So to Speak podcast transcript: ‘Incitement’ with David L. Hudson Jr.

March 8, 2021

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perino: Welcome back to So to Speak. The free speech podcast where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perino. On February 13th, the United States Senate voted to acquit former President Donald Trump of an impeachment charge that he incited an insurrection at a January 6th rally in Washington, D.C. which proceeded an attack on the United States Capitol. At the heart of the trial was a dispute over what constitutes incitement, whether Trump’s remarks amounted to incitement, whether his remarks needed to amount to the legal standard for incitement to be impeachable under the United States Constitution.

Joining me today to discuss the incitement standard, its history, and its application today is David L. Hudson, Jr. David is an assistant professor of law at Belmont University, he is the author/co-author or co-editor of more than 40 books, and he services as a Justice Robert H. Jackson legal fellow for the Foundation for Individual Rights and Education, and a First Amendment fellow for the Freedom Forum Institute. David, welcome back onto the show.

David Hudson: Thanks for having me, Nico.

Nico: So, let’s jump right into it. Incitement to Imminent Lawless Action isn’t protected under the United States Constitution under the First Amendment. Why not?

David: Well, the general presumptive rule is that speech is protected, as you know.

Nico: Of course. Yeah.

David: But the United States Supreme Court has carved out several narrow, unprotected categories of speech, speech that’s essentially considered too harmful and does not meaningfully contribute to social ideas or political speech. It really is the harm far outweighs the benefits from the speech. And so, some of these categories include, for example, defamation you can’t make a false statement of fact about somebody that harms their reputation, truth rats which I think we talked about before –

Nico: Yes, we did.

David: You can’t utter a truth rat which a reasonable person would interpret as bodily harm, Fighting Words which the Supreme Court defined as words with by their very utterance inflict injury or cause an immediate breach of the peace. And Incitement to Imminent Lawless Action is really within that same first amendment family as Truth Rats and Fighting Words. When I teach this to my students, I generally say let’s talk about these three categories in tandem. Right? Because they’re all related. Incitement to Imminent Lawless Action, Fighting Words, and Truth Rats they’re, if you will, cousins in the First Amendment family. And essentially, the thinking is that if speech really does incite imminent lawless action, then the harm that it caused far outweighs any benefits from the speech, and it’s been deemed to be so harmful as to not be protected.

But, the thing to always keep in mind is these categories, like Truth Rats, and Fighting Words, and Incitement to Imminent Lawless Action, have been narrowed over time. So, the general historical pattern has been that the U.S. Supreme Court sets the standard, and then generally, it narrows it. And that’s essentially what’s happened with Brandenburg, although Brandenburg’s a little bit different because the Brandenburg Standard, which is the case which created the Incitement to Imminent Lawless Action Standard, that really was the final product or the culmination of the Clear and Present Danger test that was introduced by Justice Oliver Wendell Holmes way back in 1919.

And then it’s decades and decades later, in 1969, that the Court decides Brandenburg.

Nico: So, for all intents and purposes before 1919, what are we considering incitement under the First Amendment to the United States Constitution. I mean, before 1919, the First Amendment was almost a dead letter in the constitution. Was that discussed, or was it thought of before then?

David: You know, I was just reading John P. Frank, who was a great legal scholar; he actually argued Miranda v. Arizona, that’s the famous 1966 case. He was a great constitutional scholar; he wrote a book about the United States Supreme Court that was published in 1958; the title is called The Marble Palace. In his chapter on free speech and free press, he actually says something to the effect that John Quincy Adams, alone in fighting the gag orders on petitions to end slavery, did more to advocate for freedom of expression than the United States Supreme Court did throughout decades and decades. Right? I mean, it really was the crucible of World War I, historian Paul Murphy encapsulated it well, World War I and the Origin of Civil Liberties.

It really wasn’t until the passage of the Espionage Act of 1917 and the amendment, the Sedition Act of 1918, and some other developments in constitutional law that actually led to the development of modern First Amendment law. You’re absolutely correct; it didn’t really take off until 1919; it was really Justice Holmes’s so-called great dissent in Abrams v. United States that set us on the framework for modern First Amendment jurisprudence.

Nico: Let’s talk a little bit about the Brandenburg Standard, it’s a 1969 case, and it’s a case that’s really at the heart of Donald Trump’s most recent impeachment trial. It involved a Ku Klux Klan group and a Klan leader Clarence Brandenburg, and I’m kind of paraphrasing from Adam Liptak’s summary of the case in discussing the impeachment trial, Brandenburg had urged his followers at a rally to send the Jews back to Israel, to bury African Americans, and to consider revengence against politicians and judges who are unsympathetic to White people. Now, Liptak explains that only Klan member and journalists were present, but because Brandenburg’s words fell short of calling for immediate violence in a setting in which violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.

The Court ruled that Constitutional Guarantees of Free Speech and Free Press do not permit a state to forbid or prescribe advocacy of the use of force or of law violation except for where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. So, there are various prongs to that test, and it seems to be a very strict standard; how often is it actually met?

David: It’s not met very often. It’s really only met when you have a speaker speaking to a group of people, and there’s a result of immediate violence that results from that, and there’s clear evidence that the speaker intended for that to happen. Right? That’s really what incitement’s about. One clarification to what Mr. Liptak said is that the case itself, Brandenburg, was prosecuted under an Ohio state law called a Criminal Syndicalism Law, and that law was a relic of the 19-teens and 1920s used to essentially prosecute Communist sympathizers. But the law itself punished abstract advocacy of subversiveness or crime breaking, and what the United States Supreme Court said is that this law is unconstitutional because there’s a difference between abstract advocacy of law violation and actual incitement to imminent lawless action.

And the weird thing about Brandenburg is that was a case where there was an opinion from the Ohio Supreme Court, and there really wasn’t much of an appellate opinion at all. It presented the U.S. Supreme Court with tabula rasa with an empty slate on which they could craft this new standard. And it gave the court a little more flexibility in coming up with a speech-protected standard, and the Brandenburg Standard has been, I think, very steady and enduring, and it’s lasted for quite some time; it’s been on the books for more than 50 years. I think it’s important, also, to understand, though, that Brandenburg applies to more than just criminal prosecution cases.

So, the Brandenburg standard at times has been used in civil liability type of situations where, for example, an individual who has a family member who commits suicide, let’s say, after listening to music lyrics, like Ozzy Osbourne’s Suicide Solution. Or the case I cited in one of my pieces, Davidson vs. Time Warner, where a Texas state trooper was shot and killed by a man who was listening to Tupac Shakur’s 2pacalypse Now, which was a great album. But the allegation was that the rage that protagonist sings about or that the song talks about caused this man to kill the state trooper, and the Brandenburg Standard is often used in the civil context as well. It doesn’t always come up just in criminal prosecutions.

Nico: What was it coming up in that DeRay McKesson case? DeRay is a civil rights activist who was sued by a police officer who was injured by a rock-like object that was thrown during a 2006 demonstration in Baton Rouge, Louisiana. The officer, in that case, doesn’t actually contend that DeRay McKesson threw the object or directed any violence, but instead contends that because he should be held responsible because he knew, or should have known that the violence that resulted from the demonstration, which he helped organize, could have resulted.

David: Very tenuous at best. Right? The argument by some is the Brandenburg standard is too high. And so, what often happens in First Amendment litigation is that the defense will argue for the application of Brandenburg. Right? Because it’s such a high standard to meet.

Nico: And that’s what Trump’s advocates in the Senate trial were doing.

David: Absolutely. But what will often happen in these cases is that the prosecution, or the plaintiffs, if it’s a civil liability case, they’ll argue for another speech category. So, for example, there’s a very famous case in First Amendment circles, although it never made it to the United States Supreme Court, the Nuremberg Files website case where there was a group that hosted a list of the names and addresses of doctors who performed abortions. And then when somebody went out and assassinated one of these doctors, they actually drew a line through their names, and so the argument was that this website encouraged people to go out and shoot and kill these abortion providers.

Well, ultimately, there was a lawsuit filed by Planned Parenthood against the American Coalition of Life Activists who were responsible for this Nuremberg File’s website. And the Federal District Court applied Brandenburg and held that it was protected speech. Well, what did the Ninth U.S. Circuit Court of Appeals do on appeal? They didn’t analyze it as a Brandenburg case; they analyzed it as a True Threat case. Let me give you one other example.

Nico: Mm-hmm.

David: Paladin Press v. Rice, very famous First Amendment case that never reached the U.S. Supreme Court. This is sometimes referred to as the hitman manual case.

Nico: I was just gonna ask about this.

David: Yeah. Where a guy actually went in and read this book, How to be a Hitman, published by Paladin Press, and he followed 30 steps in the book and actually went and assassinated somebody, it was a murder for hire thing, for insurance money. And the Federal District Court, I believe, applied Brandenburg and held that the book was protected speech. But the Fourth U.S. Circuit Court of Appeals didn’t apply Brandenburg and held that it was speech that aided and abetted a crime. So, what often happens is that a court will say, okay, this really isn’t a Brandenburg case this is a Truth Read case. This isn’t a Brandenburg case; this is a Fighting Words case. Right?

And the reason is, again, what we’ve been talking about Brandenburg is a very speech protective standard, and it’s very difficult to meet Brandenburg.

Nico: So, let’s get into the events of January 6; I’m sure our listeners are very interested. And I actually originally intended this podcast to kind of be a debate between someone who thought his speech did meet the Brandenburg standard, insofar as it was not protected by the First Amendment standards enumerated under Brandenburg, and someone who did think it was protected. But I reached out to four different people to try and come on and argue that his speech was unprotected, three of whom had written very high profiles articles defending it, and they – most of them declined, and one of them didn’t respond to me. So, that’s why we have you here, David, to analyze the situation for us because you did write an article about this trying to get the perspectives of various different thinkers on the topic.

So, it’s January 6th, President Trump is holding his rally, the Stop the Steal Rally, Washington, D.C., he speaks for a period of time, I believe it’s less than an hour, and at the end of it, he says “I know that everyone here will soon be marching over to the Capitol Building to peacefully, and patriotically make their voices heard.” Of course, this comes after months of critiquing the election, saying it was stolen, organizing his supporters to come to Washington, D.C. to “stop the steal,” and then immediately after the rally, the march over to the Capitol happens, and the events of January 6th, which we’re all very familiar with occur. People die; unfortunately, the proceedings in the United States Senate are brought to a halt for many hours.

The Capitol receives a lot of property damage; you have protesters, some of whom are in horns sitting on the speaker’s chair – I forget if it was the House of Representatives or the Senate – a lot of chaos happened that day. My wife actually works in Congress, so she was not in the building that day. How are we supposed to think about Trump’s speech that day? The Brandenburg standard is a very fact-intensive standard, so what facts would we bring to bear in analyzing whether his speech is protected or is related to what happened afterward.

David: I think you have to look at the text of the speech. He didn’t say let’s go down to the Capitol, break down the barriers, storm in there, and act like law-breaking violators. He just didn’t say that. Right? I mean he said, let’s march on the Capitol, but march to the Capitol that’s protected assembly. Right? That’s freedom of assembly. Right. There’s a difference between marching peacefully and then what some of these people did, and it’s very hard for me to find, from looking at the language of the January 6th speech, and even taking into account the month-long rants about stealing the election, election fraud. It’s very hard for me to, granted I’m a First Amendment person –

Nico: Yes.

David: – but it’s very difficult for me to see how this possibly meets the Brandenburg standard. I think a lot of people; honestly, I think what’s come about is a lot of people hate Trump, and so they allow their dislike of Donald Trump to essentially adulterate their application of fundamental First Amendment free speech principles.

Nico: So, when we’re thinking about the stuff that he says to just take this piece by piece in the months preceding, he doesn’t concede that it’ll be a peaceful transfer of power, he uses the language of fighting, which is, of course, often advocacy in protest language that is symbolic. Is that irrelevant when we’re considering the Brandenburg Standard and its requirement for the speech to be likely to produce imminent lawless action? So, I guess the question is, do we just need to look at what he said before the violence? Or can we contextualize it?

David: I think we can contextualize it, but even contextualizing it, I have great difficulty in seeing how this rises to the level of incitement. The language itself just simply does not – he’s not saying go terrorize members of Congress and employees there; he doesn’t say that.

Nico: Mm-hmm.

David: And when you say you fight for things, I mean good grief that should be protected – I mean it was impassioned political rhetoric, and impassioned political rhetoric is the core type of speech that the First Amendment’s designed to protect. I think decades and decades later; we’re gonna look back and think good grief if somebody actually prosecuted him for incitement, which I think the D.C. Attorney General is at least contemplated or threatened; I mean, it’s gonna be like prosecuting Eugene Debs for his speech in Canton, Ohio in 1918. No, I’m not saying the president was responsible; I’m not even saying the president was – you could make all sorts of criticisms about the former president. Right?

But it just is extremely difficult for me to understand how somebody could possibly think it meets the Brandenburg Standard. Go back and look at the Sixth Circuit case when it was alleged one of his campaign speeches in Louisville, Kentucky met the incitement standard; that was a case where he was speaking at a campaign rally, and there were a couple people coming in there to protest him. And this I thought was closer, he goes “Get him out. Get him out.” And so, some people then grabbed these people and forcibly removed them and beat them up. Candidate Trump said, “Don’t hurt them. Don’t hurt them. But don’t hurt them.”

Nico: Mm.

David: And the Sixth Circuit held that’s not incitement. Now that to me was closer because he actually said, “Get them out. Get them out,” and that would probably lead somebody to think they’re gonna be forceable ejected and might suffer bodily harm. Here this is political rhetoric. And I mean, do we wanna live in a country that criminalizes political speech? That criminalizes political rhetoric? I mean, it’s just unfathomable to me, frankly, that this would actually meet the incitement standard; I just don’t see it.

Nico: What about Rudy Giuliani’s previous comments? It’s actually unclear whether he is talking about actual trial by combat or legal trial by cam, but if we’re wrong, we’ll be made fools of, but if we’re right, a lot of them will go to jail, let’s have trial by combat.” You think that is closer to the line? Or does it not actually instruct the audience to do it?

David: Yeah. Trial by combat, I think that means litigation. Right? I mean what he’s –

Nico: Mm-hmm.

David: – talking about is vigorous litigation, he’s filed a bunch of lawsuits, a lot of people think many of them are frivolous, there are some affidavits of fraud, but there’s nothing approaching wide-spread evidence of fraud, at least that I’ve seen in the affidavits that proves it. So, now they’re talking about holding some of the attorneys accountable who filed some of these lawsuits. I don’t know, but no, I don’t think that rises to the level of incitement; now it may be irresponsible. Right? There’s a difference between being irresponsible. Could things have been handled much better? Yes.

But I think, honestly, to prosecute Trump for his speech, for the words, I think you have to bastardize the First Amendment in order to do so.

Nico: There was, and I know you’re familiar with this, I’m sure, the letter from 144 constitutional scholars or experts that derided Trump’s First Amendment defense at the trial as legally frivolous; those are their words. And they argued that all elements under the Brandenburg test were satisfied. They had three arguments in their letter; the first was that the First Amendment is meant to protect citizens from the government, limiting their free speech and other rights it has no real place in an impeachment trial. They say even if the First Amendment did not apply to an impeachment trial, it would do nothing to bar conviction which has to do with whether Trump violated his oath, not whether he should be allowed to say what he said.

And then there’s the third, which gets to Brandenburg, and they contend that there was an extraordinarily strong argument that the defense would even fail in a criminal trial because they think the speech did meet the high bar for punishing someone for inciting others to engage in unlawful conduct amongst those. And they do say they kind of couch it in the letter by saying “many of us believe,” so it’s unclear who in the letter might agree with one or two of the arguments instead of the third argument. But there are big-time First Amendment scholars on there like Lloyd Abrams, like Rodney Smolla. Smolla’s been on this podcast before; he and I disagreed, our listeners will remember on the events in Charlottesville.

He wrote a book on the events in Charlottesville, which I thought was really good at laying out the facts. But there does seem to be a constituency who thinks it’s a lot closer than you do.

David: Yeah, and I think a lot of that – I think a lot of that is they don’t like Donald Trump, they view Donald Trump as an unqualified television celebrity who had no business being the president of the United States. That’s a different question. Right. A lot of people felt that Trump was not qualified to be president, but he was a president, he was the 45th president of the United States, and the incitement question – now you raised a lot there’s a lot to unpack there.

Nico: Of course. It’s a compound question which is never good when you’re the interviewer.

David: What standard is actually used in impeachment proceedings. That’s an interesting question; we don’t really have that many impeachments. If you just look through the history of the United States, but to punish – and to say that presidents don’t have free speech rights, I think is silly, that’s almost arguing for the application of Garcetti v. Ceballos, a public employee free speech case. I read somewhere where somebody said Garcetti applies; I think that’s absurd. This is not a typical employer-employee relationship.

Nico: Oh, no, he was speaking as a candidate in that case.

David: Yeah. He was speaking; he was engaging in political speech. At the end of the day, this was political speech; it’s political speech that a lot of us didn’t like. It’s political speech that a lot of us felt was unwise; it’s political speech that many of us felt was imprudent. It’s political speech that many of us found offensive, and at times bordering on repugnant, or maybe even purely repugnant. But guess what? The First Amendment protects a lot of offensive and repugnant speech, and it certainly protects speech that is critical of government. And I generally believe that when tempers subside, and we look back on this years from now, people are gonna say that’s an abuse of the First Amendment to say he should be prosecuted for incitement.

I don’t see it. It’s that third one that bothers me the most. I just don’t see where it rises to the level. Now, if we wanna change the standard in Brandenburg, Judge Posner his book Not a Suicide Pact says that the Brandenburg Standard ought to be modified, particularly with regard to online speech that encourages others to engage in acts of terrorism.

Nico: Well, he says a lot about the First Amendment should be modified.

David: Yeah. That’s a different question. Right? And so, I do think that a lot of the motivation behind a letter like that is politically motivated; there’s such vitriolic hatred of Donald Trump that I think adulterates the pure First Amendment analysis. And it goes back to what Nat Hentoff famously wrote: “free speech for me not for thee.” We live in a society as you know, you’ve been an incredible advocate for this, and you’ve –

Nico: Well, thank you.

David: – detailed it beautifully on numerous shows. People on the right sensor, people on the left sensor, and they engage in right-wing fascism or left-wing fascism. They think that Donald Trump is the epitome of evil and he needs to be extricated from the government, and they fear that he could rise again and run again in 2024, so they want to impeach him. And I think, unfortunately, that corrupts the First Amendment analysis.

Nico: I should say this about Nat Hentoff; on Saturday, I’m actually giving the remarks that proceed the Nat Hentoff Free Speech Award, which is given by the Cato Institute to a student, and so I’m reviewing Nat’s life. I wrote his obituary here for Fire when he passed in early January of 2017 and a tremendous advocate for free speech. And for our listeners who want to learn more about him, I recommend the documentary made about his life called The Pleasures of Being Out of Step, which was directed by David Lewis, who I now believe is at the local NPR affiliate in New York City. But a fantastic documentary about a free speech life, a life as the Associated Press wrote, I think the headline for the Associated Press when he died was Free Thinker Nat Hentoff Dies at 91, now if that could be the headline for my death, I would be only too thrilled.

That documentary was also the inspiration for my documentary about Ira Glasser, but the Nat Hentoff one famously critiqued defamation law, and so, in that spirit, I wanna ask you, defamation law at large I don’t think he thought it should be a carve-out to the First Amendment. In that spirit, I wanna ask you whether or not the incitement standard is even a standard that we should have in the first place? I’m very weary, personally, it’s not to say that I think it should be done away with, but I’m very weary personally of standards that kind of rely on an audience’s reaction to speech. So, the Fighting Words Standard and the Incitement Standard are difficult standards for me, in particular the Fighting Words Standard.

The Incitement Standard, I think, is a little bit closer to maybe the True Threat Standard, but even still, it requires, to a certain extent, an analysis of the audience’s reaction. We like to say the reasonable person, but that ultimately ends up being a subjective analysis.

David: Awesome question. You’ve identified what’s called; it’s referred to under a different terminology, the Hostile Audience Problem or the Heckler’s Veto Problem. And essentially, what you’ve correctly identified, and the Tinker Substantial Disruption Test, frankly, is also that way, the student’s speech case. Right? We determine whether student’s speech is protected, whether we can reasonably forecast it will cause a substantial disruption of school activities. We look at what other people do.

Nico: Terrible test. Trucks driven right through it since it’s been put in place.

David: Yes. So, I think – here’s where incitement made the appropriate – there are Inciting to Riot statutes, so, there’s a case in New York that I use for my class, I think it’s People v. Tollia, where you had a music concenter in a New York City park, Central Park, and apparently, the volume of the music was extremely loud, so a bunch of neighbors called the police and complained. So, the police go to the concert, and there’s a speaker on stage, and they tell him to turn down the volume. And the speaker yells out to the crowd resist the police, F the police, fight the police right there when the police are right there. And then people immediately start throwing bottles at the police.

Now, that was a case where the person was convicted under Inciting a Riot Standard, and the conviction was affirmed by an appellate court because the speaker called for immediate, imminent lawless action, and it was likely to result, and it resulted in actual physical harm to the officers there. We can create factual scenarios where the standard might fit, but what I totally agree with you on is when you base a speech standard on the reaction of listeners, particularly when the speakers are peaceful it’s fertile to abuse. There’s no better example than the Irving Finer case. Irving Finer was a young man; I think he was a war veteran, was speaking, was a student at Syracuse University, and he gets on a soapbox on a street corner, and he starts urging African Americans to fight for their rights, battle segregation, and discrimination.

And an angry crowd comes up, and they start expressing discontent toward Finer and yelling at him. The police come; they don’t protect the speaker, Mr. Finer; they instead arrest him. And the United States Supreme Court in Finer v. New York affirmed that conviction by five to four vote. He gets expelled from Syracuse; he’d been accepted to five law schools, and all his law school applications were rescinded. That’s the epitome of the hostile audience problem; they tried to use the Hostile Audience problem in one of my favorite all-time U.S. Supreme Court cases, Edwards v. South Carolina, where 187 African American students were prosecuted for Breach of the Peace when they marched peaceably from Mount Zion Church to the State House in Columbia, South Carolina with signs that said “Down with Segregation” and chanting religious hymns.

And they arrest them for breaching the peace because there are 200 or 300 onlookers that were not too pleased with what they were doing. And the United States Supreme Court, in that case, at least did the right thing; they distinguished the Finer case and said this is pristine First Amendment freedoms in action. This is pure, peaceful Freedom of Assembly and Freedom of Petition. And you’re absolutely right that when we base speech protection on the hostile audience, it’s susceptible to misuse and abuse, and that’s absolutely correct. Now, I’m not gonna go so far as to say that Brandenburg ought to be abolished because I do think that there are situations, narrow albeit, but there can be situations where a speech directly leads to a riot, where the speaker is intending that there be a riot.

I just don’t think that the January 6th speech intended for people to do what they did, but some of those people did. I think that he wanted people to march to the Capitol and to protest loudly; I don’t see any evidence that he actually intended them to do what they did.

Nico: Some of those Hostile Audience cases that you were just describing remind me of those early cases involving Jehovah’s Witnesses who were often prosecuted as a result of the response the audience had to their speech.

David: Walter Chaplinsky, Chaplinsky v. New Hampshire, 1942. That’s the seminal Fighting Words case. Walter Chaplinsky was really getting harassed by other people because he was criticizing their religion. But the Chaplinsky case itself, which as you know, really set in part when Justice Frank Murphy wrote something to the effect that there’ve always been narrow unprotected categories of speech, one of these is Fighting Words, that set up the categorization model of the First Amendment that there are these certain, narrow unprotected categories. But Walter Chaplinsky himself alleged that it was Marshall Bowering, the guy that arrested him, who was the aggressor, and it was the other people that he was talking to who were physically messing with him, not vice versa.

Nico: Yeah. That’s always the retort of would-be sensors is that they like to say, well, of course, there are categories of unprotected speech, and then they put whatever speech they have issue with and figure out a way to fit it into one of those categories. Of course, the Shouting Fire in a crowded theater if probably the most common of that, also, of course, forgetting the falsely part of that. So, David, I think we’re gonna leave it there. Like I said, I’m bringing you on to talk about a very narrow carve-out.

David: I thank you very much, and I applaud you for participating in the Nat Hentoff – Free Speech for Me but Not For Thee, and his book The First Freedom, are two of my absolute favorite First Amendment books; I think they should be required reading for anyone who wants to learn more about the First Amendment. And even Hentoff was a great fan of jazz, and my personal favorite sport, boxing, the sweet soft, remarkable guy.

Nico: I’m not a lawyer, so my free speech heroes tend to be non-lawyers like Nat Hentoff, like Ira Glasser, like Aryeh Neier, like Jonathan Rousch, who, of course, wrote Kindly Inquisitors. I mean, my two favorite free speech books ever written are Kindly Inquisitors, and then Aryeh Neier’s Defending My Enemy. Which I think is back in print, I had him on the podcast in 2016 or so to discuss it, but I encourage people to check that out. I also encourage people to check out that documentary about Nat Hentoff, which, unfortunately, and I emailed the director, David Lewis, about that, it’s no longer streaming, so you have to buy the DVD which, of course, a pain, but it’s called The Pleasures of Being Out of Step, and if you like that you can check out my documentary about Ira Glasser called Mighty Ira which revisits the Skokie case and some of his other First Amendment work.

He wasn’t the leader of the ACLU during the Skokie case, but he was at the ACLU at the time and then took it over in the immediate aftermath. So, David, I think we’re gonna leave it there. As always, it’s good to have you on the show, and next time we’re gonna talk about – we’ll work on all the carve-outs to the First Amendment with you.

David: I’d love to. I’d love to talk about Fighting Words; actually, I just wrote a law review article that was published on The Fighting Words Doctrine Being Alive and Well in the Lower Courts.

Nico: Really? Is it?

David: I think the Fighting Words Doctrine is dead, but it’s being used quite a bit by lower courts to sustain disorderly conduct convictions.

Nico: Yeah. We’ll have to get you on to talk about that for sure. Because I’m not aware of that, I know it’s kind of a dead letter, or at least it has been for 60, 70 years as it relates to the Supreme Court but its interesting and kind of shocking to hear it’s not a dead letter in the lower courts, we’ll get you to talk about that. But in the meantime, David, thanks again.

David: Thanks so much.

Nico: That was assistant professor of law at Belmont University, and Fire legal fellow David L. Hudson, Jr. This podcast is hosted, produced, and recorded by me Nico Perino, and edited by Aaron Reese. You can learn more about So to Speak by following us on Twitter at twitter.com/freespeechtalk or liking us on Facebook at facebook.com/sotospeakpodcast. Email feedback comes to sotospeak@thefire.org, and if you enjoyed this episode, we take reviews at Apple Podcast and Google Podcast they help us attract new listeners to the show. And as I say always, I thank you all for listening.