The Free Speech Clause: Brandenburg v. Ohio Case Excerpts | A Primary Source Close Read w/ BRI

0:00 Hello and welcome to another Primary Source Close Read. My name is Josh and today I’m excited to be joined by Dr. Josh Dunn to discuss the case of Brandenburg v. Ohio. Hey Josh. Thanks for asking. It’s great to be with you. Yeah, it’s great having you on as well. Now, Josh has been a huge help as we have

0:22 been producing our new series of Homework Help videos. We are going to have our next one on Freedom of Speech coming out here soon. And so, in the spirit of freedom of speech, we selected the case of Brandenburg v. Ohio, a landmark free speech Supreme Court case. So we’re just going to take a look at some excerpts from that case and also just take

0:46 a look at the background and why that’s such an important case. So I always like to start this off with a general constitutional question that I think the Court tries to address in each of these cases. So in the case of Brandenburg v. Ohio,

1:07 our question is, can the government stop speech that advocates of legal activity? So before we dive into the actual details of the case, can you give us just a quick overview of what is the free speech portion of the First Amendment and why did

1:28 the Founders decide to include that portion in the First Amendment? Certainly so obviously, you have the religion clauses that start the First Amendment, and then you get to these four other rights, starting with freedom of speech. Free speech, freedom of press, right of the people to peacefully assemble, and then to petition the government for a redress of grievances.

1:50 So I think the first thing that’s important to note about those four rights is that they all build upon each other. But the foundation, I think, is freedom of speech. But they also point to self government that’s what I think is crucial about this is that free speech allows the governed to control those who govern them. So let’s say you’re upset about something and you want to exercise your right

2:12 to free speech, something that the government has done. So you’re going to go out and say that you don’t like what the government has done, but to reach more people, you’ll use the press to try to again spread your message as widely as possible, and then you’ll tell others, if you agree with me, let’s get together and talk about what ought to be done. And then you will petition the government for a redress of grievances.

2:33 So free speech is there, I think, fundamentally, because it points to self government, the people must be able to speak out against what the government is doing in order to be able to control the government. Great. Yeah, that makes sense. It’s kind of like this logical flow between the different clauses. They kind of build off each other and

2:56 combine to ensure a flourishing free society here. So there is a really landmark supreme court case before Brandenburg v. Ohio. That correct me if I’m wrong, but I think this kind of established a lot

3:17 of precedent in the 20th century that stayed up until Brandenburg v. Ohio. So we have this case around World War I, Schenck v. US. What happened in this case, and what precedent was established here concerning free speech.

3:38 So, really, the modern era of free speech jurisprudence begins in 1919, which was when Schenck versus United States was decided. And there was another major case. Abrams versus United States. But Schenck is important because it’s here that you have the first articulation of what’s known as the clear and present danger test. The controversy was that there were people who were protesting

4:02 leaflets protesting the draft, and this violated the Espionage Act, and they were punished under the Espionage Act. And so Schenck and others challenged their punishment under the Espionage Act. It goes to the Supreme Court. And the Supreme Court said that, in fact, this was not unconstitutional.

4:26 Quite famously, Justice Holmes Oliver Winter Holmes, Jr. This is where he said, you can’t yell fire in a crowded theater. So the clear and present danger test, even though it was actually supposed to protect more speech than the other alternative, which was used in that case, Abrams versus United States,

4:46 the bad tendency test, if you actually look at the clear and present danger test, it didn’t really protect a whole lot of speech. And so this phrase that comes out of Schenck, that not yelling fire in a crowded theater, you can see the dangers that almost anyone can say that any kind of speech would be yelling fire in a credit theater. It just depends on the person’s perspective.

5:08 And so the clear and present danger test said, well, the danger has to be so close and clear and proximate and substantial, then you can’t allow it to be uttered. But again, given how the court applied the test, it did not actually protect a whole lot of speech.

5:28 And then that ends up being important for Brandenburg versus Ohio. Great. Yeah, we’re going to see that the court kind of switches their approach and kind of widens protections for freedom of speech. So let’s dive into that actual case. So what happened in Brandenburg? v. Ohio.

5:50 What led up to this return? The Supreme Court. So, Clarence Brandenburg was a member of the Ku Klux Klan, and he invited some reporters to come and visit a Klan rally in Hamilton County, Ohio. And at this rally, Brandenburg and others gave many speeches calling for violence

6:14 against obviously, racial minority groups, also religious and ethnic groups, jews calling for revengeance, rather famously, they said. And he ended up being charged under Ohio’s criminal cyndiqualism act. And these acts, I think there may be five

6:36 or six that are still on the books in the United States, but these were acts that essentially forbid advocating social change and particularly using violent methods for social change. So he ended up being punished or convicted under Ohio’s criminal cynicalism act for advocating violence.

6:58 And they had called, for instance, for, I think, marches on Washington and other forms of protests around the country. And so that was really the core of it. Okay great. Yeah. And so the Court is going to decide in favor of Brandenburg. It’s actually going to be a unanimous decision.

7:19 And so there’s a procurement opinion. What’s the difference between that type of opinion and a maturity opinion? Per Curiam opinion, it means an unsigned opinion. It’s an opinion for the Court. And so essentially, there’s no single author for a per curium opinion. Now, sometimes you have per curium opinions

7:40 when the Justices agree on the outcome, but they can’t really agree on the reasoning for why they’re arriving at the particular conclusion. A famous example of that would be the Pentagon Papers case. New York Times versus United States was also a per curiam opinion. So it’s officially an unsigned opinion.

8:03 The focus will often be more on the results, and then people can some of the Justices will flesh out their own particular reasons for joining the pro curiam opinion and concurring opinions. Yeah, the pertarium opinion is relatively short compared at least to what the Supreme Court can go on about in their opinions.

8:25 Yeah. I think this excerpt here is one of the most important sections. What do you see here? What stands out to you in this excerpt? Right, so what you have here is the Brandenburg test. And the Brandenburg test officially replaces the clear and present danger test.

8:46 And this isn’t surprising. You actually go back to the 19 and you see a split developing on the Supreme Court on the clear and present danger chest major case, Dennis versus the United States, where some Justices thought the clear and present danger chest protected too much speech, some thought it protected too little. So you actually see not a whole lot of support on either side for the clear and present danger test.

9:08 But by the time you get to Brandenburg versus Ohio, the sense of the Court had moved decidedly against the clear and present danger test, although there was initially a draft opinion that would have modified the clear and present danger test to try and make it protect more speech. But ultimately, what the Court does is just replaces the clear and present danger test with this right here,

9:30 the imminent lawless action test, the Brandenburg test. So there are two prongs. There are really two parts to the Brandenburg test. One is, is the speaker trying to promote violence, advocating for violence or lawless action. And the second part is, is the speech likely to incite or produce such action or violence?

9:52 So those are the two prongs. So in order to not be protected, for the speech to not be protected, it has to satisfy both of those prongs. That means the speaker has to be trying to promote violence, and it has to be likely to produce that kind of violence. Here we see the doctrine of incorporation, a bit mentioning of the 14th Amendment.

10:14 What is incorporation? Why does that apply here? Right, so the First Amendment as it’s written, only applies to Congress. The very first word of the Bill of Rights of the First Amendment is Congress shall make no law. So for well over a century, the assumption was that the Bill of Rights

10:35 doesn’t apply to the states, it only applies to the national government. And you start getting incorporation, though, in the 20th century, particularly with the First Amendment. And what the Supreme Court said was that they were going to apply parts of the Bill of Rights to the states via the 14th Amendment.

10:55 So that’s officially the doctrine of incorporation. And there are different approaches to incorporation. Some advocated for total incorporation. The Court has never adopted that. Really what we have is known as selective incorporation, where different portions of the Bill of Rights have been applied to the states. So officially, when they’re striking down a state law under the saying that a state law or the application of the state law is

11:18 unconstitutional under the First Amendment, it means it’s also doing it via the 14th Amendment as well, because that’s how the First Amendment ends up applying to the states. Okay great. So now we get to this concurrent opinion. Justice William Douglas, like you said, he agrees with the ruling,

11:41 but he kind of gets to that conclusion via different route. So what’s important about Douglas opinion here? So I think what’s important is that this portion of it actually helps capture, I think, the essence of the Brandenburg test. What the Court was trying to get at was a Brandenburg test. So he talks about the example of falsely

12:03 yelling fire in a crowded theater, and he says, well, this of course, isn’t protected because this is a classic case where speech is brigaded with action. So this points to, I think, what is really going on with the Brandenburg test is that there’s got to be speech and then there has to be action closely following upon the speech.

12:25 So when you look at that’s, what you see with the two parts of the Brandenburg test, the person has to be trying to incite violence, and then also the violence has to be imminent. So this is why the context of speech really matters. Where it actually occurs really matters. And if you look at what happened in Brandenburg versus Ohio,

12:47 you had this KKK rally, it was out in this rural portion of Ohio. They were advocating for this violence, but it was violence in the future. So it wasn’t going to be immediate. Where if some of those people had given the exact same speeches right across the street from, let’s say, a Jewish synagogue, and then people had marched over

13:08 and attacked people at the synagogue, then that would have satisfied the Brandenburg test because that would be speech, that’s brigaded with action. But the assumption is that if you’re out there in the middle of the country somewhere rural area, and you say these kinds of things,

13:30 and someone says, yeah, I had to do this, but the nearest place where they could go actually act on that speech is 3 hours away, and then they drive to 3 hours. The assumption is that by the time they get there, they’re responsible. They aren’t caught up in the moments that they have really embodied what the speaker said and made it their own,

13:52 and so the speaker wouldn’t be responsible. But again, if it’s not 3 hours away but a ten second walk away, that’s something entirely different. Yeah, that makes sense. And that’s kind of where we see the Court. Some of these things, for lack of a better word, they start to get subjective, perhaps.

14:16 And that’s where the Court really makes decisions in gray areas. And that’s where it’s really important for us as citizens to also debate these things because they’re very gray areas and they’re always up for discussion. And as you mentioned,

14:37 they overturned the decision in Shank, and so the Court is not infallible. And that’s where it’s up to us, the citizens, to always be discussing and debating these rulings. Absolutely. So in this decision, as we mentioned, it was unanimous and there was no dissent. What does that say at the time about

15:00 the Court and Americans understanding of the concept of freedom of speech? So it obviously points to the Court wanting a more expansive understanding of freedom of speech and serious dissatisfaction with the clear and present danger test, thinking that this clear and present

15:20 danger test did not protect enough speech to satisfy the Constitution. So that’s the main thing. The Court clearly wants broader protections for freedom of speech than previously had been allowed. So I think that’s what everyone should take away from it.

15:44 Great. Yeah. What about in the modern day? How does Brandenburg apply? Sure. So we can actually think about the January 6 in the United States, where there was a big rally. President Trump held a rally in Washington, DC.

16:05 And then obviously many people stormed the capital, and there was a big debate over whether or not that constituted incitement. And I think that if you go and actually read the speech under Brandenburg, unless there’s something that we don’t know about, like code words or something like that, it’s clear that that wasn’t incitement to imminent lawless action.

16:26 And I think there have been a lot of constitutional scholars talking about this. There could have been other things that were going on that should, of course, deserve condemnation, but it did not satisfy the Brandenburg test. So that is actually an interesting example where you can look and say, all right, people are calling this incitement, but let’s go back to the Brandenburg test.

16:48 What actually has to be done to satisfy the Brandenburg test that is someone has to explicitly call for violence and the speech. The likelihood is that will actually lead to that kind of violence or criminality. So that’s what I think, that it’s helpful for people to think about that example.

17:12 But then there are others as well. There are lots of things that are said online where people say, oh, that counts as incitement. And it’s pretty clear that under Brandenburg, it’s not. That is that Brandenburg creates a very broad range of speech that you can even say that it advocates illegal activities,

17:32 but if it’s not likely imminently to lead to it, it can be protected. So the word incitement is perhaps thrown around a little bit too casually, given Brandenburg versus Ohio. So I think that’s an important part of this case is that people need to think

17:54 pretty clearly about what under the Constitution counts as incitement. Well, thank you again, Josh, for joining us on this really interesting case. Like I said, this is kind of a supplementary video to the Homework Help videos that we’re going to be releasing on free speech here soon.

18:17 And we also have many other videos on our YouTube channel for you to check out. You can join our conversation on Facebook, Twitter and Instagram for updates on programs, events, and ways to get involved. And we’d also love to hear from you. So please comment your thoughts on in the video below or get in touch with us on social media.

18:39 So Josh, thank you again for joining us. Thanks for having me.