Lukianoff: I would say the biggest debate over Jan. 6 was whether or not it constituted Brandenburg incitement. That may sound kind of unsexy, but it matters because Brandenburg was kind of the resolution of cases that came out of World War I that originally fell upon the idea that speech can be stopped only if it’s a clear and present danger. Brandenburg got you to a stage where it has to be imminent lawless action that is also likely to happen, that you help happen — essentially standing in front of the mayor’s office saying, “Let’s go burn down the mayor’s office,” when a lot of people have torches in their hands, that would be incitement.
When it comes to what happened on Jan. 6 in First Amendment circles, there’s a lot of disagreement about whether that’s actually counted as incitement. I definitely understand people like my friend David French, who make the argument that if this doesn’t count as incitement, then maybe our definition of incitement is wrong. I have some sympathy for that point of view, even though I am with the majority of First Amendment people who still think the Brandenburg standard is overall the right standard.
[Mr. French said that he still agrees the Brandenburg standard is the right one, but believes that Mr. Trump’s actions meet that standard.]
Coaston: And then this past year, we talked a bit about this already, but you had a book about free speech come out 10 days after Oct. 7. How did the aftermath of Oct. 7 change how people view the First Amendment? Did it change your views?
Lukianoff: I think it was a reminder to get back to basics and explain more. Because most people, when they hear certain lines, they’re like, “So you’re telling me that sincerely trying to kill an entire group of people is protected?” Usually when people say that, they add “sincerely and seriously” then you have to take a step back and explain, “Listen, the two things at issue here more than anything else are ‘From the river to the sea, Palestine should be free,’ and ‘intifada.’” Once you get people back there, you can be like, “And don’t you think those phrases by themselves are protected?” And generally you can get people, if they’re being reasonable to any degree, to go: “Well, yeah. Well, those are protected.” Now, if you’re saying that in certain contexts, again, it can be intimidation, it can be threats, it can potentially be discriminatory harassment, but there’s got to be more than just the phrases themselves.
