First Amendment Friday’s 4 – Brandenburg V Ohio – Right To Assemble

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Happy Friday and welcome to the 4th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. So far we have been working through cases that have had to do with seditious speech. If you are interested in the previous installments in this series you can find them at the following links:  

First Amendment Friday 1 – Abrams v US

First Amendment Friday 2 – Gitlow v New York

First Amendment Friday 3 – Whitney v California

Cross Posted at Square State

Up to now we have looked at cases that were decided in the early part of the twentieth century. They were affected by World War I, the Russian Revolution and the rise of Trade Unions. These cases were often decided on a test created by Justice Holmes in the Schenk case, which allowed speech to be limited if there was “a clear and present danger of substantial evil”. Many of those, including the Dog, who read these decisions were appalled at the idea that your right to speak out about public policy could, in some circumstances (mostly when advocating the overthrow of the Government by any means other than political ones) be criminalized.

This week’s case is on that directly overturns the entire premise of Whitney V California, where Ms. Whitney was convicted not for actions but merely for being a member of a group which advocated the overthrow of the Government by revolution.

Brandenburg V Ohio

The Facts:

Mr. Brandenburg was a member of the Ku Klux Klan in Ohio. In the mid-1960’s he invited a local TV reporter and cameraman out to a farm where there was going to be a meeting of Klan organizers.

At this meeting he was filmed, in a hood, burning a large wooden cross with 11 other men in robes and hoods. He also gave a short speech, which was also filmed, below is the text of the speech in full:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. We’re not a revengent organization, but 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.

We are marching on Congress July the Fourth, four hundred thousand strong. From there, we are dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into Mississippi. Thank you.

In the film members of the Klan gathering are seen with weapons and can be overheard to make racist statements against African Americans and Jewish Americans.

Parts of this rally were broadcast on local and national network news programs.

Ohio had a Criminal Syndicalism Statue based on the California Act that was used to in Whitney V California. It was passed in 1919.

Mr. Brandenburg was convicted under this statute. He appealed on First Amendment and (free speech) and Fourteenth Amendment (due process) grounds. The appellate State Court and the Ohio Supreme Court upheld the conviction, without opinion. Meaning they just ruled that it was a constitutional without justifying it.

The Majority Opinion:

The Supreme Court overturned this verdict. While the Criminal Syndicalism Statute was based on law that had been held constitutional by an earlier Court, things had changed, since then. The old test of “clear and present danger” had been modified by a case called Noto V United states.

While it kept the “clear and present danger” test it added the following:

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

Herdon V Lowery found that:

A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.  

Using this test the Court found that the Ohio law failed to be Constitutional due to its lack of distinction between talk and action.

What does this all mean? Basically the Court was saying a limit on speech or assembly could not be Constitutional unless it made a clear distinction between  mere advocacy and incitement to immediate lawless action. So, in practice you can say something to the effect of “The people should take up arms and overthrow the Federal Government” at a rally and be perfectly safe under the Constitution. However if you say something like “We, the people at this rally, should get our guns, right now, and take over the Federal building by force! Everyone do it now!” you could run afoul of laws designed to prevent exactly that kind of action.

The Concurrences:

There were two concurrences of this opinion, one by Justice Black, which basically agrees with the concurrence by Justice Douglas.

Justice Douglas, while agreeing with the Majority took the point of finishing off the “clear and present danger” test even further.  

He a couple of points; he asserts that beliefs no matter what those beliefs are should always be preserved from prosecution by the First Amendment. This is because beliefs whether expressed or not are internal to a person. If we do not protect the right for people to believe as they like on any issue, then the First Amendment protection of free speech has no real meaning.

This extends as well to actions. He notes the case United States V O’Brien where Mr. O’Brien was convicted of burning a draft card as a protest to the Vietnams war, should have been protected as free speech action. Mr. O’Brien’s conviction was upheld on the premise that he destroyed a document that could be used by the government to further its aims.

However Justice Douglas points out he was not charged with failing to be able to provide that document when it was requested by a federal agent in the performance of their duties, but instead of burning the card itself. Justice Douglas holds that the act of the burning should be a protected form of speech. (This is the same as being protected if you burn a US Flag on the steps of the Congress).

He concludes with the following:

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall, 357 U.S. 513, 536-537 (DOUGLAS, J., concurring). They are indeed inseparable, and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas, as in Yates, and advocacy of political action, as in Scales. The quality of advocacy turns on the depth of the conviction, and government has no power to invade that sanctuary of belief and conscience.

As you can see this is much more like what we understand our First Amendment Protections to mean. You are allowed to be an asshole, say the most vile and unfriendly things, even call for, in a general way, acts that would be illegal. This is your right as citizen.

This is the maturing of the ideas expressed in their dissents by Justices Brandies and Holmes that the remedy for bad (socially unacceptable speech) is not limitation but more speech to counter it. It is hard to accept sometimes when you are faced with some asshat who talks of secession or racist thoughts that they should be allowed to do so, but the thing is any Constitutional protection you would take from them is one you are also giving up.

The Dog is of the opinion that you should not give up Constitutional protections without a fight, no matter how compelling the reason may seem. As the first four of this series shows, if you do it can be a very long time before you get them back. It could have just as easily turned out that we did not get this protection on our right to associate with whomever we choose back, so just because it turned out well in this circumstance is not a reason to assume it will in any other case.  

This puts a little more clarity on why the words of Rep. Bachman and others are not actually illegal. Gov. Perry can talk all day about secession it is only when he tries to put it into action in some form other than political action that it becomes more than an embarrassment.

Now that we are seeing cases which are in a regime on speech which is more familiar to us, what do you think of these decisions? Did the Majority go far enough? Did Justice Douglas?

The floor is yours.

As always great thanks to the Cornell Law School Legal Information Institute for the access to these decisions they provide. You can find today’s case at this link.


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  1. get permits to make fools of themselves on Martin Luther King’s birthday.  

  2. A basic reading of Brandenburg leads to the conclusion that abstract advocacy is always OK.

    A call to action, on the other hand, is to be judged by whether it is likely to incite imminent lawlessness.

    If I get up in front of a group of Quakers and urge them to take up arms and tear down the government, my speech is almost certainly protected.

    If I get up in front of an armed group of frothing citizens and urge the same thing, probably I can be charged.

    Brandenburg protects mere expression of ideas.  It either protects or doesn’t protect calls to action, depending on context.

  3. of speech v. operationalization

    Pennsylvania has a statute called “making terroristic threats” (passed long before 9/11). In essence, the statue forbids a person from threatening to kill another person. It is a third degree misdemeanor (the lowest grade misdemeanor). The law only applies when the victim legitimately believes his or her life is in immediate danger. Tricky.

    In almost every case I ever saw (and it was a lot) was that a person was usually charged with simple assault, making terroristic threats, and harassment. Those three charges are listed in descending order of severity. Typically, a plea deal drops some of the charged. The law has probably never been challenged since most people are happy to “only” be convicted of the threats charge.

    And an unrelated thought:

    Freedom of assembly is an under appreciated freedom. Not only does it allow us to hold political rallies and protests, it allows for all forms of mass communication, from church services to labor rallies. Indeed, without this freedom, forums like this would not be protected.

    Freedom of speech is meaningless without an audience.    

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