Rights on school grounds. Then at 9 35, New York Times versus United States which restricted the governments power over the press and broadened journalists First Amendment protections. Watch landmark cases, tonight on cspan3 and any time at cspan. Org. Wednesday night on American History tv beginning at 8 00 eastern. Congressman john lewis. The 17term democrat from georgia recently died at the age of 80 and will be buried on thursday. Before joining congress he was influential in the 1960s Civil Rights Movement. In 2019 congressman lewis gave the keynote address at a ceremony offering pioneering africanamerican tennis player arthur ashe. Watch American History tv tonight on cspan3. All persons having business before the honorable, and the Supreme Court of the United States admonished who draw near and give their attention. Landmark cases, cspans special history series produced in partnership with the National Constitution center. Exploring the human stories and constitutional dramas behind 12 historic Supreme Court decisions. Mr. Chief justice and may it please the court. Quite often in many of our most famous decisions are ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who help stick together because they believe in a rule of law. Good evening and welcome to cspans landmark casesed. Tonight, brandenburg versus ohio. This 1969 case, the war in Court Unanimously handed down one of the most expansist interpretations ever of our First Amendment guarantees to free speech and assembly. What are the very basics of this case. Clarence brandenburg was the leader of the ku klux klan in cincinnati, ohio, who held a rally of his small group of followers and invited some members of the news media to attend the rally. They filmed it and aired it on tv showing him in a hood, klan regalia in front of a burning cross. Some members of his organization were brandishing guns making racist statements about jews and blacks and he was sentenced one to ten years under an ohio starch out that made it a crime to advocate violence as a form of social change. For the next 90 minutes we will dig in to the particulars of this case and learn about its impact on soosity. As we get started we have two pieces of media for you. We will listen to a little bit of the oral argument in the case and you will hear some of the particulars of this case and please do note, as you hear it, it includes some of the offensive language used by the defendant in this case, but its at the heart of what were talking about tonight, and then we move on to Justice Ginsburg, then judge ginsburg in her 1993 confirmation hearing where she talks about the cases importance. Then there is a second portion of the film in which a group of people are walking are 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 5. How far is the nigger going to go . Yeah, send the jews back to israel. Vandenberg against ohio truly recognizes that free speech means not freedom of thought with those with whom we agree, but freedom of expression for the expression that we hate. I think that there are always new contexts that will be presented, but that the dissenting positions of holmes and brandeis have become the law that everyone accepts. I think that is the case today. Do you consider brandenburg today is one of the great milestones of the courts history . I certainly do, yes. Katie, as Justice Ginsburg said there are always new contexts. There were First Amendment cases before this and there seem to have been kuwait a number after it. What is it about the brandenburg case that makes it seminal. I agree with ginsburg that there are two fundamental respects that it is both one of the strongest protected decisions of free speech and its been around for nearly 50 years, and it establishes a fundamental principle even if it advocates unlawfulness and the other aspect it is very important because it means we are sometimes going have to tolerate speech that we find personally repugnant. Let me tell you a little bit about our two guests at the table and theyll help with us this case. Amy strassmann is with the aclu and 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, and she has a new book out completely irrelevant. Hate. Why we should resist it with free speech, not censorship katie fallow is with the knight Information Center and she wrote a brief on a First Amendment case em avera versus broiwn in u. S. Court of appeals. Thank you. This concerns a set of laws called the criminal syndication law. Syndicalism laws. . What is the history of this emand when did they start developing in this country . They were adopted starting in 1919, the world war i era as a response to the spread or the feared spread of anarchy and communism and socialism, and did they all basically do the same thing . Pretty much. The language in the ohio statute was quite typical that it criminalized any advocacy of violence that was directed toward bringing about social change or economic change and they also used the word terrorism. Its interesting that our cases that were looking at deals with the ku klux klan, but this was a fear of communism that got this all started. So can you add more history about what the country was worried about as all these states were passing laws . I do think the brandenburg case in general is interesting because it reflects a lot of social changes and cultural fears and transitions that are happening throughout the 20th century, so as nadine said, these laws were starting to be passed in many states as a result of fear of communism and 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 ideas from the outside to try to attack capitalist demeanor democrat see. There were three key cases that the Supreme Court dealt with before brandenburg. We talked about it in the first session, shank versus ohio in 1919, and that is famous for the phrase clear and present danger. Whitney versus california innen in 27 and dennis versus u. S. In 1951. Why are these cases all part of the lesson we need to learn about brandenburg. Basically what all of these cases have in common is they dont with one of the greatest fears of potential harm that free speech could cause, namely bringing about harm to our capitalist system ore to National Security more generally. The shank case was famous because it was in that case that the Supreme Court, through an opinion through Oliver Wendell holmes came up with the famous test with the socalled clear and present danger test that speech could only be punished if its satisfied with what sounds like a tough standard and it was enforced by the court in that case and the other two you mentioned, susan, allowed government to punish speech that presented neither a clear nor a present danger, and it criticized the status woe and challenged it. One thing thats interesting about the shank case and Justice Holmes was it, he was the writer of the case of clear and present danger danger which held social effort leaf letters and he changed his mind and he was a dissent in another case where he dissented of holding the conviction of communist sympathizers. He and Justice Brandeis started developing a much richer doctrine of free speech protection, but for many years in dissent and not in the majority. All of these cases are a test of the First Amendment and well pause for a moment and revisit the First Amendment to the constitution. Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press or the right of free press and grievances. Can you give us a background on what the founders were thinking and why it was in the First Amendment in the bill of rights . I think they, 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 to become informed for their ability to exercise their political power, as well, and recognized the importance of letting truth hopefully bubble up from wide open debate, but its interesting that in this case of the shank case in 1919 prior to, that the Supreme Court had not recognized had not struck down any law as violating the First Amendment and the First Amendment was the right to free speech and was considered more important just to prevent against prior restraint where the government would prevent someone from saying something in advance, but there had been no cases holding that a certain law had violated the First Amendment. When you teach it to your students what do you tell them is the most important . I actually go back to the very first words in the entire constitution, right . 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 can we possibly carry out that important responsibility unless we had 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 Political structure, but its also really important for individual selffulfillment and Justice Brandeis who was one of the great dissenters who katie alluded to and its dissenting opinion in the whitney case was reaffirmed by the Supreme Court in the brandenburg case because they overturned whitney. They embraced his dissent. He said freedom of peaspeech is important both as an ends and a means and its to choose ourselves what we will listen to, hear or not and it is also a means to democratic selfgovernment. If they were having a robust discussion about what free speech meant in 1919 and 1920 era. We continue to have one of those in our society today. So we hope youll be part of our discussion tonight and go with us on this journey as we go through the important case. You can call us if you live in the eastern time zones, 2027480900. 2027484901 and we will put the numbers up on the screen so if there are comments youd like to share with us and our guests here, please do so. You can also be a part of the conversation on twitter and use the landmarkcases. Weve had an enjoyable conversation on twitter throughout the series and we hope youll be a part of that throughout this evening. Ohio i cannot do this. The syndicalization statute of the 1990 case. Lets look at what it specifically prohibited. It made illegal advocating, quote, the duty, necessity or propriety of crime sabotage, violence or unlawful methods of terrorism as a means of accomplishing still or political reform, voluntary assembling with any society, group or assem blaj of persons to team or advocate the doctrine. As lawyers, what do you hear in that statute that would come against peoples actions at that time . I mean, i think that one of the ways these laws were used were to punish people who were advocating or even just teaching about political doctrines that would involve Industrial Revolution or communist revolution and that was the concern about whether or not these laws could be applied like in the whitney case where the Charlotte Whitney who was, i guess a grand niece of a former Supreme Court justice from a prominent family and she had arc tended a convention of the communist party, and she was a member, but she was essentially convicted for being a part of the communist on. As i understood it, she opposed the position that they would use violence. She was advocating democratic socialism and in the concurring opinion, but it really sounded like a dissent. Justice brandeis said the fear of revolution or some other violent or lawless event can never justify censorship. Men feared witches and burned women. I thought it was a great line especially when it was a woman who was convicted in that case. Voluntarily assigning, and just by attending a meeting. And literally teaching. In the dennis case it was just a matter, and it was leaders of the communist party and they were convicted for teaching what are classic works of marxism and leninism that are taught in college courses. The other things we should talk about is the ku klux klan. In the 1920s and the 1930s and the 1940s at its height the klan had 2 million members at its height. By the time we get to 1964 and 1965 when this case was germinating, what is the klan like in the United States and whats the societal attitude towards the clan . I think at the time, it was right in the middle of the Civil Rights Movement and so at the time it was an extremely volatile and important talking about and fighting against the kind of terrorism that the klan had perpetrated against black americans throughout for nearly 100 years. So, i think it was extremely important and clearly animating this case as the background of the klans violence and terrorism. News media reports suggests that although the klan had, according to the fbi and other authorities about 40,000 members in this time period, that there were as many as 200 bombings that may have been perpetrated by members of the klan or sympathizers and murders of many civil rights workers. So this is the background. I think its also important to remember, though, susan, that at the same time we had a growing Antiwar Movement plus, of course, the Civil Rights Movement to which katie alluded. I think the Supreme Court probably 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 rights of civil rights advocates. Were going to learn about clarence bradenburg who gave his name to this case, but we have callers on the line. Lets begin with jonathan from milwaukee. Hi, jonathan, youre on the air. Thank you. I would like to know if you could please explain how the Supreme Court in the bradenburg case combined judge hands direct insightful test with Justice Holmes clear and present danger test that was first articulated in shank and later developed as abrams dissent in other cases. Thank you very much. Jonathan, you sound very learned. But i will put into paraphrase for the other listeners what you clearly know which is the reason why this is such a speak protective test standard, as katie said earlier, is that it took every speech protective element in prior Supreme Court decisions 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 that it is an intentional incitement, intentional incitement of imminent violence which is likely to happen. In prior tests 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 algona, iowa. Hi, josh, watching our series from time to time. Nice to hear from you. Whats your question tonight . Thank you. Since both Justice Douglas and black were almost First Amendment absolutist, how influential were they in the final decision of this case . From what we know, one interesting thing about this decision is that it was per cure yum decision, which means it came from the court and wasnt attributed to a particular justice. And it was a unanimous decision, all eight justices that were then on the court joined it. And they wrote separately just to emphasize that whatever the majority procurium decision said that the court should not and was not in any way embracing the present clear and present danger standard. Where as Justice Holmes wanted that standard to have teeth to it and use it as a way to only be able to punish speech that, in fact, is an emergency, is an emergency situation, that the standard had been used in ways that could actually be applied very vaguely to in the dennis case just apply to people who were teaching maxism and lennonism. So black and douglas wrote separately really to emphasize that the clear and present danger standard shouldnt was being abandoned. And ive read that initially the opinion had been assigned to and was drafted by justice por i dpor portis before he retired from the court and he had language that was similar to the past clear and present danger standard and justice black said he would not sign the opinion unless that language came out. Brennan apparently redrafted it and did take out that language and came out with the much stricter test that br