And hate speech topping free speech . I have seen many such miss statements. Just to summarize it, he says that hate speech is a physical imposition because it, languishes a psychological effect imposed physically, bringing about toxic stress, fear and distrust, which are all physical in once neurosurgery. And, it can change the brain lead to threatening action. Quote, when faith is physically in your brain, then you think hate, you feel hate, your moved to act in to carry out what you physically in your narrow system think and feel. That is the summary of what he said hate speech is not free speech. I was wondering response to that. It certainly is true that expression is very powerful and hate speech, which im going to put an air quotes because it does not have a specifically legal definition, lets a hateful, insulting speech on the basis of certain demographic characteristics, certainly can have adverse potentially, have adverse psychological and even physiological impacts. But, not necessarily. It all depends on many, many factors. Including the attitude of the person at home this speech is targeted, right . So, psychological experts among others, say that we can train people to respond in a way that is empowering, they rise above the insults, they dont feel demeaned by that speech. Rather, it is the person who is uttering such hateful then 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 couldnt survive if every time somebody had psychic pain, and i dont mean to diminish it, but im 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 do you want to add for that color . I was going to say that nadine wrote a book on this but i think absolutely that hate speech is not defined and so it if we start going down the road of trying to have the government sensor it in some way, it becomes extremely complicated and cant be applied, no one can agree what constitutes a speech so it is hard to censor it. To be clear, there are areas of law where you can, the government can punish hate speech that is directed as a true threat against an individual. It is not that there is no protection against things that really put someone in fear of bodily harm. I think that is a great point. The generalization, hate speech is not free speech, is wrong. The generalization that all hate speech is protected is also wrong. Our law draws wonderful nuance distinctions such as in the brandenburg case. If hate speech intentionally insights imminent violence that is likely to happen, i can and should be punished, consistent with brandenburg. Mark isnt belleville, pennsylvania. Hi, mark. Yes, good evening. I appreciate you taking michael, i am looking for some guidance on employee speech. Specifically, for an employee at a public campus, for example, today enjoy the full range of first protections will engaging in speech on that campus . Or other limits . In that regard . The employer, including a government employer, has the prerogative of restricting and regulating speech in a way that is necessary to maintain whatever the business is. In the case of the campus and educational context. If an employee said something that undermined 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 the educational function was not used selectively to punish certain ideas, just because the university disapproved of or disagreed with the ideas. The decision in brandenburg was handed down by the court on june 9th, 1969. Next up, we are going to listen to Walter Cronkite of cbs, announcing the decision on the nightly news. In another case, the court overturned the conviction of a Ku Klux Klans men and declared ohios criminal Syndicate Law unconstitutional. The ruling said a man cannot be punished merely for what he says if the words are not designed to incite lawlessness. That is the brief report of the national news. Who said before that this was a brokering decision, that means exactly what . It means that it is coming from the court. Typically, a justice who writes a single justice, is assigned to write the majority opinion, the opinion that will govern the case. But inappropriate curium, it is not associate to any particular justice and it seems fair to infuse for that because this is a per curium decision it was written by one justice before he resigned in a financial scandal and brandon, justice brennan, then edited it and some scholars have reported that he really changed this language from the clear and convincing test to really make this new test of intentional incitement and likelihood of incitement. This was a unanimous hd zero decision. Art procurements always unanimous . No. In fact, i in recollection for this program, bush versus gore was eight per korea opinion, that was the one that ultimately reported in george w. Bush becoming president for those who dont remember and many many separate opinions that individual justices issued but the vote was as split as it could be, five to four. And yet there was a per curiam opinion. What was a story about . Its complicated, because there were some allegations that he had to close a relationship with president johnson, with whom he had been very close politically, that 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. I, quite frankly, im not clear on what it was in particular, that propelled him to resign. But he had some Financial Relationships with some entities that were themselves being investigated for improprieties. Had he been suggested as a possible earl warren replacement . Im sorry, all of this came out and he was nominated to be chief justice. There were hearings, apparently was the first time there were Senate Confirmation hearings for that kind of elevation. And it was those who were opposed to him, perhaps ideologically, raising some of these other issues. There is an excerpt from the per curiam decision, we are here confronted with a statue which, by its own words and as applied, reports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate to the describe the type of action. Such a statute falls within the condemnation of the first and the 14th amendment. s comments . This was a watershed moment. 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 of violence or unlawful action cannot be punished under the First Amendment. And, in later cases, there have been questions of what does this mean, what does the test mean . You have to intend to incite violence. It has to be imminent. The violence has to be imminent, and there is a question of what is imminent mean. And it has to be likely, to incite. Violence so you look at not just the content of the speech itself for the speech, but also the context in which it takes place. How likely would it be to trigger violence . You see in the case that comes out in 1972. The anti war protester said well take to the streets later. A court held that wasnt sufficiently imminent harm to uphold a conviction. That suggests that even if violence was to occur just a few hours after the speech that wouldnt be criminal. This is a bit of the excerpt from the excerpt from douglas. The example usually given by those who would punish speeches the case of one who falsely shout fire in a crowded theater. Speech is permitted with action. They are indeed inseparable. Apart from more instances of that kind, speeches, i think, immune from prosecution. Douglas along with black was probably the most absolutist with regards to protecting freedom of speech. Black who joined in, and douglas is concurrence created, and black with the douglas echoed, no law means no law. They tried to make this distinction between speech and conduct, but not quite because its a speech that is so closely tied or brigade it as douglas said to conduct that the only way you could prevent the dangerous conduct is by suppressing the speech. But again it has to be a emergency situation. It has to be suppression only as a last resort. If persuasion or Law Enforcement doesnt do the job. As you both have said what came out of the case is the brandenburg test. You referenced this. Intent, imminence, likelihood. Julia untoward or wrote can you discuss the intent element of the brandenburg test . What kind of teeth this modern court give . It also curious about issues challenges of them . I think there has been a debate about if you intend to incite a particular kind of violence or if you intend to give a speech. There has been a debate about that. In terms of the events in charlottesville i think you have to look at what the speech the individual protesters gave. There has been discussion about them going there and they wanted to start violence. I think the aclu has made the decision not to represent people who want to march with guns because of the concern about the eminence of violence. But you have to look at the fact that you had protests after the charlottesville rallies where people came, and there were white nationalists speaking but it was ultimately peaceful. You dont want to take these terrible events and use them as reasons to squelch any kind of speech, regardless of how offensive it. Is i think if to be careful about avoiding guilt by association. That was a play in the and double acp play where at the Supreme Court citing brandenburg refused to hold the entire organization culpable in a huge amount of damages that the lower courts had upheld because of an incendiary speech given by one of its leaders. For those who care about the naacp and its civil rights work its important that the court ruled that way because of the Lower Court Decision had beens abstained it would have bankrupted the organization and stop that from its civil rights advocacy. The reaction of the decision at the time in cincinnati, ohio law thrown up by high court ruling. But the New York Times and its reporting on the case. Court avoids law on urging violence put the story on page 13. Was it recognized as being as important as we find it today . I didnt know that about the New York Times. I saw a cometary that treated it appropriately as a important case. As lawyers it was celebrated and recognized. Were going to talk about the legacy of brandenburg. First what to talk about what happened to Clarence Brandenburg himself. We dont know a lot about the history of his life. In 1971 he was thrown out of the National Peoples party. He sued the Cincinnati Enquirer over the reporting of his participation in the organization. In 1972 he was jailed for harassing a jewish neighbor by telephone. He was a pressured individual who acted on those frustrations. We talked about a number of cases that have come along since then. We will show some of them on screen and talk about how they have continued to shape our opinion of the First Amendment. First lets take a call from george. Youre on the call. Did any imminent violence occur . From what you are saying it doesnt seem like it. In this case it certainly didnt occur. But actually, as katie said earlier, in a third of the cases that the Supreme Court decided on, the double acp cases, there was violence, threatening the boycott of the merchants discriminatory on the basis of race. There was violence, but it occurred months or weeks after the speech. So the Supreme Court said the imminent standard wasnt satisfied. But the opposite could be true if the speech intended to and was likely to actually result in violence that would satisfy the test, even if the likelihood didnt come to pass. Pat is in keyport new jersey, hi pat. Maybe you can answer this question. Ive been reading a lot about you can engage in free speech if it can incite violence, what about people talking about violence . Word as one persons rates start and the others rates began . We dont allow hecklers who disagree with the speakers message or are offended by it or angered by it. We dont allow them to in effect vetoed the free speech rights of the speaker and the speakers willing audience members because it violates their free speech rights. The Supreme Court crafted that doctrine in the civil rights demonstrations were many southern towns tried to stop martin lurking and other civil rights protesters arguing that there are so many people in the community who hate the message, who think its subversive and dangerous advocacy. They were throwing bottles of rocks at the Supreme Court. 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 by Law Enforcement. Unless lawton forsman does their job. I like to look at the other side of the coin from that. Weve been working at brandenburg in a protection of free speech case. And at the same time the court is saying that if you reach some limit, theres a limit however you express it, a standard by which speech isnt permissible. Even though the text of the First Amendment doesnt talk about limited speech under any conditions, couldnt we extend that approach to the Second Amendment. Many pro gun people are saying theres nothing in the amendment to limit them. Well we could say at some point reasonable restrictions could be imposed in a constitutional and appropriate way. Well im definitely focused on the First Amendment, i think that in the brandenburg decision, the court has always been clear that the right to free speech is an absolute. There are certain ways of engaging in speech that are part and personnel of engaging in an actual crime. For example engaging in speech about fraud, harassment, certain forms of conspiracy, in certain forms of speaking you could be punished even though the way you are committing the crime is through speech. So no its not an absolute First Amendment right. But at the same time the brandenburg test is a strict restriction on the ability of the government. This is exactly what was done by Justice Antonin Scalia in his majority opinion for the court, where he for the first time ensured that the First Amendment allows people to bear arms. He said just as the First Amendment isnt absolute and certain regulations of speech arent constitutional. We are now recognizing that the Second Amendment isnt absolute. He gave examples of gun regulations that would because two to. Shuttle the 1970s were a great temper First Amendment cases. Here are some of them. Cohen versus california 1971 where a man was protesting the draft in court. House has versus indiana 1973. A man courses a police and faces disorderly conduct. National socialist party versus cokie 1997. Flag burning struck down. Beaver versus city of st. Paul. This concerns teenagers who burn across and convicted and their local hate crime. I added one more. A trademark case with a case where a group was denied a trademark that involves a slant. What can we learn about how the courts evolved on free speech . A couple of things. One thing thats interesting about the brandenburg decision is although it involved the ku klux klan, it didnt turn on hate speech. It wasnt about the offensive miss of the speech. It was about if it was likely the cause of violence. But the rules established in brandenburg as part of the greater revolution of instead of having a balancing act of a speech where the government is interested in regulating against free speech almost regularly. Putting the thumb against the scale on First Amendment. So in all the cases involving flag burning, which is considered extremely offensive to people. An argument of why should we protect that kind of speech that so hurtful to people, drawing on the principles of brandenburg. Free speech is the rule not the exception. The cases that we worked on between those periods of time involved attempts to regulate video games or other kinds of violent media. The argument being that there were some cases arising out of some School Shooting cases like duke and columbine. People argued that producers of video games to putting violence should be held accountable for the violence that occurred. There were a number of state laws that would restrict the sale of violent video games. The argument that this kind of speech leads to violence and encourages people to act violently. In many courts it was argue that under the brandenburg case you cant show that a book or a video that depicts violence is intending to incite violence. One more and our final piece of evidence for the brandenburg case, it features Antonin Scalia and homes talking about free speech in our society. It sometimes surprises me that when someone has made out breaches statements that are hateful, when the president does that people say oh he was just exercising his right first monument rights. As though First Amendment rights are like muscles. The more you use them the better and stronger than get. And it doesnt matter what you use them for. Ill defend your right to use. It but i wont defend appropriateness of the matter in which you use it. Now i think its important to understand now that the brandenburg case for example was classic hate speech. It was less about violence tha