Freedom of Speech – Skokie and Brandenburg
This month’s Landmark Supreme Court Cases and the Constitution focuses on two cases that tested the limits of the First Amendment, and that demonstrated the United States’ commitment to freedom of speech. In these cases, National Socialist Party of America v. Village of Skokie (1977), and Brandenburg v. Ohio (1968), the Supreme Court held that the First Amendment protects individuals’ rights to express their views, even if those views are considered extremely offensive by most people.
Student Handout (PDF)
American writer Noam Chomsky said “ If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all.” Individuals who express unpopular opinions are protected by the First Amendment. The First Amendment prevents majorities from silencing views with which they do not agree—even views that the majority of people find offensive to their very core. Two cases, Brandenburg v. Ohio (1969) and National Socialist Party of America v. Village of Skokie (1977), help demonstrate the meaning of the First Amendment and the American commitment to freedom of speech.
The Brandenburg v. Ohio case concerned Ku Klux Klan member Clarence Brandenburg. Brandenburg delivered a speech in Hamilton County, Ohio, where he called for “revengeance” [sic] against Jews and African Americans. He was convicted under two Ohio laws, one of which punished the advocacy of “the duty, necessity, or propriety of crime [or] violence…as a means of accomplishing industrial or political reform.” He was sentenced to prison and fined $1,000. Brandenburg argued that the Ohio law violated the First Amendment, which states in part, “Congress shall make no law…abridging the freedom of speech…” His case eventually went to the Supreme Court. The Court unanimously agreed with Brandenburg and struck down the Ohio law as unconstitutional. Interpreting the First Amendment, the Court reasoned that government cannot punish speech unless it meets two criteria: first, if it is “directed at inciting or producing imminent lawless action,” and second, if it is “likely to incite or produce such action.”
The 1978 Skokie case involved neo-Nazis who applied for a permit to march in the heavily Jewish community of Skokie, Illinois. Two weeks later, the Skokie Board of Commissioners passed an ordinance requiring marchers to post a $350,000 insurance bond. The Board later passed an ordinance banning distribution of printed materials that promote hatred of groups of people, or marching in military style uniforms. The Nazi group argued that these three laws were unconstitutional violations of the First Amendment. The case eventually went to the Supreme Court, which ruled that the Nazi Party could not be prohibited from marching peacefully because of the content of their message.
Comprehension and Critical Thinking Questions
- What were the facts of the case in Brandenburg v. Ohio (1968) and National Socialist Party v. Village of Skokie (1977)?
- Compare and contrast the arguments, laws, and outcomes in each of the cases.
- Why does the First Amendment protect even the most offensive types of speech?
- The phrase “politics is persuasion” is attributed to the ancient philosopher Aristotle. What did he mean? What is the function of free speech in a free society?