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Brandenburg v. Ohio 1969

Brandenburg v. Ohio 1969

Appellant: Clarence Brandenburg

Appellee: State of Ohio

Appellant's Claim: That convicting him for threatening the government at a Ku Klux Klan rally violated his freedom of speech.

Chief Lawyer for Appellant: Allen Brown

Chief Lawyer for Appellee: Leonard Kirschner

Justices for the Court: Hugo Lafayette Black, William J. Brennan, Jr., William O. Douglas, Abe Fortas, John M. Harlan II, Thurgood Marshall, Potter Stewart, Earl Warren, Byron R. White (unsigned decision)

Justices Dissenting: None

Date of Decision: June 9, 1969

Decision: The Supreme Court reversed Brandenburg's conviction as unconstitutional.

Significance: After Brandenburg, the First Amendment protects speech unless it encourages immediate violence or other unlawful action.


Threats against the government present a special problem for the freedom of speech. The First Amendment of the U.S. Constitution says, "Congress shall make no law . . . abridging [limiting] the freedom of speech." State and local governments must obey the freedom of speech under the Due Process Clause of the Fourteenth Amendment. The freedom of speech prevents the government from punishing someone for speaking his mind.

Governments naturally want to prevent revolutions or other violence against them. In the United States, however, the freedom of speech protects the right to criticize the government and to speak in favor of changing it. The question becomes whether this freedom allows people to speak in favor of violence against the government. That was the question in Brandenburg v. Ohio.


Revenge!

In 1919, Ohio passed a law called a criminal syndicalism statute. The law made it a crime to support sabotage, violence, or other unlawful ways to change the government. It also made it a crime to assemble a group of people to teach or support such conduct. The law originally was designed to fight communists, who supported violent revolution against American governments.

By the 1960s, communism was not a big threat in America. The civil rights movement, however, became strong. The civil rights movement was an effort by African Americans to achieve equal rights in America. The government helped the civil rights movement by passing laws to give equal rights to all people in America. Some white Americans who did not like the civil rights movement formed groups to oppose it. One of those groups was the Ku Klux Klan (KKK). Its members believed that white Protestant people were better than black people and members of other religions.

Clarence Brandenburg was the leader of a KKK group in Hamilton County, Ohio. One day he organized a KKK rally and asked a Cincinnati news reporter to cover the event. The reporter attended the rally with a cameraman, who filmed the event.

The rally included Brandenburg and eleven other members, all dressed in KKK uniforms and some carrying firearms. The Klansmen burned a cross. Some made hateful comments about African Americans and Jews. In a speech, Brandenburg said the KKK might have to seek revenge if the president, Congress, and the Supreme Court continued to suppress white Americans. Brandenburg also said he believed blacks should be returned to Africa and Jews to Israel.

The television reporter broadcast the rally on the local news. Afterward Ohio charged Brandenburg with violating the criminal syndicalism statute by supporting violence against the government. Brandenburg was convicted and fined $1,000 and sentenced to one to ten years in prison. He appealed, saying the state of Ohio violated his freedom of speech by convicting him for speaking against the government. The court of appeals rejected this argument and affirmed (approved) Brandenburg's conviction. Brandenburg appealed again, but the Supreme Court of Ohio rejected the case. As his last resort, Brandenburg appealed to the U.S. Supreme Court.


Justice For All

With a unanimous decision, the Supreme Court ruled in favor of the man who had threatened it. The Court said Brandenburg's comments at the KKK rally were protected by the freedom of speech. His conviction, then, was unconstitutional.

The Court made its decision by distinguishing between two kinds of violent speech. One kind incites, or encourages, immediate violence against the government. For example, Brandenburg would have encouraged immediate violence if he had said, "let's go right now and burn down the building where they're passing laws to help the civil rights movement." The Supreme Court said speech that encourages immediate violence and is likely to succeed is not protected by the freedom of speech. It is too dangerous.

Brandenburg, however, did not encourage immediate violence. He said if the government continued to support the civil rights movement, the KKK might have to seek revenge in the future. The Supreme Court ruled that the First Amendment protects such speech. The spirit of the Court's decision was that such speech can be valuable because it gets society talking about what is good and bad about the government. It allows people to explore what is working, and what needs to be changed. Although the Supreme Court did not agree with Brandenburg's opinions, it said the freedom of speech protected his right to share those opinions with others.


Impact

Brandenburg made it harder for the government to convict people for speaking in favor of violence. This certainly was a victory for the freedom of speech. Some people, however, believe it also protects speech that has no value in society.

This became the focus of a sad case in the 1990s. In 1993, Lawrence Horn hired James Perry to kill Horn's eight-year-old, brain-damaged son. Perry killed the boy and the boy's mother and nurse by following the instructions in a book called Hit Man. Families of the victims sued Paladin Enterprises, the company that published the book. Paladin admitted that it published the book for murderers to use to learn how to kill people. Groups across the country, however, fought to protect Paladin's right to publish such books. The case raised serious questions about what kinds of speech the First Amendment protects.

CROSS BURNING CASE

T he Supreme Court also protected hateful, racist speech in R.A.V. v. St. Paul (1992). In that case, an African American couple with five children moved into a mostly white neighborhood in St. Paul, Minnesota. Several months later they awoke one night to find a burning cross in their front yard. Police arrested four white teenagers, one of whom lived across the street from the black family. Police charged one of the teenagers with violating a local law that made it a crime to display racial hate symbols in public. The U.S. Supreme Court, however, determined that the law violated the First Amendment freedom of speech. The Court said government cannot forbid categories of speech just because it does not like the speaker's message.


Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis: Lerner Publications, Inc., 1990.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

"Hate Speech." Issues and Controversies on File. June 4, 1999.

Hentoff, Nat. "Can a Book Be Liable for Murder?" Washington Post, May 8, 1999.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

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