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CLARENCE BRANDENBURG

“Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel,” Clarence Brandenburg said. The film showed twelve hooded figures, some of whom carried firearms. They gathered around a large wooden cross, which they burned. The members of the group could be heard saying, “This is what we are going to do to the niggers,” “Save America,” “Bury the niggers,” “Freedom for the whites.”

In the late 1960s, Brandenburg was a Ku Klux Klan leader in Cincinnati. He had telephoned a local television station and invited a reporter to come to a Klan rally at a farm in Hamilton County. The reporter, accompanied by a cameraperson, attended the rally and filmed it. During the rally Brandenburg made a speech, in which he said, “We’re not a revengent [sic] 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 [sic] taken.”

Brandenburg was prosecuted under an Ohio criminal syndicalism law of the same vintage as the “red flag” law used to prosecute Yetta Stromberg in California, one of the batch of similar World War I–era laws passed by states out of fear of Bolshevism. The Ohio law made it a felony to “advocate ... the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was convicted, fined, and sentenced to one to ten years in prison.

The clear-and-present-danger test invented by Justice Oliver Wendell Holmes in the Schenck case sounded as though it would substantially protect subversive or unpopular speech. It seemed like a real limitation on the power of government to restrict speech and punish dissidents and eccentrics. Unfortunately, as the Court applied the test, giving the government the benefit of the doubt in virtually every case, the protection was illusory. As noted in Chapter 2, the Court affirmed the convictions of all the dissidents, anti-war protesters (with the exception of the Jehovah’s Witnesses), and Communists from World War I into the Cold War era, finding that their subversive advocacy did indeed create a clear and present danger that the system might be overthrown. The test was toothless.

Clarence Brandenburg’s case arrived in the Supreme Court in 1969, in the waning years of the Warren Court. Having decided many cases vindicating the right of civil rights demonstrators to protest racial injustice, would the justices adhere to the clear-and-present-danger test and breathe life into it, or would they abandon it? That the Court came up with a new formulation for dealing with subversive speech at the behest of a Ku Klux Klansman is perhaps odd.

Ironically, Brandenburg’s case was argued by a Jew, Allen Brown, who was counsel for the ACLU in Cincinnati. Helping Brown on the case from the national ACLU was Eleanor Holmes Norton, an African American. (Norton has been the congressperson from the District of Columbia for many years.) At about the same time, Brown was representing a Black Panther as well as the Klansman. Brandenburg, the racist and anti-Semite, did not want a Jew as his lawyer; but he was well represented.

The Court struck down the Ohio law. It acknowledged that it had upheld the very similar California Criminal Syndicalism Act in Whitney v. California in 1927, despite the famous and eloquent opinion of Justice Louis Brandeis. But in Brandenburg the Court said Whitney had been “thoroughly discredited” by later decisions citing, oddly, Dennis, the Communist case from the McCarthy era. Dennis, of course, had affirmed the convictions of Communist party leaders on the theory that they had conspired to “advocate” overthrow of the government. In the Dennis decision, the Court acknowledged the persuasive effect of Holmes’s and Brandeis’s dissents in the World War I–era cases but did not say that it considered Whitney no longer good law. In Brandenburg, without mentioning the clear-and-present-danger test, which had been applied in the Communist case, the Court announced a new operative principle: “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” It added that “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.” Because the Ohio law purported to punish “mere advocacy,” it violated the First Amendment. The key distinction is between protected “advocacy” and unprotected “incitement.”

“Advocacy” of hateful ideas is unlawful in other countries. Speakers are not free to advocate—even in noninflammatory media like books—racial or religious hatred or discrimination, genocide, violence, or violation of law. This restriction is not surprising in countries with painful histories of ethnic and religious cruelty. In several European countries, Holocaust denial is a crime. Even in Scandinavian countries that consistently rank as the freest in the world in speech and press, advocating racial or religious hate is illegal. In Sweden, for example, the Freedom of the Press Act makes it an offense to express “contempt for a population group with allusion to its race, skin colour, national or ethnic origin, or religious faith.”

The American constitutional tolerance for advocacy of extremely bad ideas may be unique in the world. The protection for such advocacy, established by Clarence Brandenburg’s case, is one of three free-speech features that distinguish the United States from other countries. The others are near-complete freedoms from “prior restraints” and from punishment for defaming public officials. Under the Pentagon Papers case, government is not allowed to impose prior restraints—advance censorship—on speech unless it can prove that the speech will in fact cause direct, immediate, and irreparable harm to the national security or some other vital national interest. Under New York Times v. Sullivan, we all have a right to criticize government, and public officials and public figures can’t sue for libel without proving basically that a defamatory statement is a deliberate lie. These three pillars of free speech—Pentagon Papers, Sullivan, and Brandenburg—set us apart from the speech protections of other countries. Brandenburg is the weakest pillar.

The Brandenburg rule’s shakiness is due both to its origin and to fears generated by international terrorism and extremism at home. The decision itself was a brief unsigned per curiam (by the Court) opinion, not usually a sign of a major landmark. The opinion was disingenuous in saying that Whitney had been discredited by Dennis. The Court also engaged in historical revisionism when it asserted that the convictions in Dennis had been upheld only because the repressive Smith Act used to prosecute the Communists “embodied” the very advocacy-incitement principle announced in Brandenburg; that was not a fair reading of Dennis. Finally, the opinion did not actually say that the Court was abandoning the clear-and-present-danger test and replacing it with the new formulation. This can only be deduced from the concurring opinions of Justices Hugo Black and William Douglas, both First Amendment absolutists. Black flatly said that the clear-and-present-danger test “should have no place in the interpretation of the First Amendment.” Douglas elaborated on the history of the test, pointing out how easily it had been “manipulated” to suppress anti-war speech and how in Dennis the Court had “distort[ed] the ... test beyond recognition.” Douglas also stated: “The test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.” Plainly, Black and Douglas thought the Court had finally interred the clear-and-present-danger test, but the Court never squarely said so.

The Court has not retreated from Brandenburg. It continues to rely on it as binding precedent (as Justice Kennedy did in the child pornography case discussed in Chapter 8) for the point that government can’t outlaw planting bad ideas (like having sex with children). But some fear that in the perilous atmosphere of the 21st century, infested with both fiery rhetoric and deadly violence, our security is not adequately safeguarded under the Brandenburg rule. For example, in his book Freedom for the Thought That We Hate, Anthony Lewis expresses particular concern about jihadist terrorist acts that have followed exhortations in some mosques to attack Western soldiers, police, and government officials. He points to the 2005 London subway killings of 52 people by suicide bombers and to a militant’s statement that the bombings were “praiseworthy.” He also notes that radio broadcasts in Rwanda urged Hutus to kill Tutsis, and massacres followed. Lewis would not protect speech that calls for the murder of police and others.

Lewis acknowledges Justice Brandeis’s classic statement of the reasons why we should allow expression of even the most dangerous ideas. In Whitney v. California, Brandeis said:

[The framers who] won our independence [valued] ... liberty both as an end and as a means. They believed ... courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth ... [and that with free speech and assembly] discussion affords ordinarily adequate protection against the dissemination of noxious doctrine.... [They knew] that it is hazardous to discourage thought, hope, and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.

If there is time to expose through discussion the falsity or dangers of noxious speech and avert the evil by educating the people, Brandeis stated: “The remedy to be applied is more speech, not enforced silence.”

Lewis seems pessimistic about the prospects of developing good counsels to combat evil ones. He particularly objects to the “imminence” requirement of the Brandenburg rule. He says, “I think we should be able to punish speech that urges terrorist violence to an audience some of whose members are ready to act on the urging. That is imminence enough.”

I suspect that his concern is not so much about a single incendiary speech as about years of continuous harangues and indoctrination into a culture in which terrorism seems necessary, even religiously required. It may include madrassas and weapons training in Afghanistan or Pakistan, not just attendance at a mosque with a militant cleric. It includes the unshakeable conviction that America has declared war on Islam and conspires with Israel to repress Muslims. The audience is “ready to act” because its members have been primed over months, years, or a lifetime of similar teachings.

I share Lewis’s anxiety about terrorism and the susceptibility of some to be galvanized to violence, even suicidal violence, by inflammatory rhetoric. But I am not convinced that Brandenburg is too lenient a standard. Nor do I think a law can be drafted to silence truly dangerous extremist speech without suppressing a wide range of dissident speech. Brandeis himself, in Whitney, said that to justify suppression of speech, “There must be reasonable ground to believe that the danger apprehended is imminent” (my italics). He repeated that the evil must be “so imminent that it may befall before there is opportunity for full discussion.... Fear of serious injury alone cannot justify suppression of free speech and assembly.” In other words, the gravity of the feared harm alone cannot justify suppressing speech; the harm must be imminent. That means no time remains to avert the harm either by preparing to defend against it, by foiling the plot, or by countering the “evil counsels” with “good ones.” Rather than attack any particular sermon, we ought to deal with the reasons these impressionable (or hopeless) young people are in a position where they are “ready to act.”

This issue is not easy. Consider some hypothetical examples:

·If an anti-abortion preacher calls abortion doctors “baby killers” and urges his congregation in a sermon to “treat them like the murderers they are,” and a parishioner two weeks later ambushes and kills a doctor, should the preacher be criminally prosecuted?

·If a conservative radio talk show host calls the president a “socialist” who is “destroying America” and urges listeners to take their guns to the arena where the president is speaking the next day, and a listener gets into the venue and shoots the president, should the host be criminally prosecuted?

·If a Web site posts information on how to make a car bomb, and a site visitor follows the instructions and blows up the police chief ‘s car, should the Web site operator be punished? (Can posting information on a Web site be considered “incitement”?)

I think the answer to each of these questions, under Brandenburg, must be no. Either no one advocated law violation, or harm is not imminent, or the kind of harm is not reasonably foreseeable, or the speech is not likely to cause a member of the audience to act on the urgings. If you are dissatisfied with that answer, and think that Brandenburg puts us at unacceptable risk, I invite you to try your hand at drafting a law that is specific enough to give fair notice to would-be speakers that they risk prosecution and that does not criminalize constitutionally protected speech. What, exactly, would it say? How would it avoid outlawing intemperate religious or political speech? How would it deal with uncertainty whether a deranged listener will be inspired to action? Must the speaker intend that violence result? If the harm could have been avoided by alert law enforcement, does that get the speaker off the hook? Is there any reason to believe that the threat of legal punishment would actually deter extremist speech, especially speech by those willing to become martyrs? News broadcasts showing graphic pictures of the Abu Ghraib torture or of women and children killed in their village by a drone bombing seem at least as incendiary as a jihadist speech in a mosque. Should they be outlawed?

I don’t think the rule in Clarence Brandenburg’s case can be improved on in a way that both makes us safer and still allows militant, disturbing, but protected dissident speech. Aiding and abetting a crime is already illegal, as are attempting to commit a crime and initiating or participating in a conspiracy to commit a crime. We are dealing here with speech that is still another step removed from a crime—advocacy of committing a crime. If advocacy is itself punishable, whether the criminal behavior urged by the speaker actually occurs does not matter. The speaker can be arrested and charged at once. That is, if the speaker tells his audience members to go out and murder the first police officer they see, the speaker’s crime is complete, and he goes to prison even though no one has acted on his urgings. Perhaps the inflammatory rhetoric would not have been persuasive; perhaps no one would have been incited to action; perhaps law enforcement was prepared to intervene and thwart the crime. We would never know.

Exactly 50 years separated Schenck from Brandenburg. Clarence Brandenburg’s case effectively overruled Schenck, Debs, Whitney, and the other World War I–era cases, as well as Dennis in the Cold War. The case was an unqualified triumph for free speech. The speech found criminal in all those earlier cases was innocuous and posed no real danger either to the Republic or to individual lives. It was seen as unpatriotic, but it is unthinkable today that advocacy of socialism, pacifism, or Communism should have resulted in prison sentences. The rule in Clarence Brandenburg’s case—that subversive “incitement” can be punished only if it expressly advocates law violation, calls for imminent law violation, and the violation is likely to occur—is worth keeping. It took us from very little meaningful protection for dissident speech to a level of freedom that is unusual if not unique in the world. That freedom is of course risky, but I think suppression is riskier.

In 1955, in the midst of the Cold War, Professor Alexander Meiklejohn, a First Amendment scholar, testified before the Senate Judiciary Subcommittee on the Constitution. He explained that under our Constitution, the people of the United States govern themselves:

It is they—and no one else—who must pass judgment on public policies. And that means that in our popular discussions, unwise ideas must have a hearing as well as wise ones, dangerous ideas as well as safe, un-American as well as American.... The dangers to our safety arising from political suppression are always greater than the dangers to that safety arising from political freedom. Suppression is always foolish. Freedom is always wise. That is the faith, the experimental faith, by which we Americans have undertaken to live.

Meik lejohn was specifically critical of the clear-and-present-danger test, which he said, “has failed to work,” “has no dependable meaning,” and does not “protect our political freedom.” Foreshadowing the Court’s decision in Brandenburg, Meiklejohn focused on the distinction between advocacy and incitement: “To advocacy, the [First] amendment guarantees freedom, no matter what may be advocated. To incitement, on the other hand, the amendment guarantees nothing whatever.” Meiklejohn quoted Brandeis in Whitney, whose analysis is the basis of Brandenburg: “Advocacy of law-breaking ... however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immediately acted on.” Meiklejohn concluded by saying, “No belief or advocacy may be denied freedom if, in the same situation, opposing beliefs or advocacies are granted that freedom. If then, on any occasion in the United States, it is allowable to say that the Constitution is a good document, it is equally allowable, in that situation, to say that the Constitution is a bad document.... To be afraid of any idea is to be unfit for self-government.”

Meiklejohn was courageous to speak up in the mid-50s in defense of the right of Communists to advocate forcible overthrow of the government; doctrinaire Communists would never grant the same freedom to dissenters in Communist countries. That kind of courage is what makes for a First Amendment hero. Clarence Brandenburg probably would not have agreed with Meiklejohn, but his case established a vital First Amendment principle. The principle is fragile, and needs our defending whether we are worried about Communism, racial desegregation, or terrorism.