INTRODUCTION
Brandenburg v. Ohio is a landmark case that has had a significant impact on the interpretation and legal precedent of free speech and the first amendment. Brandenburg v. Ohio serves as a touchstone in the ongoing debate surrounding the limits of free speech. This historic case, heard before the Supreme
Court in 1969, emerged from the tumultuous socio-political landscape of the 1960s, where civil rights movements clashed with the individuals and systems resistant to change.
Brandenburg v. Ohio confronts a fundamental question about our constitution: what are the limits of the first amendment? There has been significant impact and precedent from the Court’s decision.
BACKGROUND AND FACTS OF THE CASE
Clarence Brandenburg, a leader of the Ku Klux Klan, found himself at the center of controversy when he participated in a public rally in rural Ohio. During this rally, Brandenburg gave a televised discriminatory speech advocating for violence against certain minorities and government officials. His racist speech became the focal point of a legal dispute that would go down in history of significant Supreme Court cases.
Clarence Brandenburg was arrested and charged under the Ohio criminal syndicalism statute (ACLU Ohio, 1969, pg. 1) that criminalized advocacy for violence as a means of political reform. The case was filed in June of 1964 and volunteer attorney Allen Brown took the case to defend Clarence Brandenburg (ACLU Ohio, 1969, pg. 1). He ended up being fined and sentenced to 1-10 years in prison. He then filed an appeal which was dismissed by the lower courts; however, the case ended up being taken on by the Supreme Court.
As the legal proceedings went on, advocates for the prosecution argued that Brandenburg’s speech posed an imminent threat to public safety, calling for government intervention to preserve order and safety. On the other hand, Brandenburg’s defense team vigorously defended his right to express even the most offensive viewpoints, arguing that his speech fell within the protections afforded by the First Amendment.
STATE OF OHIO’S ARGUMENT (PLAINTIFF)
The state of Ohio’s argument for arresting and charging Clarence Brandenburg rests primarily on the interpretation of Ohio’s Criminal Syndicalis
m statute. “The Ohio Criminal Syndicalism Act outlawed “advocating” violence as a way to change political and economic situations, and prohibited individuals from assembling for the purpose of advocating criminal syndicalism” (Brandenburg v. Ohio, 2023, Summary). Ohio authorities argued that Brandenburg’s speech during the Klan rally was a clear violation of this statute.
Specifically, the state argued that Brandenburg’s speech crossed the line from protected speech into the realm of incitement to imminent lawless action. They argued that his inflammatory rhetoric, which included calls for vengeance against African Americans and expressions of support for violence against government officials, constituted an immediate and direct threat to public safety (Parker, 2003, pg. 146).
Also, Ohio authorities made arguments about the potential consequences of Brandenburg’s speech, in regards to the volatile social and political climate of the time. They argued that his words had the potential to increase tensions, incite violence, and disrupt the peace and stability of the community. Leonard Kirschner (Ohio representative) said, “I would say that the statements such as this to 10 or 20 people can cause a one heck of a lot of crime and violence to terrorism in any community”. Listen to the short recording below which is an audio excerpt from an appeal hearing from the case for Kirschner’s full statement. (Brandenburg v. Ohio, 1969, Justia Law).
Overall, Ohio’s argument for arresting and charging Brandenburg was based on the belief that his speech went beyond the protections of the First Amendment and constituted a clear and present danger.
BRANDENBURG’S ARGUMENT (DEFENDANT)
At the center of Brandenburg’s defense was a strong argument of the protections afforded by the First Amendment of the United States Constitution. Brandenburg argued that even though his speech was inflammatory and controversial it was still shielded from government interference by the constitutional guarantee of freedom of speech. His argument highlighted the foundational principle that the Constitution should always protect individuals from censorship or punishment by the government regardless of the content of their speech.
Another key point to Brandenburg’s defense was his challenge to the argument that his speech was incitement to imminent lawless action. Brandenburg argued that his speech did not meet the standard for incitement. Even though his words may have been provocative, they did not amount to a direct call for immediate violence or pose an imminent threat to public safety. This emphasizes the importance of distinguishing between controversial ideas and speech that directly incites unlawful behavior. Listen below to an audio excerpt from Allen Brown who is Brandenburg’s representative (Brandenburg v. Ohio, 1969, Justia Law).
To summarize Allen Brown’s point in this recording, he is saying that the state of Ohio did nothing to prove that what Mr. Brandenburg said in that recording was going to cause an imminent danger or threat of any kind. His point is that it should not be so cut and dry that all that is needed as evidence is to identify Brandenburg as the one speaking in that video and then convict him. The state needs to provide a strong factual argument to limit his speech.
Furthermore, Brandenburg framed his speech as political discourse, exercising his constitutional right to engage in political expression and advocate for his beliefs, no matter how offensive they may be to others. By framing his speech as political expression, Brandenburg’s representation aimed to highlight the fact that political speech should be protected and the slippery slope that can be followed if it is infringed upon in a democratic society.
COURT DECISION
In the end, the Supreme Court delivered its verdict on June 9, 1969, overturning Brandenburg’s conviction in a unanimous 8-0 ruling. The supreme court articulated a standard that required government intervention only in cases where speech directly incites imminent lawless action. This landmark decision created a new precedent for the boundaries of protected speech, confirming the principle that even the most outrageous and even offensive speech is constitutionally protected.
Justice Douglas emphasized that the government may only restrict speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. This standard, known as the “incitement to imminent lawless action” test. (“Brandenburg v. Ohio”, 1969, 395 U.S. 444) .
The Court agreed that Brandenburg’s speech did not meet this standard for incitement. The court came to the conclusion that the mere advocacy of violence or lawlessness, even if morally wrong, did not constitute an immediate and direct threat to public safety. According to the Justices, Brandenburg’s speech did not meet this, as there was no evidence that it was likely to produce lawless action.
THE BRANDENBURG TEST
The Supreme Court’s decision resulted in the Brandenburg test. This has had a lasting impact on the interpretation of the First Amendment’s protections for freedom of speech. This test, also known as the incitement to imminent lawless action test, sets an extremely high threshold for government regulation of speech. “First the speaker must intend to incite action with the speech, second that speech must also direct “imminent lawless action”, and third likely to produce that lawless action.” (Daoust, 2019, pg. 3).
This makes it very difficult to limit one’s speech based on the rules of this test because of the subjectiveness of each point and the fact that they have to be proven beyond a shadow of a doubt to convict someone. It is extremely difficult to prove one’s intentions, agree upon what is “directing” imminent and lawless action, and what type of speech is actually likely to do so.
This standard recognizes the importance of protecting political expression, even when it is controversial or offensive, while at the same time allowing for its limitation when it poses a clear and immediate danger to public safety.
DISSENTING OPINIONS
Brandenburg v. Ohio resulted in a unanimous decision by the United States Supreme Court, there were no dissenting Justice opinions in this particular case. All justices agreed in the judgment, upholding Clarence Brandenburg’s right to free speech under the First Amendment.
Critics however, could argue that the Court’s strict incitement standard may overly protect speech that has the potential to cause violence and conflict within society.
IMPACT OF BRANDENBURG V. OHIO ON SOCIETY
The impact of Brandenburg v. Ohio on society has been profound. It has shaped the interpretation of the First Amendment’s protections for free speech and influencing legal and social discourse on issues related to expressive rights.
By establishing the Brandenburg test, which sets a high threshold for government regulation of speech advocating for unlawful conduct, the Supreme Court reaffirmed the importance of protecting political expression, even when it is controversial or offensive.
Additionally, Brandenburg v. Ohio has been invoked in numerous cases involving issues such as hate speech, political protest, and advocacy for social change. It has also made people much more brazen and sometimes reckless when it comes to political, controversial, and very important topics.
One instance where this case has parallels in contemporary society are the events that occurred on January 6th 2021. Discussions surrounding former President Donald Trump’s potential role in inciting the events of January 6th, 2021, often center on the application of the Brandenburg test and the question of whether his speech crossed the threshold of incitement to violence. Trump’s statements at a rally preceding the Capitol riot, where he urged supporters to “fight like hell” and suggested they march to the Capitol, have been applied in this context.
Critics argue that Trump’s rhetoric, including repeated claims of election fraud and calls to “stop the steal,” may have emboldened his supporters to engage in unlawful behavior. They argue that Trump’s words constitute incitement to violence under the Brandenburg test, as they were directed at inciting or producing imminent lawless action and were likely to result in such action (Azriel, 2022, para. III).
However, defenders of Trump argue that his speech was protected by the First Amendment and did not meet the rigorous standard for incitement established by the Brandenburg test. They argue that Trump’s statements, while provocative, were political expressions about the election process, rather than direct incitements to commit violence.
This debate over Trump’s role in the events of January 6th shows how complicated it can be to apply legal standards to political speech and the challenges of balancing free expression with concerns about public safety.
CRITIQUE
Despite the Court’s intention to safeguard free speech rights, some argue that the Brandenburg standard has protected speech that poses genuine threats to public safety. The case raises questions about the delicate balance between protecting individual liberties and preventing harm to society. This may present the need for certain cases to be looked back at and potentially altered or adjusted in some way.
The decision in Brandenburg v. Ohio and the standard established by the Brandenburg test most definitely poses challenges in addressing instances of speech that contribute to a climate of hostility and polarization. The result of the case overlooks the broader impact of inflammatory speech on society and democratic norms.
Additionally, the Brandenburg test has been criticized for placing emphasis on the speaker’s intent and the immediacy of the threat (Rothman-Zecher, 2020), rather than considering the broader context in which the speech occurs. A more holistic approach to evaluating the potential harms of speech, taking into account factors such as historical and societal context may be necessary to address the root causes of hate speech and extremist violence.
The First Amendment and free speech is the most important part of our constitution and protecting it is a noble cause. However, in this case there have been very plausible arguments that show that Brandenburg was inciting violence, intentionally, and that his actions would lead to lawless activities.
CONCLUSION
In conclusion, Brandenburg v. Ohio stands as a pivotal point in the protection of free speech rights in the United States. While the case established a new standard for government regulation of speech, its legacy has extended beyond the courtroom. It has shaped ongoing debates on the limits of speech in a democratic society. The principles outlined in Brandenburg v. Ohio helps to guide the conversation for balancing the protection of free expression with the need to safeguard public safety and democratic values. By upholding the fundamental right offensive to political speech this decision definitely shows that American history has valued freedom over safety and order.
REFERENCES
ACLU “Brandenburg v. Ohio 395 U.S. 444 (1969).” ACLU of Ohio, ACLU of Ohio, 9 June 1969, www.acluohio.org/en/cases/brandenburg-v-ohio-395-us-444- 1969#:~:text=In%20the%20summer%20of%201964,the%20Ohio%20Criminal%20Syndicalism%20Statute
Azriel, Joshua Ph.D. & Jeff DeWitt. “‘We Fight like Hell’: Applying Brandenburg to Trump’s Speech Surrounding the U.S. Capitol Siege.” Crimlawpractitioner, 5 Jan. 2022, www.crimlawpractitioner.org/post/we-fight-like-hell-applying-brandenburg-to-trump-s-speech-surrounding-the-u-s-capitol-siege
“Brandenburg v. Ohio (1969) – Jack Miller Center.” Jack Miller Center -, Jack Miller Center, 14 July 2023, jackmillercenter.org/cd-resources/brandenburg-v-ohio/#:~:text=The%20Ohio%20Criminal%20Syndicalism%20Act%20outlawed%20%E2%80%9Cadvocating%E2%80%9D%20violence%20as%20a,purpose%20of%20advocating%20criminal%20syndicalism
“Brandenburg v. Ohio, 395 U.S. 444 (1969).” Justia Law, supreme.justia.com/cases/federal/us/395/444/#:~:text=Ohio%2C%20395%20U.S.%20444%20(1969)&text=A%20state%20may%20not%20forbid,incite%20or%20produce%20s
Daoust, Matthew. Brandenburg v Ohio: The Brandenburg Test. National University, 2019.
Parker, Richard A. Free Speech on Trial: Communication Perspectives on Landmark Supreme Court Decisions. University of Alabama Press, 2003. uch%20action. Accessed 14 Apr. 2024.
Rothman-Zecher, Moriel. “The Upside of Brandenburg v. Ohio.” The Paris Review, 6 Jan. 2020, www.theparisreview.org/blog/2020/01/06/the-upside-of-brandenburg-v-ohio/
