Transcripts For CSPAN3 Landmark Cases Supreme Court Landmark Case Brandenburg V. Ohio 20240712

Good evening and welcome to cspan landmark cases, tonight bundaberg versus ohio. Which was unanimously handed down to free speech and assembly, one of the very basics of this case . Brendan burke was the leader of the ku klux klan and ohio, who held a rally for his small group of members and he they filmed, it unaired it on tv. Showing him in a hood, clan regalia in front of a burning cross. Or brandishing guns and making racist statements about the jews and blacks. And he was committed, and sentenced wanted ten years under ohio statute. As a crime to advocate violence. Were going to dig into the particulars of this case, and learn about its impact in our society. But as we get started we have two pieces of media for you, we are going to listen to a little bit of the oral argument in the case, and you will hear some of the particulars of this case, im pleased to notice that includes some of the offensive language, used by the defendant in this case. But its part of what we are talking about tonight. And then we move on to judge ginsburg and her confirmation hearing, in which he talks about the case. There is a second portion of a film in which a group of people are walking or marching around a burning cross, hooded armed shouting profanities in which there is a question whether or not the defendant, himself said the words as attributed to him in the transcript and on page five. How far is the going to go. Send the jews back to israel and so forth with the profanities. They truly recognize that free speech, means not freedom of thought, not only for those who with we agree, but freedom of expression for the expressions we hate and i think that there are always new context, that can be presented. But that the descending positions, of homes and brandeis, has become the law that everybody except. I think thats the case today. Do you consider brandenburg one of the huge milestones of history. Yes i certainly do. So as Justice Ginsburg says there, there are always new context, and there seems to have been quite a number after it. What it does is it about the brandnew case it makes it seminal. I think its but too fundamental respects, the brandenburg decision is one of the strongest, protective decisions of free speech. Its been nearly around for 50 years. And it establishes a fundamental principle that we need to allow free speech, even if its extremely offensive, and even if it advocates unlawfulness. And i think that the other aspect, which is very important which means sometimes we are going to have to tolerate speech that we find repugnant repugnant completely. Let me tell you more about our guests here at the table nadine strassmann, is the former president of the aclu she served there from 1991 to 2008 she was the first woman and the youngest person ever to hold the position. She is now a professor at new York Law School in manhattan. She has a new book out, its called hate why we should resist it with free speech, not censorship. And katie fellow, she is the former partner at a private law firm, where she wrote a brief on a amendment case. Ema versus brown, which is where video games were protected speech. She works for judge Rosemary Barr kept, and thank you welcome to both of you. This all concerns a set of laws, called the cynical isnt laws. And many states have them and what is the history of them . When did they start to develop in this country . They were adopted starting in 1919, a world war i era, as a Response Response to the fear and spread of anarchy in san socialism and communism. And they all basically did . Something pretty much so the language in the ohio statute was typical and it criminalized any advocacy of violence that was directed towards bringing about social change or economic change. And they also used the word terrorism. Its interesting the cases we are looking at, its a ku klux klan but this was really a fear of communism that got this started. Can you add any more history to what the country was worried about as the state for passing laws . I think the brandenburg case in general is interesting because it reflects a lot of social changes and social fears, and transition that were happening throughout the 20th century. As nadine said, these laws became passed in many states, as a result of fear of communism, and in the International Workers of the world, and concerns about a threat to capitalism from communist sympathizers. And i think there was some sentiment about fear of immigrants, bringing in ideas from the outside to try to attract capitalist democracy. There were three, cases that the Supreme Court dealt with before brandenburg, a session of landmark cases schengen versus ohio. And that came the case the name clear and present clear and present danger. , why are these cases all part of the lesson we need to learn about brandenburg. Why all of these cases what theyll have in common, is they dealt with one of the greatest fears of potential harm that free speech could cause, namely bringing about harm to our Catalyst System or to national security, more generally. And the shank case, was famous because it was the case where in the Supreme Court, through Justice Oliver window homes he came up with a famous phrase, with the clear and present danger test and it sounds like a tough standard, but in fact as it was actually enforced by the court, in that case and as you mentioned susan, it allowed government to punish the you know what it basically suppress political speech that it disagreed with. And what question the status quo. One case thats very interesting about the shank case, and just this homes role in it, is that he was the writer of the shank case, and he establishes case of clear and present danger. Which upheld the conviction, and then just a year, he changed his mind and he was in another case, where he dissented from upholding the conviction, and he started he inJustice Brandeis, started developing a much more mature doctrine of free speech protection. But for many years in dissent of that in the majority. All of these cases are test of the First Amendment, were going to pause for a moment and revisit the First Amendment of the law constitution. It says Congress Shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech for the press, or the right of people to peace ability to assemble and to petition, the government for the address of grievances. Can either of you give our audience a bit of background, and say thats why it was the First Amendment the bill of rights. I think the founders considered, the right to speech as fundamental to the american system of democracy, the ability of people to debate matters of interest, and become informed for their ability to exercise their political power as well, and recognize the importance of letting truth, hopefully bubble up from wide open debate. But its interesting that in this case like the schenck case in 1919, prior to that the Supreme Court had not struck down any law violating the First Amendment. But there had been no cases holding that that case had violated the First Amendment. When you teeth touch First Amendment, a lot to students what do you tell them. I actually go back to the very first words, in the entire constitution and we the people, in order to create a more Perfect Union and so forth. So we the people are the governors in our democratic republic, how could we possibly carry out that important responsibility, unless we have the most robust freedom of speech. Including, to criticize Government Officials and policies and each other in very Strong Language. So you cant separate out freedom of speech from our overall democratic structure. But it is also really important, to have the self fulfillment, and just to Justice Brandeis, who is one of the great dissenters, that katie alluded to, is this dissenting opinion in with the case, that we formed in the Supreme Court in the brandenburg, case and they embraced his dissent. The he said that freedom speech is important to as an ends and a means. The end of itself is liberty, and whether we listen to or not. But its also a means to a self government. They were having a robust discussion about this in the 1920 era well have one of those in our society today. So hope you will be part of our discussion tonight, and go with us on this journey as we learn about this important case there, and a number of ways you could do it and you could call us if you live in the eastern or central times. If you live in the mountain pacific time zones, and we will put those numbers on the screen throughout our 90 minutes together, so those questions come to mind your comments youd like to share with us, our two guests here, do so. You could be part of the conversation on twitter, right to cspan, use the hashtag landmark cases, we had an enjoyable condition onto her throat our series, and we hope you will be part of that this evening. Ohios critical criminal statute. I will not state again. The 1990 case looks what it specifically prohibited. It made illegal advocating the duty, mississippi, or propriety of crime sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform. Voluntary assembling with any society, group, for assemblage of persons formed to teach, or advocate the doctrine of as lawyers, what you hear in that statute that would come against peoples actions at that time . I think, you know, one of the ways that the law was used was to punish people who were advocating, or even just teaching about political doctrines that would involve industrial revolution. You know, communist revolution. And that was the concern about whether or not these laws could be applied, like in the whitney case where Charlotte Whitney who was, i guess, a grand niece of a former Supreme Court justice from a prominent family, and she had attended a convention of the communist party, and she was a member, but she was essentially convicted for being a part of the communist as i understood it, you opposed the position that they should use violence. She was advocating, sort of, what we would call today, democratic socialism, and in his great concurring it was called a concurring opinion, but it really sounded like a descent Justice Brandeis said the fear of revolution or some other violent or lawless event can never justify censorship. Man feared which is, and burned women. I thought that was such a great line, especially when it was a woman who was convicted in that case. In ohio, voluntary assembly with any Society Group or assemblage of persons form to teach, or advocate doctrines. So, by attending a meeting and literally teaching. In the dennis case, it was a matter leaders of a communist party, and they were convicted for teaching what our classic works of marxism and leninism that are taught in many college courses. The other thing we should talk about is the flux clan. In 1920, at its typed the klan head of 2 million members nationwide. By the time we get to 1964, 1965 when this case is dominating, whats the klan like in the states . The subtle attitude towards them . At the time, it was right in the middle of those Civil Rights Movements so i think, at the time, it was extremely volatile and important social change, and people were really talking about and fighting against the kind of klan had perpetrate against black americans throughout, nearly, 100 years. So its extremely important and clearly animating this case, as the background of the klans violence and terrorism. You see the report suggest although the klan had, according to the fbi, and other authorities, about 45,000 members in this time period that there was as many as 200 bombings that may have perpetrated by members of the klan or sympathizers, of course there is the murders of many civil rights workers. So, this is the background of this. I think its also important to remember the, susan, that at the same time, we had a growing anti war movement, plus the, of course, Civil Rights Movement to which katie eluded. I think the Supreme Court was concerned about rights of demonstrators, and protesters, advocating various kinds of changes, both for civil rights, and against civil rights. Certainly, their decision was one that has protected the right of civil rights advocates. We are going to learn about Clarence Brandenburg, who gave us name to this case. Lets begin with jonathan from milwaukee. You are on the air. Thank you. I would like to know if you could please explain how the Supreme Court in the brandenburg case combined charge lawrence hands direct incitement tests in the mass case, with justice homes clear and present danger test, that was articulated in shank, and developed in other cases. Thank you very much. Jonathan, you sound very inaudible , but i will put into paraphrase for the lunar centers where you currently now, which is the reason why this is such a speech protective test, standard, as katie said earlier, is that it took every speech protective element in prior to Supreme Court is agents, and, said one of them alone is not enough. You have to satisfy all of these standards, government, as a prerequisite for suppressing speech. You cannot do so unless you can show it is an intentional incitement. Intentional incitements of eminent violence, which is likely to happen. In prior test, the Supreme Court had said one of those elements or two of those elements was enough, but its very hard to satisfy all three appropriately. Josh is in iowa. High, josh, watching our series from time to time. Nice to hear from. Whats your question . Since both Justice Douglas and black were almost First Amendment absolutist, how influential were they in the final decision of this case . I mean, i think from what we know, one interesting thing about this decision is that it was a procuring decision which means it came from the court and wasnt authored or attributed to a particular justice, and it was unanimous decision, all eight justices that were on the court jointed, and they wrote, separately, just to emphasize that what other majority pro kareem decision said, the court should not, and was not embracing the previous clear and present danger standard. Because, whereas just homes wanted that standard to have teeth to it, and use it as a way to only be able to punish speech then, in fact, you know, as an emergency situation that the standard had been used in ways that could actually be applied very big lead to the dentist case, just apply to people who were teaching marxism and leninism. Black and douglas wrote separately really to emphasize the clear and present danger standard shade it was being the banded. Ive read that, initially, the opinion had been assigned to, and was drafted by justice portuguese before he retired from the court, and he had language that was similar to the past, clear and present danger standard, and just as blacks as you not signed the opinion unless that language came out. He left the court, britain was the one who apparently redrafted it and took out that language and came out with the much stricter test that brandenburg included. Jim and california. Thank you very much. My question is. Regarding free speech today, so much activity and speech on social media, social media is a private with private companies. It seems to me, that if you restrict speech on them, you are obstructing a great deal of speeches going on. With the facebook situation, as recently come up, im wondering what thoughts you might have on how we incorporate how we make sure free speech is tearing through to these and it is, no matter what they are, they are so new, i dont know how you describe them. Thank you. Thats a great question. First of all, the Supreme Court unanimously, in june, decided a case in which it helped that government may not deny access to social media to an individual. In this case, there was a convicted sex offender who had served out his time. Precisely for the reasons he was stating, jim, the Supreme Court used Strong Language about what an incredibly important public platform this was, especially for getting news, and information, and sharing it. Now, the harder question is, what about this censorship by social media themselves . As many people are surprised to learn, the First Amendment does not directly apply to private sector entities, and yet, for all practical purposes, the social media are one commentator said, exercising worse then power in all of the governments and all of the countries around the world throughout history. I think it is very serious as a concern. Steve is in lagoon of each. Steve, you are on the air. Thank you so much, i do think these wonderful series thats been fantastic to watch. I want to ask this because of the movement in the 1960s, which started at a, that puts the flow of the along campuses where there are intends to censor speakers coming on with opinions that may be offensive to some of the students there. How does brandenburg apply to those situations particularly at public universities . Well, i think that, i did go to berkeley, so its a little bit later then when the first speech wouldve started, but i mean, i think the current controversies about free speech on campus, that is it is a public university, they do have to comply with the basic First Amendment requirements that allowing speech and not discriminating, or denying speech based on viewpoint, and to not allow speech, and to allow speech unless it is going to, in fact, insight imminent lawlessness, but obviously, thats created a lot of authority problems. On the other hand, on what you can look at speech on campus, is actually, theres a lot of free speech happening, and certainly, when i was at berkeley, its just more of a fact of life, and part of everyday life that i think is good, including the counter speech against people who kind of sweet, meaning speech by people who are disturbed by a hateful speech, and those students rights to speak up. Jeff is watching us and boston. Jeff . Thanks for taking my question. So, recently, ive read about a College Student that made a posting on social media that had some racist connotations, given that it wasnt intended to be so, and the University Kansas Tate University exposed the student. In a separate case, i read about a couple of High School Students that expressed themselves in a way that seemed racist, and their Public High School expelled them. How is that possible . Well, i hate to shock, you jeff, but a lot of Government Officials, including on campuses and high schools do things that violates the constitution. It was not itself enforcing as katie said, the Supreme Court never really enforced the First Amendment at all, and so well into the well into the 20th century, no provision in the constitution itself and forcing. It takes advocates, such as the night institute, and aclu, and clients who come to them to be able to actually translate the theoretical freedoms of the First Amendment into reality for real people. Its a good time to tell you that our next case is pink or versus white school district, which is about student free speech, so relevant to the discussion on campuses, high school and College Campus is today. Lets pause and learn more about Clarence Brandenburg, who gays his name to this First Amendment case. Hes 40 years old at the time, and he was an unhappy person with his life circumstances. In 1958, he was laid off from the local General Electric plant where he worked and sued the company for that. He went back to his television repair business and by 1959, how to declare bankruptcy for that. In the summer of 1963, he attempted to take over the local White Supremacy group, the National Association for the advancement of white people, and that was the context for him and in the event for which he was arrested. Here is the timeline of his case, it was june 28th, 1964 when he spoke at a rally outside of cincinnati in ohio. At a private farm. What was also significant, is it wasnt just a group of people as Nadine Strauss had said, he invited local media and the station in cincinnati w. Well wta came to film the rally. In august 6th of 1964, he was arrested at his tv repair shop. In december of 66, he was convicted under the 1919 ohio law, and then he appealed to the ohio Supreme Court, and in january six 1967 he was sentenced to ten years in prison and the thousand dollar fine. It couldve even gotten a higher fine but the court was had the court be more lenient. So whats important to know about this. I will say one thing about clients brandenburg royal, to paraphrase justice frankfurter. Many safeguards of liberty many safeguards were forged by people who are not very nice. One of the things youre talking about was what was the membership of the klan of the time but even brandenburgs lawyer referred to his client and his cronies at this rally as kind of silly, and absurd but they didnt actually have you know they dont want to make a big impact it wasnt widely attended etc but yet you still had the Historical Context in the background of the clintons role. And i think the fact that the historic 1964 civil rights statute, was about being to be reenacted to be enacted sorry. So was it significant that this was on a private property. Very much so, because it would be very difficult to argue that anyone can feel intimidated or threatened by the expression because they didnt know was going on. It was not aimed at them, it was also a rally among supporters. So it was like a membership meeting, a people who all share the same view exercising their freedom of association. As well as their freedom of speech. You mentioned that some people brought gum guns, was that important. I think under the statute, it did not really make a difference because the statute criminalized mere expression, advocating certain ideas. So when this case, was appealed to the whole Supreme Court a new lawyer came in, and he was jewish and many of his mr. Brandenburgs comments were very anti synthetic. I looked him up and he was at the aclu of cincinnati for many years, he was a committed civil rights Civil Liberties lawyer. He served in world war ii and seems like a smart and honorable man. And he did agree to take this case, even though Clarence Brandenburg himself was not thrilled to be represented by a jewish attorney, but he felt committed to the cause of free speech. I had the opportunity to meet him in cincinnati in the early 90s, there were some incidents of censorship taking place there. And what some call sensor natty. And also his father, who really defended free speech, were some of the more popular speakers across the political spectrum. And he saw both a ku klux klan leader and black panther leader. So this is a part of the history, and we have a piece of video next, to show that it will be a familiar face to cspan viewers. That is Eleanor Holmes norton who served as member of congress, representing the district of columbia as a delegate. But back then, she was an aclu national lawyer. Were going to listen to her talking about this. Dubbed the aclu had only two National Lawyers and i was one of them. So that if there was a case, that was going to the Supreme Court involving a civil Civil Liberties issue our First Amendment right to speech for example, that had to come through the national office. So i was on the brief on the brandenburg case. The seventies, was a good moment in time for the court to look at what, advocacy means and how powerful it can be in bringing change to our country. I mean positive change to our country. And i can tell you since i was in the Civil Rights Movement, i thought that all colleagues, who are also in the student nonviolent committee, will all like go get them. Doug and every day we wake up and instead someone said what is eleanor doing. You talked that when they will tell you what youve gotten as old as ive have, but there were mixed feelings in the Civil Rights Movement even. Doug the failure to make the connection between the neutrality of speech, and that in a democratic society, it is very hard unless the government makes a decision to say who is allowed to speak. Now do you want the government making that decision . Or do you want to freeforall on speech . I would go for freeforall and sometimes, i have to defend people who would not defend me. Im sure you both have something to say about that. Absolutely, and i read an interview that she did Eleanor Holmes know norton did at the time and she said she was very aware, that even though she was defending the free speech in the context of a racist, she was convinced the main beneficiaries would be black militants, and other radicals whose views were seen as dangerous and threatening and subversive by many Government Officials all over the country. And i think those were major beneficiaries yes echoing that what nadine said, if you look at brandenburg at the time the decision was applied, and after 1969 decision, was in the case of an anti war protester and then later on in the early eighties, the and double acp, versus the clyburn hardware case. By using brandenburg the court overturned the conviction of civil rights demonstrators who had threatened violence against people who were not adhering to a boycott of races stores. So it has been in fact, applied to people on all sides of each spectrum to. Lets go back to calls, birdie from maryland. Hi, i wanted to talk about the doctrine of free speech, exemplified by shouting fire in a crowded theater. And i was wondering, what is the culpability of a person who would intentionally seek out someone that they knew to be suggested ball, someone who is a very badly educated or emotionally unstable, and dumps it next to them in a crowded theater, and say miss, do you smell smoke. When a fire be terrible. And i think i see a lot of this suggestion taking place in some instances. Birdie, you have done what 99 of people do, when they think they are paraphrasing that famous line, from justice homes. But you left out a very crucial word. Which i think answers your question in large measure. He said, that freedom of speech, does not extend to falsely shouting fire in a theater, and causing a panic. If the theater is on fire we want people to shout fire, because it would be lifesaving. But if in fact, the theater is not on fire, and it endangers people by falsely telling them it is, then creating a panic, then that truly does satisfy his notion of a clear and present danger, that would justify suppressing the speech. Yes and i think that, that example of falsely shouting fire in a crowded theater, is an example that would satisfy the brandenburg standard, and it was intended to incite and likely to incite lawlessness. A riot or harm. What danville connect kentucky next, thank you for taking my call. Ive heard this term, compelling government interest, as a way to suppress speech on the College Campus, and can you tell me exactly what evidence, is required to establish a compelling government interest. Thank you for taking my call. That is another legal formulation, similar to the brandenburg standard. But youve only given one part of it. The government including a university official, would have to show not only that there was a compelling interest at stake, but also suppressing the speech, was necessary in order to enhance that interest. And nothing short of censoring the speech, is going to prevent that that emergency, then and only then with the government suppress the speech. But if theres any other way of preventing violence, if this speech you know that the speech would potentially cause, the police can come in and protect against the violence. Sensors ship in speech needs to be a last resort. We are learning about the history of the landmark case, brandenburg versus ohio. So our next callers is basel guy. It seems to me, that the term legal system and man is not above the law, except because it is man in this country that makes law. To me morality untruth, has nothing to do with the law. Im an octogenarian, and every time a law is created, a criminal act is added to the books. You do not make the law, unless there is a punishment attached to it. And to me the legal system has becoming news around the american publics neck. Our prisons are filled with people because of laws, that put them in jail that would not have been there before. Its all right to murder, if the law says you can abort a child, but you cant kill another man with a gun without going to prison. So i just have to say, that the legal system better wake up to what they are doing, to this society and im listening to you wonderful to ladies, talking a lot of jargon and gibberish, about First Amendment rights, and Second Amendment rights. How about the truth, and how about a morality of law. Wake up young ladies before we go to hell in this country. Thank you for your time. Thank you for exercising your First Amendment right, to criticize the law. So lets move on to the Supreme Court, and clarence was first arrested, and 69. So this is what the court look like in 69. Well, roosevelt appointees, and the kennedy appointee, buyer and white. Johnson appointees, Thurgood Marshall to and a fortress. This was one of earl warrens last cases so sum up the warren court for us. Well the warren court, was particularly noted for being, upholding a lot of Civil Liberties, and civil rights particularly in the area of desegregation, and other criminal rights. I think its interesting with this brandenburg case, because at the very end of the worn report, there is certainly a very strong, marker of protecting speech but to some extent, the credit really for the development of the free speech principle, has to go to the earlier justices, of homes and brandeis. Although this was a war in court decision, the principles that they adopted and established in this case, were developed further in much more detail, then those earlier decisions. One of the other interesting stories, of one of the justice in this case is just as you go black. He wrote one of the concurrence is. And he was at one point in his early history a member of the ku klux klan. Remember early we told you 1920s was the height of the clan. Also former u. S. Senator from alabama. When he was appointed to the court in 1937 there was an investigation about his background and hugo black did a radio address, responding to this part of his history. And ill let you listen to that next. The insinuations of racial and religious intolerance made concerning me are based on the fact that i joined the Klu Klux Klan about 15 years ago. I did join the klan. I later zein. I never rejoined. I complete is continued any association with the organization. I have never resumed it, and never expect to do so. At no meeting of any organization social, political, or fraternal have i ever and allocated the slightest departure from my steadfast faith in the unfettered right of every american to follow his conscience and matters of religion. And i number among my friends, many members of the colored race. I have watched the progress of its members with sympathy and admiration. Certainly, they are entitled to the full measure of production. According to the citizenship of our country by our constitution and our laws. Some of my best most intimate friends are catholics and juice. I lets ask both of you what this part of justice blacks background to uniform setting him, that he brings to his thinking on this case. Whats important to know about it . A defensive justice black, he, apparently, joined the clan at a time that was just the done thing in politics in alabama he was one of the greatest defenders and champions of Racial Justice that the Supreme Court has ever seen, and as one would put it, when he was a young man, he put on white roads and scared black people when he was an old man he put on black robes and scared white people. He has left a real legacy for both freedom of speech and equal rights. I. Echo what nadine says, and i dont think his last statements, you know, generally we say some of my friends are black people, or catholics, or jews, it seems like its sort of a faint excuse, but i think, in his actions, and votes on the Supreme Court, he showed his commitment to Racial Justice, and in this case, he also, as noted before, with Justice Douglas, took a particularly strong concurrence to make sure that the incitement standard was really strongly enforced. So, the cases heard by the Supreme Court, on february 27th 1969, richard nixon, president of the United States at that point, and as you mentioned earlier, mueller argued on behalf of Clarence Brandenburg, was alan brown. We will listen to a little bit of his oral argument and i will have our guests talk about the legal principles he was trying to convince the court about. Listen. These are the facts in this case. A Television Reporter receives a telephone call indicating that if he wanted to, he could come at a take movies of a ku klux klan meeting. He came. He met some hooded figures, and arrangements were made for the taking of a movie. A movie was taken in which a cross was burnt, some figures milled about, and yelled some stupid, and rather senseless slogans, and then a single figure was panned in on. Who made a speech, a speech full of conditions, president s, and reservations, and hyperbola self evidently stupid, and silly. Another film taken is inside a house. There were gone . So there were guns in both films when they were gone simple films. There were guns it is also to be noted that the film was taken on a remote, private farm, in which, apparently, theres no evidence whatsoever that these people were not invitees present on that farm by authority of the ownership of the farm. The case came on to trial. The state produced nothing but the film in question. The only other evidence that the state produced was basically geared to identifying the personnel involved in the film. In other words, showing that the man brandenburg had a gun similar to the guns in the film, and that he had markings on his person similar to the markings and that his voice was similar. Other than this, the state offered nothing. So, what do you think about the argument hes making to the court . I think everything that alan brown is doing is showing that this video, and this rally amounted to nothing. It was silly, it was stupid. But he is trying to establish is that nothing in this speech that was the base of his conviction called an attempt to cause violent, or is likely to cause violence, or create a clear and present danger of violence. He emphasized it was a private farm, there is no one there but the people who were invited. Really emphasizing the fact that there was no other evidence of a broader effort to create immediate violence. But, in fact, as we look at the text of the ohio statute before, was he, in fact, brightly found gently of that . When it was written . The statue was found so broadly, in effect, it was creating a speech crime or a threat crime punishing because of disapproval of your ideas. What is the courts roll, also, when theres as many as 33 states that have similar laws on the books, but then 14th amendment, there are states that dont . So, how does that play into its interesting, susan. The decision could have been written very narrowly, and i think alan browns argument was saying to the court, look, he wasnt even advocating violence, right . So, on the very narrow ground, the court could have reversed the conviction by saying, we will assume for the sake of argument that the statute is constitutional. We dont have to reach that issue, because we didnt violate the statue as written. The court went much further and struck down that whole statute, and by implication, all of the others around the country. We will listen to some of the oral argument on the other side, and return to some of your phone calls. The state of ohio sent Hamilton County prosecutor leonard kushner to represent their interest before the Supreme Court. Heres a portion of his argument. I believe that the ohio criminal cynical isms law is constitutional. I have cited various authorities relative to my believes in this matter in my brief. I believe that the basic matter before this court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict. I believe that, in this case, one council says sending the jews back to israel, lets give them back to the dark garden that this might not involve violence. I would like him, perhaps, and his replay, to explain how the statement, bury the and word, quote and quote, would not constitute a violent form of actions. So, the Ohio Attorney is suggesting what about his language and its a tenth . He suggesting that it could cause violence, but interestingly enough, since there was no evidence in that case, he had to come up with a hypothetical and he said, suppose that Clarence Brandenburg had said, very the nword in harlem, to which justice Thurgood Marshall, the first and only African American justice on the court said he wouldnt survive long if he said that, and alan browne, the aclu lawyer, and his rebuttal, said, by the way, that statement by justice marshal, if made in ohio, could it self violated the ohio cynical criminal cynical is a law because it may be seen as encouraging violence against the speaker, against brandenburg. I think what he was doing in his argument was, sort of, the opposite of what alan brown was doing, emphasizing the fact that showed there was a broader effort to stir up violence and unrest, both from the incendiary nature of what brandenburg, said and the court has affirmative back and forth about this, that brandenburg could actually invited the media and, and invited the television networks, and what he argued was he was speaking to the 12 people, or you know, or so, on the farm. He was trying to broadcast into the broader community, and that would create a greater of violence. Back to calls next up is bill in wisconsin. Welcome. Hello you are on the air. Whats a question . My question is, did brandenburg overturn the sedition act . An act during world war i, he cannot speak about the war, or mail anything during the war . Or does not lost to apply. I think, recently, people have blot that up saying the gulf, or and so forth. It did not directly overturned that law, bill. One could make very strong arguments that the reasons in this case, and other speech protected decisions by the Supreme Court would weigh in favor of overturning the sedition law, if anybody ever challenged in court, but to the best of my knowledge, that hasnt happened. You know . Anything more, katie . Is the espionage act the same as this edition act . No . I know the espionage act, the federal espionage act that prohibited the advocacy of unlawful acts, and riveted certain acts that would undermine the war effort. It is still on the books. Was that used . It has been used since 9 11, and in the war on terrorism, and against uyghurs, leaking information that could lead to foreign countries. James is in new jersey. James . Hi, quick question. Interestingly enough, just today, i believe the white supremacists, richard spencer, was banned from utilizing facebook. I was wondering if theres any applications to Something Like that . The First Amendment along with, virtually, all rights guarantees in the constitution only binds Government Officials. Facebook, as a private sector entity, therefore it is not constrained directly by the First Amendment at all, and other its terms of service, quite the contrary, it pledges to block certain speakers, and certain expression that a Government Official would violate the First Amendment by blocking ben is up next in san diego. Ben . So, my question is for nadine, are you familiar with george like cops post about hate speech not being free speech . Ive seen many such misstatements, yes well, just to summarize it, he says that hate speech is a physical in position because language has a psychological effect imposed physically, bringing about stress, fear, and distress, which are all physical and once neural circuitry, and that it can change with mild president s, moving towards hate and threatening actions. When hate is physically in your brain, then you think, feel, and hate and carry out what you physically think and feel. Thats a summary of what he said hate speech is not free speech. What are your thoughts on that . It certainly is true that expression is very powerful, and hate speech, what i will put in air quotes, because it does not have a specific legal definition, but lets say hateful, insulting speech on the basis of certain demographic characteristics. It can have an adverse potential psychological, and even physiological impacts. But, not necessarily. It all depends on many, many factors. Including the attitude of the person at whom the speech is targeted, right . So, psychological experts, among others, say that we can treat people to respond in a way that is empowering. They rise above the insults, and they dont feel to mean by that speech. Rather, its the person who is uttering such hateful venom, that should be the person that is looked down upon. And moreover, even if there is an adverse emotional, or psychological response by a particular target of speech, that can never be a justification for censorship. Just think of the implications. All of us are subject to all kinds of expression that causes adverse emotional impacts. Including expression about very important Public Policy issues. Our democracy could not survive if every time somebody had psychic pain, and i dont mean to diminish it, but i am just saying, the cure of censorship is even worse than the disease of some psychic pain, especially when we can all learn to be resilient and avoid that pain, or minimize it. You want to add for that color . I was going to say, nadine, with the book on this, i think, absolutely, that hate speech to be fined, and if we start going down the road of trying to have the government sensor in some way it becomes extremely complicated and no one can agree what constitutes hate speech, says hard to censor also, to be clear that there are areas of law where you can, the government can punish hate speech that is directed is a true threat against an individual. So it is not that there is no protection against things that really put someone in fear of bodily harm. Just as the generalization hate speech is not free speech, it is wrong on the generalization that all hate speeches contacted is also wrong. Our law draws wonderful nuance distinctions such as in the brandenburg case. Is hate speech inciting violence likely to happen, it can be and should be punished consistent with brandenburg. Caller good evening. I appreciate you took my call. I need some personal guidance on employee speech. Specifically for an employee at public campus. To the enjoy the full range of First Amendment protections while engaging and speak on that in speech on that campus or are there limits on that regard . The employer has the prerogative, of regulating speech in a way that is necessary, to maintain whatever the business is. In the case of a campus educational context, so if an employee says something that undermines, the educational function of the university, that could be punished. But we would have to be very careful, that it was not that that power, to maintain educational function was not used selectively to punish certain ideas, just because the university disapproved of her in our his ideas. The decision in brandenburg was handed down on june 1969, next up we are going to listen to Walter Cronkite of cbs announcing the decision on the nightly news. Cronkite in another case, the ruling said to a man cannot be punished merely for what he says of the words are not designed to incite lawlessness. Host now is the brief report on the national news. We said before this was a precarious decision. What does that mean . It means it is coming from the court, normally a justice is writes the opinion and governs the case, and it is not attributed in any particular justice. It seems fair to infer, that this decision as it was mentioned, it was first written by justice for this before he resigned, and then Justice Brennan then edited it and at least some scholars have reported that he really changed the language from the clear and convincing testament, to make this new test of intentional incitement unlikelihood. This was a unanimous decision, our decisions always unanimous. No in fact, i was surprise to reflect my recollection, that gore, was a per curium that ultimately resulted in george w. Bush becoming president. And, there were many many separate opinions that individual justices issued, and the vote was a split as it could be five to four, and yet there was a pro korean opinion. Well it is complicated there were some allegations that he had to close or lay ship with president johnson, with whom he had been very close. Very close politically. That continued after he was on the court, which was improper violating separation of powers concerns, and impartiality of a justice. And yet as katie said, there were certain financial allegations as well and frankly im not clear what it was, in particular that propelled him to resign. But he had some financial relationship, with some entities that were themselves being investigated for improprieties. Had it been suggested as a replacement . All of this came out, and he was nominated to become chief justice there were hearings, and it was the first time there were Senate Confirmation hearings allegations, and it was those who are opposed to him perhaps ideologically, raising some of these other issues. Here is an exit, from the decision we are here confronted with a statute which by its own words and has applied purports to punish mere advocacy and to forbid on pain of criminal punishment, assembly with others merely to advocate the describe type of action, such as a statute falls within the condemnation of the first and 14th amendments. Comets . Yes this was a watershed moment, and the court had inched towards that result, and there hadnt been that many Supreme Court decisions for nearly 20 years. Between the dennis case and the brandenburg case. But what they are saying, is that mere advocacy even though violence or unlawful action cannot be punished under the First Amendment. And in later cases, there have been questions about what does this mean what is a test mean. You have to intend to incite violence, it has to be imminent, the violence has to be imminent and theres a question of what is imminent mean. And it has to be likely, to incite violence. So you look at not just the, checks of the speech or the content of the speech itself but also the context in which it takes place. How likely would be to trigger violence. And you see in the case the hess case, which came out in 1972 and it wasnt anti war protests protester that said we will take to the streets later, and the court held that was not efficiently imminent harm to uphold the conviction. So its a suggestion that even if violence were to occur after a hours after the speech that could not be. Punishment that cannot be punished. There are two concurrent, systems theres an exit from Justice Douglas. The example usually given by those who would punish speech is the case of one who would falsely shout fire in a crowded theater. This is however a classic case which were speech is abrogated with actions they are indeed inseparable and a prosecution can launch. Apart from the rare instances of that kind speech is i think immune from the prosecution. Douglas along with black, was probably the most absolutist, in terms of protecting freedom of speech, and black joined in, and douglas is occurrence used to quote the First Amendment, as you read earlier and said Congress Shall make no law, and black would say key and it was echoed, no law means no law. So they tried to make this decision between speech, and conduct but not quite because its a speech that is so closely, tied or brigade, to conduct that the only way you can prevent the dangerous conduct, is by suppressing the speech. But again it has to be an emergency situation, it has to be suppression only as a last resort. If persuasion, or Law Enforcement doesnt do the job. So as you both have said, what came out of this case became known as the brandenburg test. You just saw the three elements intent imminence and likelihood. So julia asks, can you discuss the intent element. What kind of teeth has modern courts given. It also challenges about disputing speech, and lets say a group is a whole. Including charlottesville. So do you intend to incite a particular kind of violence, or do you intend to just give the speech and theres a debate about that so in terms of, the events in charlottesville i think you have to look at that, and see the speech that the individual individual protesters gave. Well you know there was discussion that they were going to go, there and they wanted to start violence. Things like that, and the aclu has made the decision, not to want to march with guns, because of the imminence of violence. You have to look at, on the other hand you have all these protests after the charlottesville rally, and there are people who came and they were white nationalists tour speaking but it was peaceful ultimately. So you dont take the terrible events, and try to use them as reasons to squelch any kind of speech. Even no matter how offensive. And we have to be aware of guilt by association. That was a naacp case it was mentioned earlier, where the Supreme Court cited brandenburg and refused to hold the entire organization culpable and a huge amount of damages was upheld, because of an incendiary speech that was given by one of its leaders. And for those who care about the naacp, and its civil rights work, that its so good the Supreme Court ruled that way, because that decision actually if the Lower Court Decision wouldve been made it wouldve bankrupted the them and. In this cap in this case were originated in cincinnati, and the New York Times its reporting on the case, on urging Violence Court voice law on urging violence. Key was it recognized at the time is being important as we see today. I did not know that about the New York Times i saw the commentary and it was treated you know among lawyers it was celebrated. In our last 20 minutes, were going to talk about the legacy of brandenburg. But first let me tell you what happened to brandenburg himself. We really dont know much about the rest of the history of his life we know a little. He continued to be in april of 1971, he was thrown out of the national party. June of 71 he sued because of his oscar of that party. And in 72 he had was jailed for harassing a jewish neighbor. So we talked about, a number of cases that have come a long cut since then and were going to show some of those on screen and talk about how they continue can to look at our First Amendment. Lets take a call from georgia. First did any imminent violence actually kerr, from what you say i guess it didnt, and what did that make along their decision . In this case it certainly did not occur, and actually as katie said earlier. The third of the three cases the naacp case, there was violence after this fiery speech, which threatened violence against people who violated the boycott of white merchants who were discriminating on the basis of race. There was violence but it occurred weeks or months after the speech, and before the Supreme Court set the imminence standard. But the opposite could be true, if the speech tended to, and was likely to actually result in violence. That would satisfy the test. Even if it likely could have not come to pass. Newport new jersey. Now hello nadine, maybe you can answer this question, ive read a lot lately about whats been called the hecklers where you say people can engage in free speech beats, free speech but what about trying to stifle free speech, threatening violence. Where it is his rights and in the other guys begin. The Supreme Court has recognized exactly what youre talking about, that we do not allow hecklers, who disagree with the speakers message, who are offended by it, or angered by it we do not allow them to infect veto the free speech rights of the speaker, and the speakers audience members. Because that violates their First Amendment rights. I think its important to note, that the Supreme Court grafted that doctrine in the context of the Civil Rights Movement and civil rights demonstrations where many southern towns tried to stop martin if the king and other civil rights advocates from demonstrating, arguing that, well, there are all these people in the community that hate their message, or threatened by it, or frightened by it. They think its dangerous, and they were throwing bottles and rocks at the Supreme Court, and they said no, you have to protect the speaker against the violence. You may not suppress the speech in order to avert violence by hecklers, unless there is a breakdown of Law Enforcement, unless Law Enforcement is not up to its job. Steven is in connecticut. Steven . Hi. I like to look at the other side of the coin for a minute. Weve been looking at brandenburg as a protection free speech case. Yet, at the same time, the court is saying that if you reach some limit there is a limit however you express, it its standard that by which the speech is not permissible. Thats, even though the text in the First Amendment doesnt talk about limited speech under any conditions, could we not extend that approach through the Second Amendment, where so many people are saying, well, the Second Amendment rights are absolute . There is nothing in the text of the moment to limit them, but yet we could say brandenburg for saying, that at some point, reasonable restrictions can be imposed in a constitutional way well, im definitely its the First Amendment institute, not the second one, so we are focused on free speech rights. I think in the brandenburg decision, they but court has been clear that the right to free speech is not absolute, and there are certain ways of engaging in speech that are kind of considered part and parcel of an actual crime, for instance, engaging in speech and furtherance of fraud and harassment, and certain forms of conspiracy, youre actually speaking. You can still be punished, even though the way that you are committing the crime is through speech. So, it is not an absolute First Amendment right, but at the same time, the brandenburg test is a very strict restriction on the ability of the government. In the analogy future between the first and Second Amendment in this regard, is exactly what was done by justice lawyer and his majority opinion for the court, in which he did for the first time through the Second Amendment as ensuring individual rights to bear arms. He said, and it is very strong on the First Amendment also, he said just as the First Amendment is not absolute inserted regulations of speech, our constitution the same is true for the second right that we are not recognizing, not absolute. You gave examples of gun regulations that would be constitutional. 19 seventies were an active time for First Amendment cases. Here are some of them. Cohen versus california, 1971, where a man was convicted for an obscene jacket protesting the draft in a court house. Has versus indiana, 73. Convicted of sort of conduct for crossing a police. National socialist party of america versus skokie illinois, famous case in 1977. Texas versus johnson, texas man flag burning was struck down, that are aviators to st. Paul in 1992. Concerning teenagers who burned across on an African American families lawn, convicted under local hate crime. I had one more, 2017 which was a trademark case with a group that was denied a trade marking the name, the slant, and a Supreme Court so that is a violation ofs free speech. Youve been involved in these more recent ones. What can we learn about how the courts evolving position on free speech is developing . A couple of things. One thing thats interesting about the brandenburg decision is, although it involves the kkk, running across, the case didnt turn on the issue of speech to be considered colloquially hate speech. It wasnt about the offensive niece about the speech, there is weather was likely to cause violence. The rule established in brandenburg is part of the greater evolution of the Supreme Court during the 20th century towards instead of having a balancing test about speech, where you weigh the harm of the speech, and the governments interest in regulating it against free speech, almost equally, that putting the thumb firmly on the scale in favor of First Amendment, and so, and all of those cases involving, you know, flag burning, which is, you know, considered extremely offensive to people, and an argument that why should we protect that kind of speech which is so hurtful to people . Drawing on the principles of brandenburg, where you start with, as douglas says, and its concurrence, free speech is the rule, not the exception the cases that we also worked on, which was even between those period of time, or that i worked, on involved attempts to regulate video games, or other kinds of violent media, and the argument being that, for instance, there are cases arising out of some of the School Shooting cases where the plaintiffs argued that producers of movies, or video games depicting violence should be held accountable for the violence that occurred. And there were a number of state laws that would restrict the sale of violent video games, and the argument being, this kind of speech leads to violence. And encourages people to act violently. In a number of courts, we argued enormous courts that under the branded break case, you cant show that a video game or movie or book that depicts violence is intending to incite violence. One more, and our final piece of video for the brandenburg case, and it features Justice Scalia talking about free speech in our society. Sometimes annoys me that when somebody has made a breach of statements that are hateful, somebody says, sometimes the press will say, well, he was just exercising his First Amendment rights. You know, as though. First amendment rights are like muscles, the more you use them, the better. And it doesnt matter what purpose you use them for. A minute, you cant be using your First Amendment rights, and it can be abominable that you are using your First Amendment rights. I will defend your right to use it, your right to use it, but i will not defend the appropriateness of the matter in which you are using it now. Its important to understand that in the brandenburg case, for example, it was classic hate speech. It was less about violence, that about hate. All of these cases who, which are made law, through the supreme could all be characterized as hate speech. Its interesting, they go out against minority groups. They go out, not against groups like themselves, but they specialize in hate. So, hate speech is not only new, its important to understand that the Supreme Court cases that allow us, today, to have a me too movement, which allows the youngsters in the enough is enough movement. Those are the youngsters trying to get changes in gun laws. Very difficult to get here on the hill. That all of that comes out of cases that were based on hate speech. So, in our final ten minutes here, theyve got to people on opposite sides of the legal spectrum, both espousing the importance of free speech in our society. What she reaction when you heard that . I agree with both of them, and with the vast majority of Supreme Court justices in the most recent cases you listed a moment ago, susan, the cases have buy in large be unanimous or nearly nine amiss, despite the ideological diversity of the Supreme Court. In fact, they strongly disagree on the other issues. This is as it should be because a neutral defends of individual freedom to choose what to say, or hear, or not. Versus government power to make that decision, as Eleanor Norton keep stressing, is something that is to the benefit of everybody, no matter where you are, no matter what you believe. You should have your own right to make these fundamental decisions, and by definition, government is going to be accountable to majorities, so, those who have the biggest stake in the long run and free speech are members of minority groups, whether political minorities, racial minorities, other minorities. Bill is in portland, connecticut. You are on. The question for 90, because i think this was an issue that aclu has summoned involvement with recently, in this house to do with the Dakota Access pipeline protests that took place in the dakotas, where. You had protesters, native americans, and mostly, people coming from all over the country to protest this pipeline that was affecting could affect the quality of water supply there. And the protesters, themselves, were met with extreme reactions from the police and security personnel on the scene. You even had a journalist that was being arrested, you had elderly people that were being sprayed at with water, and, you know, freezing weather. Its just, you know, yet to their attack dogs on the scene. It was unbelievable for a situation, and these were, essentially, peaceful protesters. So, in a fact, they were being criminalized for doing the protesting, and i also, since then, we have heard more and more states are enacting laws that would, in a fact, criminalize this kind of protest, and so, i want to get your reaction and thoughts about that. Bill, you stated at least as well as i can. These actions clearly implicate First Amendment rights, and again, the rights exist in theory. Its not until you can get a court to enforce them that they exist in reality. Thats why its so important to have, not only organizations like inaudible but members of the community such as you who ultimately wield political power. You know, great free speech scholar in the last century said, in a long run, we, the people, it will have as much freedom of speech as we want. So, please, raise your voice to your elected officials as well. A question, just last week in the secretary of state confirmation saw code pink on capitol hill, the chairman of the Committee Said he used to be able to have people who were taken out to have their arrests nullified, but he couldnt do that anymore. My question is, where does free speech, in the congress and its operations, when theyre having public hearings, where is that intersection . I mean, i think they should have allow plenty of free speech, and not arrest them, or kick them out because of disruption. I mean, obviously, you have to have neutrally and forced rules about allowing people to speak. You know, and not being totally disrupted, in terms of allowing people to you dont have protesters shout down, or drown out the sound of the hearing. But i know that, i think it was last year, that someone was arrested and prosecuted for, i think, laughing during Jeff Sessions confirmation hearing. That seemed it was dropped, but that was certainly beyond the pale. How does the United States versus our other western democracies . When we sack a . We have a mixed record, but by my standards, as a free speech advocate positive, in terms of what the courts call political speech, speech about public officials, public affairs, we allow hate speech, which is, and other countries, it is prosecuted. Politicians and even elected officials have been prosecuting convicted for making general statements about immigrants, racial minorities, or women that are expressing Public Policy point of view, but its seen as being disparaging, and thats actually against the law. Where we are not so good, as other western European Countries is with respect to sexual expression, we have much more of a prudish stance, allowing a socalled obscenity laws to be enforced. On twitter, katie follow, p. J. Darnell asked, how much does this really affect free speech in social media . Weve addressed that, but also ask, is there a difference in britain versus verbal hate speech . Now, those types of speech are treated equally for purposes of the First Amendment. In fact, even some kinds of action or symbolic speech, or, you know, expressing yourself physically is also protected as free speech. Charles and mobile, alabama. Charles . Maam, id like to complement cspan, but also compliment Justice Douglas. He was very happy to try to grant me and my draft casing in 1972. As for the lady from the aclu, very nice lady, id like to ask her what she is doing about the impending of free speech. For all the conservative peace speakers being banned there. Thank you so much, charles. While i wish id power to control what happens at berkeley, im doing what i can, speaking on many canvases, including, hopefully, berkeley soon, and the whole reason i spent much of the last year writing my book was which is defending freedom of speech for hate speech, advocating counter speech and other measures to deal with actual problems of hatred and discrimination. But, the reason i felt it was necessary, it was, clearly, we free speech advocates have not persuaded too many College Students, and in fact, to many members of the public. So, i hope this will make the case more persuasive, and frankly students will start showing more respect on the hope for free speech. Here is a university campus, what is universally doing what the campus free speech. We are not involved in free speech, we are more focused on speech in the digital age. Although our academic focus is very much bring together people to look at issues about new ways to address free speech or freedom or speech problems. Or free speech on social media. And there are arguments about Holding Social Media platforms viable, for restricting speech or allowing speech. Either way and i think that is the new frontier for the First Amendment, as you know were looking at. Very quick final color, we are almost out of time with your question. Im wondering if brandenburg, would apply to solid gestures, such as in the 1968 olympic games, when they gave the black power sign and they were sent home by the olympic committee. Also how would that apply in whats happening with the nfl today, with athletes kneeling during the national anthem. Thank you. As katie said earlier, the Supreme Court has long recognized, the expression which intends to and is understood as conveying a specific message. It does come with in the First Amendment, so unless that expression violates the brandenburg test, which those two examples do not in my view, it could not be punished by the government. So Clarence Brandenburg, gave us the case of broadly defining First Amendment rights and free speech is in the eye states. I want to say thank you to my two guests for helping us understand the history, and the importance of this case. And as we close thanks to our partner at the constitution center, for their help on the series thank you. Thank. You thank you. Host welcome to class, everybody. Today we are going to talk about government surveillance. I want to talk about today, can intelligence agencies operate in a