When Does Speech Incite Violence? | Brandenburg v. Ohio

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In episode 17 of Supreme Court Briefs, a KKK leader gets his hate rally on TV, and then promptly gets arrested. Wait a second, what about freedom of speech?

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We Must Not Be Afraid to Be Free: Stories of Free Expression in America

By Ronald K.L. Collins, Sam Chaltain

Clarence Brandenburg leads a Ku Klux Klan rally. He invites a Cincinnati TV station out to cover the event. They agree, and film portions of the rally, showing men in robes and hoods, some carrying guns, and others shouting horrible ethnic slurs. They also film them burning of a cross. Brandenburg concluded the rally with a speech, and portions of it ended up airing on TV. In that speech, Brandenburg said “If our President, our Congress, our Supreme Court continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.” Ok, so I don’t know what that word, “revengeance” means. I Googled it, and Urban Dictionary told me it’s “the act of gaining revenge at a rate of at least 2.54 times greater to that of standard revenge.” So yeah, that doesn’t seem too nice. It seems rather threatening, actually.

After the TV station aired the KKK rally, local authorities arrested Brandenburg for leading the rally and arranging it to be on the news. They charged him with breaking the Ohio Criminal Syndicalism Act, a law that prohibited promoting violence as a means for social or political change. A local court convicted Brandenburg, fined him $1,000, and sentenced him to one to ten years in prison.

Brandenburg argued that his actions were protected under both the First Amendment and Fourteenth Amendment. Even though he hated the ACLU, he asked them for help after he ran out of money to pay for legal counsel. In early 1968, Brandenburg appealed to the Ohio First District Court of Appeal, which agreed with the lower court. So then he appealed to the Ohio Supreme Court, who dismissed his appeal without even giving an opinion. To the courts in Ohio, it was clear that this speech was not protected under the First Amendment, and they used the Supreme Court case Dennis v. United States to back this up.

However, Brandenburg and the ACLU wasn’t done yet. They appealed to the Supreme Court, and the Court heard arguments on February 27, 1969. Brandenburg’s lawyer, Allen Brown, convinced Brandenburg to stay home. Probably for the best. Brown received several threats over the phone for representing a KKK leader. Some even accused him of agreeing with KKK positions. But Brown later said he was just defending free speech.

The Court announced its decision on June 8, 1969, siding unanimously with Brandenburg, and reversing the decisions of the lower courts. Not one judge authored the decision, showing how unified the Court was with it. They argued the Ohio Criminal Syndicalism Act went against Brandenburg’s right to free speech.

The Court presented what’s known as the Brandenburg test, also more boringly known as the imminent lawless action test. This ended up strengthening the Clear and Present Danger doctrine adopted by the Court and written by Justice Oliver Wendell Holmes in Schenck v. United States.It also overruled the “bad tendency” test set later by Whitney v. California. The Brandenburg test had two parts. 1) speech can be banned if it is “directed at inciting or producing imminent lawless action.” and, most importantly, 2) it is “likely to incite or produce action.” Because Brandenburg’s rally and speech was more vague and didn’t make it seem likely that the KKK was going to actually carry out a revolt against the government, blacks, and Jews, it passed the Brandenburg test. Their speech was protected by the First Amendment.

Brandenburg v. Ohio further protected speech, even speech that was extremely offensive and unpopular. It provided an answer to the debate between those who wanted more government control of speech to keep people safe and those who wanted speech to be as free as possible. The Brandenburg test continues to be the standard when Americans want to punish speech that is meant to get people angry to a point where they violent.