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 obviou