions with China and perhaps more trade tariffs on China.   Moreover, there is no indication that there will be a renewed focus on Europe and Russia.  Yes the US did issue new sanctions against Russia to punish it for its interference in its 2016 elections, but Trump himself did not act, it was the foreign policy establishment.  While the foreign policy bureaucracy in the US is powerful, Trump seems to be ignoring it, leaving open how effective it can be going forward.
Tillerson’s departure is not the only one.  A week ago Gary Cohen, Trump’s chief economic advisor, left in protest of the steel and aluminum tariffs.  He and Tillerson were free traders, Trump is not.  Signs are the Trump administration is ready to start a trade war by pulling back on international agreements in the interests of pursuing US economic nationalism. Look at how Trump just prevented Broadcom, a Singapore-based chip maker, from purchasing Qualcomm, as an indication how nationalistic trade policy will also dominate US Asia-Pacific foreign policy into the future on the new Secretary of State.  The free-traders, diplomats, and multilateralists have left the administration.  This suggests for Asia and the rest of the world a more confrontational US foreign policy.
Rumored now also that Trump’s national security advisor H.R. McMaster, another former military officer, is on the way out.  John Kelly, his chief of staff and also former military officer, is probably also on his way out.  Others may leave.  An administration once  full of generals suggested a presidency dominated by hard or military power except the generals did not agree with Trump’s whims.  They came from the foreign policy establishment that Trump is rejecting.   He now seems ready to pick those who  have no experience in foreign policy–people just like him.
Where the Trump administration seems headed is toward foreign policy people who know even less than him, having neither military nor diplomatic skills.    These people too will not last long, further contributing to the ineffectiveness of the Trump administration internationally.

Tuesday, March 13, 2018

The Limits of Free Markets, Both Economic and Intellectual

Today's blog originally appeared in Counterpunch on March 13, 2018.

Both in economics and speech, the market is a powerful metaphor.  Free economic markets are
efficient, and produce the greatest good for the greatest number of people by the fair interplay of sellers and buyers.  The marketplace of ideas is supposed to produce truth, and maximize free inquiry of ideas through the competition or rival ideas.  Both marketplaces are supposed to support contrasting forms of individual freedom.  Except the truth is that neither work in practice compared to theory, fixing their externalities and preventing one from corrupting the other  is challenge and task of contemporary western politics.

The market is a metaphor of modern western politics.  Belief in the efficiency of economic free markets dates at least to Adam Smith’s 1776 The Wealth of Nations.  For some economists, free markets maximize individual freedom producing both what is called Pareto efficiency (no one can be made better off without someone being made worse off) and Kaldor-Hicks efficiency (overall greatest net wealth for a society).  Government regulation interferes with economic markets, damaging both individual freedom and both forms of efficiency.  Market fundamentalism in the guise of contemporary Republican or neo-liberal politics, ascribes to this belief.

Yet there are limits to this economic market fundamentalism.  The same Adam Smith who wrote The Wealth of Nations also penned The Theory of Moral Sentiments and argued how economic markets are circumscribed by ethical values and virtues.  The Wealth of Nations in book five recognizes an important role for the government investing in infrastructure.  Later on, other economists have described unregulated markets as producing externalities such as pollution or monopolies.  Others see externalities to include the mal-distributions of wealth and income in the world or racial and gender discrimination.  Economic markets are also  plagued by problems such as free riders or collective goods.  These problems necessitate government action.  Even Milton Friedman recognized the need of the government to enforce the rules of the marketplace against force and fraud so that it would work properly.

The point is markets are not architectonic.  Markets are not inherently self-regulating or natural.  Karl Polany’s 1944 The Great Transformation made this point.  It took enormous state power to construct and maintain market capitalism. The logic of both capitalism and human nature is often against free markets, wanting to produce collusion, monopolies, or engage in rent-seeking behavior or political action to favor oneself.  Pure self-interest left on its own, as Nobel Prize economist Kenneth Arrow pointed out, cannot be aggregated to produce collective goods for a society.

The marketplace of ideas is also powerful.  John Milton writing in his 1644 Areopagitica argued against censorship and suppression of religious views in the belief that the competition among religious sects would reveal the truth.  John Stuart Mill’s 1859 On Liberty similarly believed that the free play of ideas would yield the truth if there was a “chance of fair play to all sides of the truth.”  And in American constitutional law, it was Supreme Court Justice Oliver Wendell Holmes, Jr. who in his 1919 Abrams v. United States dissent first introduced the market metaphor to the First Amendment when he contended that “the best test of truth is the power of thought to get itself accepted in the competition of the market.”  Since that decision, the hall mark of free speech jurisprudence is the belief that the marketplace of ideas will produce truth and inform the public.  Competition among rival ideas will filter truth from falsehood.

Yet if economic markets are flawed, so is the marketplace of ideas and they too may not be architectonic.  Beyond the fact that some are questioning whether truth even exists, what we learn from recent surveys is that faith in  free speech is waning.  Not a day does not go by that some group argues for restrictions on racist, sexist, or offensive speech or how the press should be regulated.  And a recent study by MIT professors points to something that many have suspected for some time–falsity or fake news  spreads more rapidly than truth on-line.  Because of the natural  tendency for people to be attracted to novelty, falsity is retweeted or posted more than truth.  The enduring power of myths such as vaccines cause autism is proof of this.  For a democracy to exist, its members must have the ability to express their views and search for truth.  Yet if the marketplace of ideas is not  working, democracy is in peril.

The problem then is that the marketplace of ideas too is producing externalities that must be addressed, but doing so without compromising the right and ability of individuals to think for themselves and access the information they need to do so.   How to regulate the marketplace of ideas to address externalities without censorship is a dilemma.   But this marketplace is also plagued or affected by the economic marketplace, allowing rich and powerful actors to use the resources they have acquired in there to adversely affect the marketplace of ideas.   The challenge is how both to preserve the marketplace of ideas from destroying itself while at the same time preventing the economic marketplace from destroying itself and corrupting the marketplace of ideas.