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Attorney Anna gives you the Dig... errr... ANNAlysis on the landmark 1A case
Every week we introduce you to an event in American History, policy, and media, then discuss how that historical event impacts the socio-political issues America faces today. We give you The Dig on US History and offer political commentary and opinion, as well as discussion of current news from Progressive perspectives.
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My 8th grade social studies teacher, Mr. Humble, taught me things that turned out, after doing my own research, was not always the whole story, so this week, we will examine the supreme court case Brandenburg vs Ohio.
Brandenburg is an example of a landmark case, in this case regarding the first amendments protections regarding freedom of speech. For the uninitiated, a landmark decision, according to Britannica, in the United States is one that changes the interpretation of existing law by establishing a new legal principle, overturning prior precedent, distinguishing a new principle that refines a prior principle, thus departing from prior practice without violating the rule of stare decisis; or by establishing a test or a measurable standard that can be applied by courts in future decisions.
In the United States, landmark court decisions come most frequently from the Supreme Court. Wikipedia states that the US Appellate Court may also make such decisions, particularly if the Supreme Court chooses not to review the case or if it adopts the holding of the lower court (Smith v. Collin).
So on to the specifics of Brandenburg.
Clarence Brandenburg, a Ku Klux Klan leader in Hamilton County, Ohio, contacted a reporter at a Cincinnati television station and invited him to cover a KKK rally in 1964. The TV station, accepted, and filmed the rally, showing several men in KKK hoods and robes, carrying firearms, burning a cross and then making speeches, which used slurs against people of color, Jews, and those who supported them.
Brandenburg, who apparently appointed himself the keynote speaker of the prestigious event, closed out the festivities with a speech of his own, and some of that ended up being broadcast on TV. He yammered "If our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken". It should be noted that he invented a new word there, as revengeance is totally made up. Since then, the word has indeed gained meaning among the hillbilly elites, and urban dictionary says its “revenge at least 2.54 times greater than standard revenge. So, watch out…
Anyway, he also announced plans for a march on Congress to take place on the Fourth of July. Another speech advocated for the forced expulsion of African Americans to Africa and Jewish Americans to Israel. Although there is no evidence that Marjorie Taylor Greene was conceived that evening, it should be noted she was born 10 years later, and the gestational period of people from the moons of Jupiter is not known yet. I’m just throwing that out there, do your own research.
After the TV station aired this, Brandenburg was arrested and charged with breaking a local Ohio law called the Ohio Criminal Syndicalism Act. This law made it illegal to advocate “crime, sabotage, violence or... terrorism as a means of accomplishing industrial or political reform.” It also prohibited “assembling with any society, group, or assemblage or persons formed to teach or advocate the doctrines of criminal syndicalism. According to Case Brief.com the synopsis is that Speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and it is likely to incite or produce such action.
A local court convicted Brandenburg, fined him $1000, and sentenced him to 1-10 years in prison. Brandenburg, however, argued that his actions were protected by both the 1st and 14th amendments. Now, Brandenburg hated the ACLU, but none the less, when he ran out of money to defend himself, he reached out to his nemesis for help. They said, okie dokie, smoky!
The case was appealed to the county court of appeals, which he lost, and then to the Ohio supreme court, who dismissed the case without any opinion on it. The Ohio courts used the case Dennis vs United States as precedent that the speech was not protected under the US constitution. What was Dennis vs United States, you ask? That is a 1948 case where eleven Communist Party leaders were convicted of advocating the violent overthrow of the US government. The 11 party members, who had been petitioning for socialist reforms, claimed that the Smith Act violated their First Amendment rights to freedom of speech, and that their political party presented no danger to the nation.
Quick tangent on the Dennis Case… Which took place in the infancy of the cold war… In that case the prosecution did not say the defendants had any specific plan to violently overthrow the US government, but rather that communist philosophy itself generally advocates for it. To prove this, the prosecution offered as evidence articles, pamphlets and books by authors such as Karl Marx, and argued that by adopting pro-communist texts as their political foundation, the defendants were personally guilty.
Where was the ACLU for the Dennis Case, one may ask? Well, they did quietly endorse a motion for dismissal, but the very anti-communist and pro-Smith Act ACLU did not defend the accused. Interesting.
But they sure went out of their way for Brandenburg. You’d think after the Ohio Supreme Court didn’t even look at the case, the ACLU would leave Brandenburg to his own resources, but no, they petitioned the Supreme Court of the United States.
The Court heard arguments in early 1969, with Brandenburg himself being left home and not being called on to testify. SCOTUS announced it’s decision on June 8, 1969, and, get this, the so called liberal court sided with Brandenburg… unanimously. Yes, even civil rights leader and first ever black justice Thurgood Marshall sided with Brandenburg. They argued the Ohio Criminal Syndicalism Act violated his right to free speech, by a score of 9-nothing.
This established what is known as the Brandenburg Test, aka the imminent lawless action test, which strengthened the clear and present danger doctrine and overturned the bad tendency test. The three distinct elements of this test are the intent to speak, imminence of lawlessness, and likelihood of lawlessness. In other words, speech can be banned if it is “directing and also likely to produce or incite lawless actions.” So, to sum up, even unpopular and offensive speech was protected by Brandenburg, and interestingly is also used to protect creators of violent video games, which many falsely accuse of being a key factor in gun violence.