Defining Luigism Down

Incitement, civility, and the new pro-murder movement

In a widely read, often-misunderstood, 1993 essay, Senator Daniel Patrick Moynihan coined the phrase “defining deviancy down.” In contemporary usage, it is often taken to mean making excuses for bad behavior. But Moynihan’s actual meaning was more interesting and more subtle. Drawing on the works of Durkheim and sociologist Kai Erikson, he argued that the level of deviancy in a society was a function of society’s capacity to punish deviancy—of the “supply of stocks and whipping posts” in his words. Conversely, when the level of deviancy exceeds the slack capacity available to address it, society will automatically respond by redefining surplus deviant behavior as non-deviant—that is, by defining deviancy down.

Moynihan argued, I think correctly, that something like this had happened in America over the course of the 1960s, ‘70s, and ‘80s. A surge of crime, vagrancy, and family breakdown had exceeded society’s capacity to manage it, so instead we simply insisted that the problems weren’t real. He highlights, for example, declining concern with the prevalence of murder, unwillingness to recognize the behavior of the publicly seriously mentally ill as harmful, and the attempt to normalize non-traditional family structure. You may, of course, consider the normalization of these behaviors to be a good thing, but you should be willing to see the accuracy of the description nonetheless.

The idea of “defining deviancy down” gives us a useful way to frame any decay in norms. When we begin to accept previously deviant behavior, Moynihan suggests, it usually reflects some reduction in our capacity to manage that deviance. The normalization of deviance, in other words, is a policy choice. When it becomes more normal, we should look to see what institutional or structural capacity has eroded.

A few weeks ago, my MI colleague Jesse Arm had a thoughtful piece at City Journal on the rise of what he termed “Luigism.” The piece was linked to the murder of Wesley LePatner, the Blackstone executive gunned down in the 345 Park avenue shooting. LePatner was probably not targeted for her professional affiliation, but that didn’t stop a horde of unhinged individuals from celebrating her death on social media, and calling for more of the same.

Many drew a connection between LePatner’s death and the murder of UnitedHealthcare CEO Brian Thompson. Thompson’s killer, Luigi Mangione, shot Thompson in cold blood in the middle of a busy Manhattan street because of the poorly specified evils of American health insurance. For this, he’s become a folk hero, with anonymous posters extolling his actions and often endorsing similar gestures.

Arm, and others, have identified this as an ideology—thus the “ism” in “Luigism.” But it’s not obvious that the ideology—a sort of antisocial anti-capitalism—is the most salient characteristic of these utterances. Merely disliking the rich should be distinguished from vocal support for their murder.

Perhaps it is better to understand Luigism as a kind of deviancy. Shorn of the justifications its proponents offer, Luigism is simply the affirmation of violence as a legitimate political means, and therefore a deviation from the implicit premise of democracy: that our problems are resolved at the ballot box, not with the bullet. We can ask how people justify this deviancy, but doing so fails to acknowledge the nature of the thing. I can tell you about the long history of leftist support for terrorism, but it would be a causal fallacy to do so.

Why not take the Moynihan view of things, then, and ask what the machinery that once managed the deviancy was, and when and how it was stopped? Why has the supply of bloodthirsty invective exceeded our supply of stocks and whipping posts, such that people are now comfortable wearing t-shirts emblazoned with the face of a murderer?

One obvious, unsatisfying answer is the internet. We generate more speech (written and spoken) today, for a larger audience, than at any point in human history. One of the unfortunate side effects of this is that people who hold fringe views will be able to much more efficiently search for and interact with other people who hold those views. This is how you get adult baby/diaper lover communities,¹ and also how you get people who build cults around Luigi Mangione.

This answer isn’t just unsatisfying because it suggests the source of the problem is the source of every other social phenomenon. It’s unsatisfying because the internet has, over the past two decades, become easier, not harder, to regulate. As the average person has become more likely to be online, most social interactions have shifted from poorly managed fora to large social media sites, which are relentlessly moderated. That moderation is only made easier by the advent of large language models which, if nothing else, are extremely good at identifying the potentially problematic meanings of text or images.

So why don’t we moderate out this kind of content? The answer, I suspect your lizard brain is telling you, is “free speech.” Part of the ethos that Americans have brought to the internet is the idea that speech is good, more speech is better, and we should err on the side of permitting speech. So even when we have the tools to limit it, we should prefer free and open debate.

Yet this notion sits uncomfortably alongside the celebration and endorsement of criminal acts, especially criminal acts that are mala in se. Murder is illegal because it is wrong, and very few people will say that they think this should not be the case. Yet we tolerate people expressing their support for murder in often explicit and profane ways. Why? How is it that we came to think that “free speech” involves the protection of endorsement of murder?

The answer to this question actually has a somewhat important, and strange, history.

TCF readers will recall that I wrote a few weeks ago about the hidden history of America’s hate speech laws. Most speech in the United States is protected by the First Amendment, meaning that regulations of it can only survive legal review if they meet the onerously high “strict scrutiny” standard. However, certain classes of speech—“low-value speech”—do not receive this protection. These include obscenity, “fighting words,” and defamation (which covers libel and slander). It turns out that the Supreme Court has blessed the idea libeling a group is “low-value speech,” and bans on group libel are basically hate speech laws if you squint long enough.

Another category of “low-value speech” is incitement—speech that provokes unlawful behavior or encourages people to act unlawfully. In the early 20th century, the Court was forced to answer a series of questions about when incitement—advocacy for anarchism, rebellion, and endorsement of other criminal acts—could be met with government suppression. Usually, the Court affirmed that this sort of speech was not protected. They usually applied what is called the “bad tendency” test, which held that “when the facts of a case indicate that the communicator intended a result that the state has prohibited, the court may reasonably assume that the communication has a tendency to produce that result. Furthermore, on the basis of that tendency, the court may punish the communicator for violation of the law.”

This test, founded in the common law the United States inherited from England, gave wide latitude to the suppression of dissident speech in cases like Abrams, Gitlow, and Whitney. These cases usually pertained to communist or anarchist speech, but they touched on the broader category of incitement.

Incitement is still “low-value speech” today. But since the “bad tendency” era, the Court has so substantially narrowed the definition of incitement as to render it impotent. In 1919’s Schenck, Oliver Wendell Holmes (writing for the majority) propounded the “clear and present danger” test, which established that inciting speech could only be criminalized based on its “proximity and degree.” The “clear and present danger” test never quite displaced the “bad tendency” test,² but it opened the door to the idea that not all calls for criminal acts were unprotected.

Fast forward to 1969’s Brandenburg v. Ohio. The case, which concerned the conviction of a Ku Klux Klan leader under Ohio’s criminal syndicalism statute, became an opportunity for the progressive Warren Court to realize the free speech maximalist dreams of Holmes et al. In a per curiam opinion, the Court wiped clean the slate of incitement law, replacing all prior standards with the single, still regnant, “imminent lawless action” standard. Under Brandenburg, inciting speech could only be criminalized if it was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

The Warren Court’s motivations were in part a product of the moment. As Florida State’s Alexander Tsesis notes, the Brandenburg test “reflected societal consensus about the censorial overreach of congressional hearings and prosecutions against dissenters that occurred during the Red Scare period.” It is hard, moreover, not to see a connection between Brandenburg and the Warren Court’s apparent sympathy for the then-growing anti-Vietnam protest movement, which might otherwise have been quashed by the same laws that were deployed by the Wilson administration during WWI and upheld by the Court at that time.

After all, this was the same Court that enshrined the right to wear the words “fuck the draft” on a leather jacket in public, because, as the majority put it, “one man's vulgarity is another's lyric.” One might see an analogy to the case of Brandenburg and consider that one man’s promise to take “revengeance” against “black peoples” and “Jews”—that being what Clarence Brandenburg was arrested for—is another man’s legitimate political discourse, apparently worthy of First Amendment protection.

Why, then, do we think it is vital to allow people to celebrate murders on social media? At least some of that speech could be regarded as having a “bad tendency”—they tend to incite more murders. Yet the narrowing of the domain of incitement has moved the vast majority of such speech under the First Amendment’s protection. More to the original point, since 1969 we have taken away the power of our institutions to regulate such speech. Moynihan’s theory tells us that the next step is for us to stop defining that speech as deviant. And just as Moynihan’s theory predicts, we have done so.

The thing that alarms the average person about “Luigism,” more than its often amorphous ideological predicates, is that it is (at least sometimes) incitement. The underlying arguments are perverse. But the underlying arguments can be advanced by people who do not end up endorsing murder. What differentiates those celebrating the murder of Wesley LePatner is that they are celebrating murder—the sort of deviant behavior that we have rendered ourselves powerless to stop.

Free speech maximalists might argue that Luigism is the price we pay for being allowed to express other dissenting views freely.³ To put it in drier terms, minimizing false positives will necessarily net you a lot of false negatives. In the domain of speech, we tend to assume that false positives are a lot worse than false negatives, insofar as speech is a right, and the deprivation of rights is a greater harm than the harms done in their exercise.

Part of the point of “low-value speech” as a category, though, is that certain kinds of speech do not serve the ends free speech is meant to serve, which is to say open political debate in a free republic. Incitement is not and has never been protected speech, and for most of our nation’s history we lived just fine with a definition of incitement that would include some of what Mangione’s supporters say. I understand that some take the view that celebrating a woman’s murder is part of open political debate. I do not agree.

A different way to frame the maximalist argument is that the extremity of speech is in the eye of the beholder. Prohibiting endorsement of murder as incitement is, in this view, a slippery slope to the regulation of all sorts of political speech. The view of the modern right-wing free speech advocate—embodied, for example, in J.D. Vance’s criticisms of the European approach to speech—is that, insofar as liberal institutions dominate our society, they will tend to proscribe acceptable right-wing views.

As someone who holds such views, I find this prudential case for free speech appealing. At the same time, as someone who holds the (right-wing?) views that words have meanings and truth can be discerned through the application of human reason, I chafe at the kind of relativism that this argument presumes. The problem with the idea that every right-wing utterance is “harmful” or “violence” is not that words can’t be harmful—they can. It’s that most of those utterances do not rise to that level. And, more to the point, it is hard for me to accept relativism when it comes to judging whether or not it is wrong to endorse the brutal murder of innocents.

Moreover, the celebration of LePatner’s death is far from the only case where speech that endorses crime is a pressing matter of public debate. The rise of the internet has, for example, created the problem of “terroristic incitement”—people using the web to encourage other people to commit terroristic acts. This behavior probably can’t be criminalized, even as it creates a grave public security threat. Similarly, there is a live debate about whether and under what circumstances non-citizens have which free speech rights—a debate which, most honest brokers admit, is not settled.

Regardless, I think the Court is unlikely to revisit Brandenburg any time soon. Perhaps the greatest critic of the maximalist position on the Court, Justice Alito, appears to have capitulated to the view in at least some cases. And the center of the Court’s general predilection for stare decisis gives little reason to expect any radical change.

Still, there are at least two arguments that Brandenburg need not be the final say on the matter. One is the straightforward Originalist argument. At the Founding, many probably took “freedom of speech” to mean what Blackstone thought it meant, i.e. a prohibition on “prior restraint” or censorship. Justice Joseph Story, the 19th century Supreme Court Judge whose Constitutional interpretation is often taken as definitive, endorsed this view, with the recognition that government could punish speech that “injure[s] any other person in his rights, person, property, or reputation” or “disturb[s] the public peace, or attempt[s] to subvert the government. The “no prior restraint” interpretation was the view the Court advanced in many of its early cases, and indeed as late as 1907.

The notion of “low-value speech” was an adaptation to the death of this earlier view, itself the result of innovation in the Court in the middle of the 20th century. Even if one takes a more expansive view of the First Amendment, it is really quite hard—as Tsesis argues—to support Brandenburg specifically based on original public meaning Originalism.

The second argument is that, much as in the case of obscenity, the playing field has changed. The internet really has loosed a great deal more deviant speech than the Court could possibly have contemplated in 1969; after all, who wanted to listen to Clarence Brandenburg, anyway?

Yet if I could have told Earl Warren that his ruling would help advance a world in which thousands of people would publicly celebrate the murder of an innocent woman, would he have decided the same way? I’m not so sure. And a revised standard need not look like the “bad tendency” test in order to have more teeth—to acknowledge, at least in principle, that support for the bloody murder of innocents is not speech worth strict-scrutiny protection.

If you do not find this normative case compelling, that’s fine. We should still agree on the descriptive. This sort of deviance has become more common because we have both increased its supply and, simultaneously opted to reduce our power to reign it in.

1. don’t google it.

2. E.g. they go back to using “bad tendency” in 1927’s Whitney v. California.

3. Another argument is that censorship doesn’t work, and that the proper redress to speech is more speech. Devoted TCF readers will recognize this as a variation of the “prohibition backfires” argument, and take it about as seriously. In fact, banning arguments is more effective than debating! You don’t have to like it, but it is descriptively true!