Public service and brought to you today by your television provider. All persons having business before the Honorable Supreme Court of the United States are admonished to 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 welcome to cspans landmark cases. Tonight brandenburg versus ohio this 1969 case the warren Court Unanimously handed down one of the most expansive interpretations ever of our First Amendment guarantees to free speech and assembly. As we start, 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 for his small group of followers only, 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 brandishing guns making racist statements about jews and blacks and he was convicted and sentenced 1 to 10 years under an ohio statute that made it a crime to advocate violence as a form of social change. Obviously for the next 90 minutes were going to dig into the particulars of this case and learn about its impact on our society. But as we get started we have two pieces of media for you. Going to listen to a little bit of the oral argument in the case and youll 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 it is at the heart of what were talking about tonight. 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 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 5. How far is the nigger going to go . Yeah. Send the jews back to israel and so forth with the other profanities. Brandenburg against ohio truly recognizes that free speech means not freedom of thought for those and speech for those with whom we agree but freedom of expression for the expression we hate. I think that there are always new contexts that will be presented. But that the dissenting positions of holmes and brandyce have become the law everyone accepts. I think that is the case today. Would you consider brandenburg as one of the great milestones in the courts history . I certainly do, yes. As Justice Ginsburg said there are always new contexts. What is it about the brandenburg case that makes it seminole . Well, i think i agree with Justice Ginsburg in two fundamental respects. The brandenburg decision both is one of the strongest protective decisions of free speech and its been around for nearly 50 years and it establishes a fundamental principle that we need to allow free speech even if it is extremely offensive or advocates unlawfulness. I think the other aspect that is very important is it means we are sometimes going to have to tolerate speech that we find personally repugnant. Let me tell you a little bit more about our two guests at the table. Theyll be with us to help us understand this case. The former president of the aclu, she served in that position from 1991 through 2008 and was both the first woman and youngest person ever to hold the position. She is now a professor at new York Law School in manhattan. Shes also got a new book out which is completely relevant to our discussion tonight called hate why we should resist it with free speech not censorship. And a senior attorney at columbia universitys knight First Amendment center, a partner at a private law firm where she wrote a brief on a First Amendment case ema versus brown which held that video games were protected speech. She also clerked in the federal courts for judge rosemary barkette of the 11th circuit the u. S. Court of appeals. Welcome to you both. Great to be here. Okay. Well start with the history. This all concerns a set of laws called the criminal syndicalis laws. I told you id have a hard time with that. Many states have them. What is the history . 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. Did they all basically do the same thing . Pretty much. The language in the ohio statute criminalized any advocacy of violence directed toward bringing about social change or economic change and they also used the word terrorism. It is interesting that our cases were looking at deals with the ku klux klan but this really was a fear of communism that got this all started so can you add any more history to what the country was worried about as all these states were passing laws . Yeah. I 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 started 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 in sort of ideas from the outside to try to attack capitalist democracy. There were three key cases the Supreme Court dealt with before brandenburg one of them we talked about in our first session of landmark cases shank versus ohio which was in 1919 and that is famous for the phrase clear and present danger. Two other cases whitney versus california 1927 and dennis v. 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 dealt with one of the greatest fears of potential harm that free speech could cause namely bringing about harm to our capitalist system or to National Security more generally. And the schenck case was famous because it was in that case that the Supreme Court through an opinion through Justice Oliver wendall holmes came up with a famous test the socalled clear and present danger test that speech could only be punished if it satisfied what sounds like a very tough standard but in fact as it was actually enforced by the court in that case and the other two you mentioned allowed government to punish speech that presented neither a clear nor a present danger but allowed it political speech it disagreed with, that criticized the status quo and challenged it. What more do you want to say about these cases . One thing that is very interesting about the schenck case and Justice Holmes role in it is he was the writer of the schenck case and established this test of clear and present danger and then, which upheld the conviction of a socialist leafleters but then withindange. I think within just a year, he changed his mind and he was in dissent in another case where he dissented against communist sympathizers. He began to develop a richer doctrine of free speech protection. For many years he was in dissent, not majority. We are going to pause for a moment and revisit the First Amendment of the constitution. It says Congress Shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or bridging the freedom of speech, or of the press, or of the right of the people possibly to assemble, and to position the government for grievances. Can you give the audience background on what the founders were thinking . 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 to become inform for their ability to exercise 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, prior to that prior to the schenck case, the Supreme Court didnt strike down any laws regarding two free speech. Where the government would actually 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 First Amendment law and history to your students, what do you tell them is most important . Will i actually go back to the very first words in the constitution, we the people, in order to create a more perfect union. We the people are the governors and our democratic republic. How could we possibly carry out that, this 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. You cant separate out freedom of speech from our overall political structure. Its also very important for individual self fulfillment. Justice brandeis, one of the great dissenters that katie alluded to, was reaffirmed, they overturned whitney and embraced his dissent. He said that freedom of speech is important both as an and and as a means. The and is individual liberty. Its also a means to democratic self government. If they were having a robust discussion about what free speech meant in the 1920 1930 era, we continue to have one of those in our society today. We hope youll be in our discussion today and go on this journey as we learn about the Supreme Court case, theres a number of ways to do it. You can call us. If you live in the eastern or central time zones, 2024488900, if you live in the mountain or pacific time zones. Well put the numbers on the screen there are 90 minutes together. If you have any questions or comments to share with us. You can also be part of the conversation on twitter. Right to cspan and use the hashtag landmark cases. Weve had a incredible conversation through the series. We hope that will continue. I am not gonna say it again criminal statute. The 1990 case. The ohio criminal syndicate elysium statute. It made it illegal to advocate the duty, nessa said he, or propriety of crime sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform, voluntary assembling without any society, group, or assemblage of persons. As lawyers, what do you hear in that statute that would come against peoples actions in that time . I mean i think, one of the ways that these laws were used as to punish people who were advocating or just teaching about political doctrines that would involve industrial revolution. You know, communist revolution. That was the concern about whether or not these laws would be applied, like in the whitney, case where Charlotte Whitney was the grand ease of a Supreme Court justice from a prominent family. She had attended a convention of the communist party, she was a member, but essentially convicted for being part of the communists. She opposed the position they should use violence. She was advocating what we would call that a democratic socialism. In his great concurring opinion, though it sounded like a descent, Justice Brandon said the fear of a lawless event can never justify censorship. I thought that was a great line especially when it was a woman convicted in that case. So in higher, they advocated this doctrine. So just by attending a meeting, and literally teaching. In the dennis case it was just members of the communist party who were convicted of teaching classic works of leninism and communism taught in college courses. The other thing that we should talk about is the ku klux klan. At the 1910, 1920, the ku klux klan had 10 million members. When this is germinating, what is ku klux klan like in United States . Whats the societal standpoint to the cohen . It was in the middle of the Civil Rights Movement. At the time it was a very volatile and important social change. People really talking about and fighting against the kind of terrorism that the klan had perpetrated against black americans for nearly 100 years. So i think it was extremely important, and clearly animating this case is the background of the clan. Violence and terrorism. News media suggests that according to fbi and other authorities it had as many as 200 bombings that may have been perpetrated by members of the clan or sympathizers. So this is the background. I think its also important to remember those susan, at the same time we had a growing anti war movement, and of course the Civil Rights Movement to which kitty eluded. I think that the civil rights were concerned about the rates the majority leader theyre introducing their legislation. The coronavirus aid package. Live coverage on cspan. Article 19 back in march, we had at that point added about three trillion dollars to the national debt. We then of course ended up with a debt the size of our economy for the first time. Since World War Two which in itself is concerning. I thought we need to press the pause button. See the impact of the cares act. See how he did when the economy began to reopen, and take another look at what the country needed in july. We, senate republicans, and the administration have been consulting over the last few weeks, to come up with a realistic proposal, with what we think is an appropriate amount of Additional Debt to be added to the economy at this time. We think its about a trillion dollars, and weve allocated that in a way that we think makes the most sense for the country at this particular time. It will include liability insurance, which senator coren is going to describe here shortly. Let me be clear there isnt going to be a bill the passes the senate that doesnt have the senate approval. There have already been 3500 lawsuits filed. The country cant stand a epidemic of lawsuits on the heels of the pandemic, were already working our way through. So with that, im going to call on my colleagues who have developed the various Component Parts of our proposal. Im not sure whose second. Do we know who is next . Whose second . Senator. Number one. Were going to continue the Economic Impact payments. They were made in april and may. That means that the average family of four will get another payment of 3400 dollars. It includes just a few people that were unintentionally left out of the last one. Mostly dependents, college, and adults that or somebody else is dependent. We extend additional unemployment insurance, and remember that is on top of what the different 50 states give. And on top of the Economic Impact statement i just gave, on top of that as well. So we want to help the unemployed but we want to encourage work. Weve learned a tough lesson that when you pick people not to work, what do you expect . So this payment will be adjusted so we have additional payments so we help people, with approximately 75 of their income. Thats not me. I dont think so. It sounds just like mine. We are going to have further tax relief for businesses to encourage hiring and rehiring. We want to do that to encourage people to go back to work and help the employer in the process support people in the meantime. Support patients in Nursing Homes and also foster youth. Flexible and how federal relief funds can be used including covering revenue shortfall. Somebody doesnt want me to get on television. I know that. Why didnt you tell me that . Im embarrassed. I. I hope that we can work with democrats to come up with a bipartisan agreement. Thank you very much. We all know this is round one. We know as the leader said, arab senator grassley and others will say. This is to get the American People back to, work get them to, school keep them in school as safely as we can. We already put out a lot of money. These are extraordinary times. I know the house has a bigger figure than this. The this is something we will have to work through. Overall this is a great package. I hope that the senate will move forward with it. The most of the things in our bill have meaning when added to senator blunts appropriation bill. I will add to three. Student loans, suit choice, and childcare. In march, congress agreed that the 34 million americans with the student loan wouldnt have to pay a Monthly Payment until october the 1st. The payment would still be owed, but deferred. October forces around the corner so what we propose is if you have no income, you have no Monthly Payment. If you do have income then we will change the student loan Payment System so you never have to pay more than 10 of your income after youve detected necessities of life like mortgage and food. Second on school choice, there are about 150,000 private schools in the country, 50,000 public schools, 100,000 public. About 50 million kids in public schools, 50 million and private schools. Generally we think that every child is equally important. What we propose is about 70 billion dollars for kindergarten through the 12th grade, and 30 more billion dollars for colleges. That amount of education, so there could be an area of agreement. But senator blunt will say that we believe that every school should get som