tv Landmark Cases Brandenburg v. Ohio CSPAN February 12, 2021 12:47am-2:19am EST
supreme court case which gave first amendment protection to speakers who urge listeners to use force in certain circumstances. a 2018 program from c-span's landmark case stories this is one hour and 30 minutes. all persons having business before the supreme court acknowledge and give their attention.
who helped stick together because they believe in their rule of law. good evening and welcome to the landmark cases. brandenburg versus ohio 1969 case as the warren court unanimously handed down one of the most expansive ever of the first amendment guarantees the free speech and assembly. as we start, what are the very basics of the case? >> the leader of the ku klux klan in cincinnati ohio who held a rally for his small group of followers only invited to some members of the news media to attend the rally. they filmed it and aired it on tvn showing him in a hood and a
burning class. they were brandishing guns making racist statements of how and he was convicted and sentenced one to ten years under an ohio statute that made it a crime to advocate violence as a form of social change. we are going to dig into the particulars of this case and learn about its impact on our society but as we get started, we have two pieces of media for you. going to listen to a little bit of the oral argument in the case and you will hear some of the particulars of this case. pleaseit do note as you hear it, it includes some of the offensive language used by the defendant in this case at the heart of what we are talking about tonight and then we turn to justice ginsburg and her 1993 confirmation hearing where she talks about the case.
>> a second portion of the film in which a group of people are walking or marching around a burning cross, hooded, armed, shouting profanities and which there is a question whether or not thent defendant himself says the words as attributed to him in the transcript on page five. he truly recognizes free speech means not freedom of thought but those with whom we agree and freedom of expression. i think that there are always new contexts that will be presented but the defending
positions have become the law that everyone accepts. i think that is the case today. >> would you consider it one of the great milestones in the court district? >> i certainly do, yes. >> justice ginsberg said there are always new contexts and there seem to have been quite a number after it. what is it that makes it criminal? >> i agree with justice ginsburg about the two fundamental respects that the decision both gives one of the strongest protective decisions of free speech and it's been around for nearly 50 yearsd and it establishes a fundamental principle that we need to allow free speech even if it is extremely offensive or advocates unlawfulness and i think that the other aspect is that it's important because it means we are sometimes going to have to
tolerate these that we find repugnant. >> let me tell you about our two guests atle the table to help us understand the case. the former president serving from 1991 through 2008 and was both the first woman and youngest to ever hold the position. now professor at new york law school and has a new book out which is relevant to the discussion tonight called hate why we should resist it with free speech and not censorship. the senior attorney at columbia university's first amendment center former partner at a law firm where she wrote a briefing on a first amendment case which held that videogames were protected speech and also clerked in the federal courts for the 11th circuit u.s. court of appeals. welcome to both of you. we are going to start with
history. this concerns a set of laws called the criminal syndication law and in fact many states have them. when did they start developing? >> they were adopted starting in the world war i era as a response to the spread of anarchy and communism and socialism. >> did they all basically do the same thing? >> the language in the statute was quite typical it criminalized any advocacy of violence that was directed to bringing about social change or economic change and they used the word terrorism. >> it's interesting that the cases we are looking at dealing with the ku klux klan but the fear of communism is what got this started so can you add any
more history to what the country was worried about as they were passing the laws? >> it's interesting because it reflects a lot of social changes and transitions happening throughout the 20th century so as nadine said, they started to be passed in many states as a result of the fear of communism and the international workers of the world and concerns about a threat to capitalism from the communist sympathizers and i think there was some sentiment about fear of immigrants bringing in ideas from the outside to try to attack the capitalist democracy. >> there were three cases the supreme court dealt with before. one of them we talked about in the first session of landmark cases which was in 1919. that's famous for the phrase
clear and present danger. two other cases why are these all part of the lesson we need to learn? >> what all of these cases have hein common is they dealt with e of the greatest fears of potential harm that free speech could cause, namely bringing about harm to the capitalist system were national security more generally. it was in that case that the supreme court through an opinion through justice oliver wendell holmes to a clear and present danger could only be punished if they satisfied what sounded like a tough standard but in fact as it was enforced by the court in that case and the other two you mentioned, to allow the government to punish speech that
presented neither a clear or present danger but allowed it to the political speech that it disagreed with that criticized the status quo and challenged it. >> one thing that's interesting about the case is that he was the writer and established this clear and present danger and which upheld the conviction of a socialist but then within a year he changed his mind and he dissented from the conviction of the communist sympathizers and started developing a much richer doctrine of the free speech protection but for many years in dissent, not the majority. >> all of the cases are tests of the first amendment and we are going to pause and revisit.
it says congress shall make no law respecting or prohibiting the free exercise thereof or abridging the freedom of speech or the press or the right of the people to assemble and petition the government for the redress. can either of you give the audience a little bit of background on what the founders were thinking? >> they considered it as fundamental to the american system of democracy and ability to become informed with their ability to exercise their political power as well and recognized the importance of letting truth hopefully bubble up from the wide open debate. but it's interesting that in this case in 1919, prior to
that,, the court had not recognized or struck down any law violating the amendment and it was the right to free speech considered more important against where the government would actually prevent someone from saying something in advance. but there had been no cases holding that a certain law violated the amendment. a. >> when you teach firstamendment do you tell them? >> i go back to the very first words in the entire constitution. we the people in order to create a more perfect union and so forth. we the people are the governors and the democratic republic. how could we possibly carry out that an important responsibility unless we have the robust freedom of speech including to criticize government officials and policies and each other.
so you can to separate out freedom of speech from our overall democratic political structure but it's also important for individual self-fulfillment. justice brandeis who was one of the great dissenters essentially the dissenting opinion reaffirmed by the supreme court because they overturnedca and embraced, he said freedom of speech is important both as the end and the means. the end to itself is individual liberty to choose ourselves what wet will say here but it's alsa means to democratic self-government. >> we are having a robust discussion of what free speech meant. we continue to have one of those in our society today so we hope you will be part of the discussion and go with us on
this journey as we learn about this case there's a number of ways you can do it. you can call in the east or central time zone (202)748-8900. if you live in the mountain or pacific time zones, (202)748-8901, and we will put those numbers on the screen throughout the 90 minutes together so with questions or comments come to mind you would like to share with us and our guests, please do so you can also be part of the conversation on twitter. ..
>> voluntary assembling with any society a group or person formed to teach or advocate the doctrine. as lawyers, what do you hear that statute that would come against people's actions? >> one of the ways that the's laws were used to punish people who were advocating or even in teaching about political doctrines that would involve industrial revolution or communist revolution. and that was the concern whether or not these laws could be applied like in the whitneyne case of charlotte whitney who was a grandniece
of the former supreme court justice from a prominent family and had attended a convention of the communist party. she was a member but essentially convicted. >> as i understood it she oppose the position they should use violence she was advocatingoc democratic socialism. it was called a concurring opinion but it sounded like a dissent justice brandeis said the fear revolution event can never justify censorship. i thought that was such a great line especially a woman convicted in that w case. >> with the assemblage of person with that doctrine so just by attending a meeting
and literally teaching and the dems case it was just leaders of the communistst party and they were convicted for teaching what are classic works of marxism and leninism that are taught in many college courses. >> we need to talk about the ku klux klan in the 19 twenties and thirties at its height had 2 million members. by the time we get to 1964 when the case is germinating what is it like in the united states once the attitude towards the clan? >> at that time it was right in the middle of the civil rights movement and so at the time it was an extremely volatile and important social to people were talking about and fighting against the
terrorism the clan had perpetrated against black americans for nearly 100 years. it was extremely important and clearly animating this case as the background of the clan violence and terrorism. >> news media reports although according to the fbi and other 40000 members that there are as many as 200 m bombings that may have been perpetrated by members of the planned or sympathizers or any civil rights workers. and it's also important to remember at the same time we had a growing antiwar movement and the supreme court probably wasbo concerned about the demonstrators and protesters advocating those changes for
and against civil rights. that decision has protected the right of civil rightsth advocates. >> we will learn about brandenburg we have colors on the line must begin with jonathan from milwaukee. you are on the air. >>caller: please explain how the supply the supreme court in the brandenburg case combined the direct incitement test meeting with justice holmes clear and present danger test first articulated and later developed as dissent in other cases. thank you very much. >> jonathan, you sound very learned but i will paraphrase what you clearly now. the reason why this is such a standard is that it check every speech protected element
empire supreme court decisions that one alone is not enough. you have to satisfy all of the standards as a prerequisite for suppressing speech. you cannot do so unless you can show it isin and incitement and intentional incitement of imminent violence which is likely to happen. empire test the supreme court has saidd one of those elements are too was enough but it's very hard to satisfy all three appropriately. >> algona iowa go ahead it's nice to hear from you you call time to time. >>caller: justice douglas and black were first amendment absolutist. how influential were they in the final decision of this case? >> from what we know one interesting thing about this decision means it came from the court and not that you did
to particular justice it was unanimous from all justices then on the court and they wrote separately just to emphasize whatever the majority decision said that the court should not and would not in any way embracing the clear and present danger standard because whereas justice holmes want to thes standard to use a piece in only piece on - - punish speech that is an emergency situation. that the standard has been used in ways that it could actually be applied very vaguely to people who were teaching marxism and leninism. black and douglas wrote separately that the clear and present danger standard was being abandoned.
>> i read it was signed and drafted before he retired from thee court. and he had language that was similar to the clear and present danger standard and the justiceju said he would not sign the opinion unless the language came out. brennan apparently redrafted it and did take out thehe languageut think about the much stricter test that brandenburg included. >> jim from california. >>caller: regarding free speech today, so much activity is on social media. these are private companies. yet it seems to me if you
restrict speech on them you are restricting a great deal of speech that is going on. and with the facebook situation that is recently. so what thoughts do you have on how we incorporate or make sure free speech is carried through to these entities, whenever they are? i don't know how you describe them. >> that's a great question first of all the supreme court unanimously decided a casell that government may not deny access to social media to an individual it was a convicted sex offender who had served his time precisely for the reasons that you state that the supreme court uses very strong language about what incredibly important public platform this was especially for getting news and information sharing. so what about the censorship by social media themselves?
many people are surprised to learn the first amendment does not directly apply to private sector entities but for all practical purposess one commentator said exercised more power than all of the governments and all of the countries around the world throughout history. think that is a very serious concern. >> laguna beach you are on the air. >>caller: thank you so much. first of all thank you for this wonderful series. it has been fantastic to watch. talk about the free speech movement in the 19 sixties and how it has evolved now to campuseske with those opinions that may be offensive to some of theme students. how does brandenburg apply to those situations at publicic universities? >> i did go to berkeley but a little bit later but the
current controversies about free speech on campus if it is a public university, they do have to comply with basic first amendment requirement that alarming speech or denying speech based on viewpoints and not allow or allow speech unless it will in fact incite imminent lawlessness. obviously that has created a lot of thorny problems. actually there's a lot of free speech happening on campus and certainly when i was atwh berkeley come it's more of a fact of life and everyday life that i think is good including the counter speech against people meaning speak by people
who are disturbed by hateful speech. and those students rights to speak up. >> boston. >>caller: thank you for taking my question. reading about a college student recently who made a posting on socialud media that has some racist connotations even though it wasn't intended to be so and kansas state university expelled the student. and in a separate case i read about a couple of high school students that express themselves in a way that seemed racist and the public high school expelled them. how is that possible? >> i hate to shock you but a lot of government officials on campuses do think it violates the constitution.
the supreme court never really enforced a first amendment at all until well into the 20th century. no provision the constitution issi self enforcing. it takes advocates such as the aclu and clients who come to them to actually translate the theoretical freedoms of the first amendment into the reality. >> the next cases tinker versus des moines which is about student free speech and so much of the discussion on campus at high school and college campuses today.si let's learn more about brandenburg who gave his name to this important case. forty years old at the time and went to the court. 1958 laid off from the local general electric plant where he worked and threatened to company.
he went back to his television repair business him in 1959 declared bankruptcy. in the summer of 1963 attempted to take over the local white supremacy group national association for the advancement of white people and that was the context for him in the event of which he was arrested. here is the timeline of his case. june 28, 1964, he organized and spoke at a kkk rally outside of cincinnati you - - cincinnati on a private farm. it wasn't just that group of people. he invited local media and the local station came to film the rally. august 6, 1964, arrested at the tv repair shop and december of 66 he was
convicted under thend 1918 ohio law. he appealed that to the supreme court and that was rejected in january 6, 1967 brandenburg sentence ten years in prison and a $1000 c fine. he could've gotten even higher fines but the court was lenient looking at that. what's important about that timeline? >> one thing i will say to paraphrase justice frankfurter that many safeguards of liberty has been forged by people who are not very nice. and that's one of the things we're talking about is what the membership of the kkk was at the time even brandenburg's lawyer referred to his client
and his cronies at this rally it was silly and absurd. they didn't make a big impact. wasn't widely attended but yet still had the historical context in the background. >> and the fact the historic statute was about to be enacted and signed into law a few days after the speech. >> was it significant it was on a private property? >> very much so because it would be very difficult to argue anybody could feel intimidated or threatened because they didn't know it was going on.
it was a rally among supporters like a membership meeting of people who all share the same view to exercise their freedom of association as well as their freedom of speech. >> some people brought guns was that important? >> the supreme court did not noteno that. under the statute, it didn't really make a difference because the statute criminalizes just to convey certain ideas. so when the case was appointed to the supreme court a new lawyer came in he was jewish and missed on - - and many of brandenburg's comments were anti-semitic-s. what we need to know about brown? >> i looked him up and he was at the aclu of cincinnati for many years. a committed civil rights or civil liberties lawyer. serving in world war iild and seem like and an extremely
smart and audible man. he agreed to take the case even though brandenburg himself was not thrilled to be represented by a jewish attorney but he felt committed to the cause of free speechau . >> i had the opportunity to meet him in cincinnati in the early nineties. there were some incidents of censorship taking placecein. we were going to be in a panel together. his father whom he actually defended free speech for the most unpopular speakers across the spectrum is the only person who's office he saw both a kkk leader and a black panther leader. this is part of the history of the organization. now we have a piece the video that's the fella not - - a familiar face to has served
representing the district of columbia as a delegate. butt back then she was and aclu national lawyer. >> the aclu had only two national lawyers and i was one of them. so that if there was a case going to the supreme court affording civil liberties issue like free speech or print that had to come to the national office. i was on the brief in the brandenburg case. the sixties and seventies was a good moment in time for the court to look at what advocacy means and howow powerful it could be to being change. positive change to our country.
i can tell you since i was in the civil rights movement, i thought all of my colleagues were also in the student nonviolent coordinating committee who say go get them eleanor because we need all the speech we can get. instead some said what is eleanor doing? now they will tell you we understand what he was doing. but there was mixed feelings in the civil rights movement even. and the failure to make the connection between the neutrality of speech and in a democratic society is very hard unless the governor makes a decision. do you want to govern on - - government to make a decision or do you go for a free-for-all? and those who would not defend me even though i have to defend them.
>> absolutely i have read and interview that she did at the time of the case and interestingly enough she said she was verysa aware even though she was defending the free speech rights in the context of a racist, she was convinced the main beneficiaries would be black militants and other radicals whose views were seen as dangerous and threatening and subversive by many government officials all over althe country. and i do think those were majorr beneficiaries. > yes. to echo what nadine said, look at brandenburg the time the decision was applied after the 69 decision was in the case of an antiwar protesterar and then
later in the early eighties with the naacp versus claiborne hardware case where using brandenburg the court overturned the conviction of a civil-rights demonstrator who threatened violence against people who are not adhering to the boycott. so it was applied to people on all sides of each spectrum. >> maryland your on the air. >>caller: i want to talk about the doctrine of free speech exemplified by shouting fire in a crowded theater. what is the culpability of a person who would intentionally seek out someone that they knew suggested were was badly educated or emotionally unstable and sat next to them in a crowded theater and say
do you smell smoke? wouldn't a fire be terrible? i think i see a lot of the suggestion taking place in some instances. >> you have done what 99 percent of people do when they think they are paraphrasing that line from justice holmes but you left out a very crucial word which i think answers your question. he said freedom of speech does not extend to falsely shouting fire in a theater and causing panic. if the theater really is on fefire we want them to shout that because it is life-saving but if it is not and endangers people by falsely telling them it is in creating a panic , then naturally does satisfy the notion of a clear and present danger. that would justify the speech.
>> that example of falsely shouting fire is an example that word satisfy the brandenburg standard he on - - standard he was likely to incite imminent lawlessness of a right. >> jeanine in kentucky. >>caller: i heard compelling government interest as a way to limit speech on college campus. can your guest explain the term and tell me exactly what evidence is required to establish a compelling government interest? thank you for taking my call. >> that is another legal formulation similar to the
brandenburg standard but you only given onee part in official would have to show not only there was a compelling interest at stake butta also that suppressing the speech was necessary to advance the interest. so nothing short of censoring othis speech will prevent that emergency then and only then government suppresses the speech if there's any other way that speech threatens to imminently cause that they can come in and protect against the violence to censor speech has to be a last resort. >> learning about the history of landmark first amendment cases brandenburg versus ohio. from ohio welcome. >>caller.
it seems to me the term legal system a man is not above the law is contrary to the truth because it is man that makes thery law. to me morality and truth have nothing to do with the law in my opinion. i am an octogenarian every time a lot is created a criminal act is added on the books he didn't make the law unless there is a punishment attached. to me the legal system is a news around the neck prisons are filled with people because ofof laws that put them in jail that would not have been there before. it's all right to murder if the law says you can abort a child but you cannot kill anotherr man with a gun without going to prison. the legal system better wake up to what they are doing to the society you are talking a
lot of jargon and gibberish about first amendment rights and second amendment rights. how about the truth and morality and law?ad wake up young ladies before we go to hell in this country and thank you for your time. >> thank you for exercising your first amendment right to dissent and criticize the law. >> moving on to the supreme court 1969 brandenburg first arrested and then it took five years for the case to go to the supreme court the eisenhower appointees roosevelt appointees douglas anna kennedy appointees byron white and thurgood marshall and we will talk more in history and a particular year this is one of earl warren's
last cases he retired two weeks after the decision so some of the warren court. >> it was particularly noted for upholding civil liberties ciand civil rights particularly with desegregation and criminalal rights. it's interesting with the brandenburg case because it is at the very end of the warreny court and marks a strong marker protecting speech but to some extent the credit for the development of the free-speech principle has to go to the earlier justices of holmes and brandeis because this was a warren court decisions and then principles
they adopted and established in this case really were developed further in which detail with those earlier decisions. >> also with a justice in this case was justice black who wrote a concurrence and in fact at one time in early history he was a member of the kkk. he left in 1925 earlier we told you the twenties was the height of plan membership in the united states a former senator from alabama. when he was f appointed 1937 that there was an investigation about his background and hugo black did a radio ad just one - - address. >> the insinuations of racial intolerance made concerning me are based on the fact that i joined the kkk about 15 years ago. i did join the d clan. i later resigned. i never rejoined.
i completely discontinued any association with the organization. i have never resumed it. and i never expect to dove so. at no meeting of any organization social, political or fraternal, have i ever indicated the slightest departure from my steadfast faith and the unfettered rights of every american to follow his conscience in matters of religion. many friends of the colored race i have watched this with admiration and certainly they are entitled to the full measure of protection according to the citizenship of ourrd country by our constitution and our laws.
some of my best friends are catholics and jews. >> what part of his background and from studying him does he bring to his thinking on this case? >> first of all in defense of justice black come apparently he joined the clan at a time that was just the thing to do in politics in alabama. he was one of the greatest offenders and champions of racial justice that the supreme court has ever seen and when he was a young man he put on white robes and scared black people as an old man he put on black robes and scared white people he has left a real legacy for both freedom of speech and equal rights. >> i echo what nadine said and
i don't think with his last statements generally when you say some of my friends are black people are catholics or jews it seems like that is a faint excuse but with his actions and votes on the supreme court he absolutely showed his commitment to racial justice. in this case as he noted before with justice douglas, took a particularly strong concurrence to make sure the incitement standard was strongly enforced. >> the oral argument was for every 27, 1969 and then the lawyer arguing on behalf of of brandenburg was alan brown and listening to his oral argument and have the guests talk about the legal principles.
>> these are the facts. a television reporter indicated he came and met some of the footage figures that was for the taking of a movie across was burned and then failed some stupid rhetoric and some slogans and then a w single figure made a speech full of conditions and reservations. that is self-evident and stupid another film taken inside a house. there were guns in both films. both there were guns.
it's also to be noted the film was taken on a remote private farm inwh which they knew that they were not even light on - - invitees to beshf present on the farm. the case came to trial. the state produced nothing but the film in question. the only other evidence that the state produced was basically geared to identify those involved in the film showing of brandenburg had a gun similar to those in the film and markings on his person similar. other than this the state offered nothing. >> what you think about the mg argument? >> i think everything alan brown is doing is showing this video and this rally amounted
nothing. it was silly and stupid and what he is trying to establish is that nothing in this speech which is the basis of his conviction showed and intent to cause violence or to create a clear and present danger of violence. he emphasized it was a private farm. there was no one there but those who were invited and emphasizing the fact that there was no other evidence of a broader effort to create immediate violence. >> but looking at the text of the ohio statute plus he was found guilty. >> the statute was written so badly in effect it was creating a thought crime punishing you because of disapproval of your ideas. >> what is the courts role?
those that have similar laws on the books than the 14th amendment there are states that don't. >> it's interesting because the decision could have been written very narrowly and brown's argument was saying to the court he wasn't even and advocating violence so the court could have reversed the conviction by saying for sake of argument it is constitutional we don't have to reach that issue because he didn't even violate the statute as written. instead the court went much further and by implication all the others around the country. >> listening to oral argument on the other side. hamilton county prosecutor to represent their interests before the supreme court and here is a portion of his argument. >> i believe the ohio criminal
law is constitutional relative to my beliefs in this matter. i believe the matters before thise court is the application of the evidence has was presented to the jury to determine whether or not there was sufficient evidence on which a jury could return a verdict. i believe in this case, when counsel says sending the jews back to israel, let's give them back to the guard, this might not involve violence. perhaps in his reply i would like him to explain how the statement barry the niggers
could not suggest violent. >> but interestingly enough the evidence now in that case he had to come up with a n hypothetical that suppose brandenburg had said barry then negroes to which justice thurgood marshall then the only justice on the court said he wouldn't survive long if he said that and the aclu lawyer in his rebuttal said by the way that statement by justice marshall was made in ohio to violate the law because it could be seen as encouraging violence against the speaker against brandenburg.
>> i think what kershner was doing in his argument was the opposite of alan brown to emphasize the fact that showed there was a broader effort to stir up violence and unrest from the incendiary nature of what brandenburg said and the fact there was a fair amount of back and forth that brandenburg had invited the media and what kershner argued he wasn't just speaking to the 12 people on the farm but actually trying to broadcast to the broader community that would create a greater clear and present danger of violence. >> oak creek wisconsin welcome. >>caller: hello.
does brandenburg overturn the sedition act that you cannot speak out against the war? or do those laws still apply? i think recently people brought that up during the ugoal for - - gulf war. >> it did not overturn that. one could make very strong arguments the reasons in this case a speech protective decisions would weigh in favor of overturning the sedition law if anybody ever challenged in court but to the best of my knowledge that has not happened. >> is the espionage act the same as the sedition? >> that also prohibited advocacy violence or unlawful acacts and also prohibited
certain acts that would undermine the war effort is still on the books and has been used on the war of terrorism and those that leak information to harm the country. st>> new jersey hello james. >>caller: interestingly enough just today i believe the white supremacist richard spencer was banned from utilizing facebook. is there any first amendment implications do something like that quick. >> the first amendment along with all virtually all rights guaranteed in the constitution only binds governmenty officials. private sector entity facebook is not constrained directly by the first amendment at all. under the terms of service, it pledges to block certain speakers and expressions that
government officials would violate by blocking. >> been is next from san diego. >>caller: my question is , are you familiar with hate speech not being free speech? >> i have seen many such misstatements. >>caller: so just to summarize he says hate speech is a physical imposition because the language has a psychological effect to bring about toxic stress and fear and distrust on - - distrust and then they can change those moving towards hate and threateningha action then you
move to carry out what you think and feel. that is a summary why hate speech is not free speech and i'm wanting your response. >> it is true that expression is very powerful and hate speech i will put in air quotes does not have a specific definition but those based on answer and demographic characteristics can have adverse psychological and even physiological impacts potentially. but not necessarily. it all depends on many factors including the attitude of the person the speech is targeted. so psychological experts say we can train people to respond inha a way that is empowering they rise above the insults but rather it is the person uttering that venom should be the person that is looked down upon and moreover even if there is an adverse or
psychological response by a particular target that can never be a justification for censorship. think of the implications all of us are subject to all kinds of expression causing adverse emotional impact including very important public policy issues. the democracy couldn't survive if every time they had psychic pain. i don't mean to diminish it but the cure of censorship is even worse than the disease is some psychic pain when we can all learn to be resilient to minimize the pain. >> nadine wrote the book on this but absolutely hate
speech is not defined. see you go down the road to have the government censor it in some way becomes extremely complicated and no one can agree what constitutes hate speech so it's hard to censor but to be clear, there are areas of law where you canre punish hate speech directed as a true threat against an individual. this not that there's no putting someone and fear of bodily harm. >>. >> the generalization that all hate speech is protected is also wrong we have wonderful nuanced distinctions in the brandenburg case. they can and should be punished consistent with brandenburg. >> i appreciate you taking my call.
specifically an employee at a public campus do they enjoy the full range of protections while on campus or are there limits in that regard? >> the employer including a government employer has the prerogative of restricting and regulating speech in a way that is necessary to maintain whatever the business is in the case of campus and educationalso context if an employee says something that undermined the educational function of the university that could be punished we would have to be very careful thatca that power to have that educational function was not used collectively to punish certain ideas just because the university disagreed with the
ideas. >> the decision was handed down to ninth, 1969 next we will listen to walter cronkite announcing the decision. >> the court overturned a klansman unconstitutional saying he cannot be part of punished it for what he says if that does not incite lawlessnesste so that's a brief report on the national news. we said before this was a decision meaning what? >> coming from the court typically a justice that writes the majority opinion that will govern the case but not attributed to any particular justice and it seems fair to infer are the reason why it is a court decision it was first written
before he resigned in a financial scandal and then justice brennan edited it and some scholars have reported he really change this language from the clear and convincing test to make and new test the likelihood. >> are they always unanimous? >> no. i was surprised to refresh my recollection for this program that bush versus gore was an opinion that ultimately resulted in george w. bush becoming president and there were many separate opinions the individual justices issued the vote was as split as it could be in there was a split
opinion. >> it's complicated because there were some allegations that he had to close of a relationship with president johnson that he was very close politically and that continued after he was on the court that he was in proper violation separation of powers and impartiality of a justice and there were certain financial obligations as well. i'm not clear what it was in particular that propelled him to design on - - to resign for those themselves that were investigated for meimproprieties. >> i'm sorry all of this came out he was nominated to be
chief justice apparently this was the first time there was senate confirmation hearings and those that were opposed to him ideologically raising these other issues spent the statute by its own words purports the advocacy assembly with others to advocate i described action with the condemnation of thee first andh amendment. >> this was a watershed moment the court had inched toward that result in there hadn't been that many supreme court decisions for nearly 20 years but what they are saying is mere advocacy of violence were
action cannot be punished under the firster amendment. in the later cases what does this mean cracks you have to intend to incite violence. has to be imminent and there is a question what does imminent mean and likely? so not just the text or the content of the speech but also in which it takes place and how likely it would be to trigger violence. and you can see in the case that came about was the antiwarng protester that will take to the streets later and the court held that was not sufficient harm to uphold the conviction that suggesting even if violence were to occur hours after that cannot be punished.
>> there are two concurrences a justice black and here is an excerpt from justice douglas the example usually given the is one that shouts fire in a crowded theater with this is a classic case were speeches brigade with action. in the they are inseparable in the prosecution can be launched for the overt act apart from thend rare instances and then immune from prosecution. >> douglas was probably the most absolutist in terms of protecting freedom of speech and black used to quote the first amendment that says congress shall make no law abridging the freedom of speech no law means no law. so they tried to make this
distinction between speech and conduct but that which is so closely tied to conduct the only way you can prevent the t dangerous conduct is by suppressing that speech but has to be an emergency situation and suppression only as a last resort if persuasion or law enforcement doesn't do the job as big as you have said what comes out of this case noted the brandenburg test can you discuss the intentnt element and also curious about issues and challenges of individual group members and we are thinking of charlottesville here. >> yes. there has been a debate do you
intend to incite a particular kind of violence are do you just intend to give the speech and just with the events and charlottesville that you have to look at the speech the individual protesters gave there has been discussion that they would go there and they wanted to start violence things like that and the aclu made the decision for those that want to march with guns with the concern of imminent violence but on the other hand you have all these protest after the charlottesville rallies where people came and white nationalist were speaking when it was peaceful ultimately. you don't want to take these terrible events and use them as reasons to squelch any type
of speech a matter how offensive. >> we need to be concerned with guilt by association. that was a play in the naacp case mentioned earlier where the supreme court citing brandenburg refused to hold the entire organization and culpable with huge amount of damages with the lower courts because of the incendiary speech given by one of its leaders and it's so good with the naacp and civil rights work that decision is a lower court decision has been sustained and and stop it from the civil rights advocacy. >> the reaction at the time was front page news then thrown out by the high court ruling but "the new york times" the court voids the law
and then put it on page 13 what today recognize at the time? >> i did not know thate about "the new york times". i saw the other commentary that was treated appropriately so those that were celebrated and recognized. >> we will talk about the legacy the first of lite what happened to a klansman for himself. we really don't know much of the rest of his life we know very little he continued to be an angry person a poll 71 he was thrown1 out of the national socialist white people's party and in june of 71 sued the cincinnati inquirer over the reporting of his ouster and in april 1972 he was jailed for harassing a jewish neighbor by
telephone. and then to act on this frustration. >> we talked about a number of cases that have come along since then and we will talk about how they have continued his understanding of the first amendment was take a call from george in pittsburgh. >>caller. did any imminent violence actually occur? what offense does that have on the decision? >> and that's also true as katie said earlier and the third case like the naacp there was violence after a fiery speech that threatened violence against those who
violated the boycott of those that were discriminating on the basis ofbu race. there was violence but it occurred weeks or months after theat speech and therefore the supreme court said the imminent standard was not satisfied. but the opposite could be true if the speech intended to and was likely to actually result in violence to satisfy the test even if the likelihood never came to pass. >>. >> i have read a lot lately where people can engage in free speech if it will ncstimulate violence but what about those that try to stifle speech threatif and violence?
where does the original demonstrator one and and another begins? >> the supreme court has recognized what you talk about that we do not allow hecklers who disagree with the speakers message we do not allow them with the free speech rights of the speaker and the audience members because that violates their first amendment rights. it's important to note the supreme court crafted that doctrine in the civil rights movement and the civil rights demonstrations and many others that try to stop mlk from demonstrating that they're all these people in the community that were threat and by the message.
and actually throwing bottles and rocks in the supreme court said no. you have to protect the speaker against the violence you may not suppress the speech to ever violence by hecklers.. weston connecticut r side of thea minute. we have been looking at brandenburg as a protectionist free-speech case. at the same time, the court is saying, if you reached some limit -- there is a limit, however you express by which speech is not permissible. even though the text of the he first amendment doesn't talk about limited speech under any conditions. could we not extend that approach to the second amendment, where so many pro-gun people are saying, well, the
second amendment rights are absolute? this nothing in the text of the amendment to limit it, yet we can cite brandenburg to say that, at some point, reasonable restrictions can be imposed in a constitutional way. >> well i'm from the knights of the first amendment institute, not the second amendment institute. we are really focused on free-speech rights. i think in the brandenburg decision, the court has always been clear that the right to free speech is not absolute and there are certain ways of engaging in speech that are considered part and parcel of an actual crime, for instance engaging in speech in furtherance of a fraud or harassment, or in certain forms of conspiracy. you are actually speaking, you
can still be punished even though the way that you are committing the crime through speech. it is not an absolute first amendment right. but at the same time, the brandenburg test is a very strict restriction on the ability of the government. >> the analogy you drew between the first and second amendment in this regard is exactly what was done by justice scalia in his majority opinion for the court in which he did, for the first time, construe the second amendment as ensuring the individual right to bear arms. scully asset, and he was very strong on the first amendment, too. he said, just as a first amendment is not absolute and certain regulations of speech are constitutional, the same is true for the second amendment rights that we are now recognizing. it also not absolute. he actually gave examples of gun regulations that would be constitutional. >> the 1970's were an active time for first amendment cases. here are some of them. : versus california in 1971, a man was convicted for an obscene
jacket protesting the draft in the courthouse. hess versus indiana, 1973, disorderly conduct four cursing at police. national socialist party of virginia versus cokie, illinois , pretty famous case in 1977. texas versus johnson, banning flagburning was struck down. 1992, concerning teenagers who burned a cross on an african-american family's lawn was convicted under a hate crime. al edward markey. -- i will add one more. a trademark case, a group being denied a trademark. the cortez that was a violation of free speech. you have been involved in some of these more recent ones. what can we learn about how the court is evolving?
>> one of the things that is interesting about the brandenburg decision, although it involved the ku klux klan and burning the cross, the case did not turn on what we would consider colloquial hate speech. it wasn't about the offensiveness about the speech. it was about whether it was likely to cause violence. but the rule established in brandenburg is part of the greater evolution of the supreme court during the 20th century, tort, instead of having a balancing test about speech, where you weigh the harm of the speech in the government's interest in regulating it almost equally, putting the thumb firmly on the scale in favor of the first amendment. in all of those cases involving flagburning, which is considered extremely offensive to people and an argument why should we protect that kind of speech which is so hurtful to people, drawing on the principles of brandenburg, where you start with -- and i think douglas says
in his concurrence, free speech is the rule, not the exception. the cases we also worked on, in between those periods of time where i worked on, involved attempts to regulate video games or other kinds of violent media, the argument being, for instance, there were cases arising out of some of the school shooting cases, where the plaintiff argued that producers of movies or video games depicting violence should be held accountable for the violence that occurred. then there were a number of state laws that would restrict the sale of violent video games, the argument being that this kind of speech leads to violence, encourages people to act violently. and, the number of courts, we argued in those courts that, under the brandenburg case, he -- you can't show that a video game or a movie or a book that depicts violence is intending to incite violence. >> one more, and our final piece
of the video features justice antonin scalia and eleanor holmes norton. both talking about free speach in our society. >> it sometimes annoys me that, when someone has made outrageous statements that are hateful, somebody says sometimes the press will say, well, he was just exercising his first amendment rights, as though first amendment rights are like muscles -- the more you use them, the better. and it doesn't matter what purpose you are using them for. you can be using your first amendment rights and a can be abominable that you are using your first amendment rights. i will defend your right to use it, but i will not defend the appropriateness of the manner in which you are using it now. >> it's important to understand the brandenburg case, for , example, it was classic hate speech.
it was less about violence than about hate. all of these cases, which have made the law through the supreme court, could all be characterized as hate speech. they go out against minority groups. they go out not against groups like themselves. but they specialize in hate. hate speech is not only new, it's important to understand -- that the supreme court cases that allow us today to have a me too movement, that allow the youngsters in the enough is enough movement, the youngsters trying to get changes in gun laws, very difficult to get here on the hill. all of that comes out of cases that were based on hate speech.
>> in our final 10 minutes, we have people on opposite sides of the political spectrum, both espousing the importance of free speech in our society. what is your reaction when you heard them? >> i completely agree with both of them, and with the vast majority of supreme court justices in the most recent cases that you listed a moment ago, susan. the cases have by and large been unanimous or nearly unanimous, despite the ideological diversity on the supreme court and the fact that they disagree on other issues. this is as it should be. because, a neutral defense of individual freedom to choose what say or hear are not versus government power to make that decision, as eleanor holmes norton keeps stressing, is something for the benefit of everybody, no matter who you are, no matter what you believe. you should have your own rights to make these fundamental decisions.
and by definition, a government is going to be accountable to the majority. so those that have the biggest stake in the long run in free speech are members of minority groups, whether political minorities, racial minorities, other minorities. >> bill is in portland, connecticut. caller: question for nadine. i think this was an issue that aclu had some involvement with recently. this has to do with the dakota access pipeline. the protests that took place in the dakotas where, you have protesters, native americans, people coming from all over the country to protest this pipeline that was affecting -- could affect the quality of the water supply there. and the protesters themselves were met with extreme reactions from the police and security personnel on the scene, even had
journalists being arrested. you had elderly people that were being sprayed at with water in freezing weather. you had attack dogs on the scene, just unbelievable situation. these were essentially peaceful protesters. in effect, they were being criminalized for doing that -- for protesting. since then, we have heard that more and more states are enacting laws that would, in effect, criminalized this type of protests. i wanted to get your reaction and thoughts about that. >> you stated it at least as well as i can. these actions clearly implicate first amendment rights. the rights existing theory, it
is not until you get a court to enforce them that they exist in reality. that is why it is so important to have organizations and individual members of the community such as you, to ultimately wield political power. a great free-speech scholar in the last century said, in the long run, we the people will have as much freedom of speech as we want. so please raise your voice to your elected officials as well. >> a question -- just last week, in the secretary of state confirmation here is, -- confirmation hearings on capitol hill, the chairman of the committee said he used to be able to have people who were taken out of the room, have their arrests nullified. but he could not do that anymore. the question is, where does free-speech and in congress operations, when they are having hearings, where's that intersection? >> i think they should allow plenty of free speech and not
arrest them or kick them out because of disruption. obviously, you have to have neutrally enforced rules about allowing people to speak and not being totally disrupted. in terms of -- you don't want to have protesters shout down or drown out the hearing. i think it was last year that someone was arrested and prosecuted for laughing during jeff sessions' confirmation hearing. it was eventually dropped. that was certainly beyond the pale. >> how does the united states do with other western democracies? >> we have a mixed record. what the courts call political speech, speech about political officials, public affairs, we allow hate speech which in other
countries is prosecuted. politicians and even elected officials have been prosecuted and convicted for making general statements about immigrants or racial minorities or women that are expressing a public policy point of view, but seen as being disparaging and that is against the law. where we are not so good as other western european countries is with respect to sexual expression. we have much more of a prudish stance allowing so-called obscenity laws to be enforced. >> on twitter, someone ask, how much does this ruling affect free speech and social media? but also asks is there a , difference between written and verbal hate speech? >> no. those types of speech are treated equally for the purposes of the first amendment. in fact, even some kind of action or symbolic speech,
expressing yourself physically is also protected as free speech. >> charles in mobile, alabama. caller: i would like to compliment c-span. i would also like to compliment justice douglas. he was very happy to try and greatly starts in my draft case in 1972. as for the lady from aclu, very nice lady, i would like to ask her what she is doing about the crippling of free speech. at my parents alma mater at berkeley in california. and the conservative speakers that have been banned there. >> >> thank you so much, charles. i wish i had the power to control what happens at berkeley. i am doing what i can, speaking on many campuses, including hopefully berkeley soon. the whole reason i spent much of the last year writing my book, which is defending freedom of speech or hate speech, advocating counter speech and other measures to deal with actual problems of hatred and
discrimination. but the reason i felt it was necessary was, clearly we free speech advocates have not persuaded too many college students and members of the public. i hope this book will make the case more persuasively and the berkeley students will start showing more respect on free speech. >> we are on a campus what is , your organization doing about campus free-speech? >> we are not directly involved on free speech. we are focused on speech in the digital age. although our academic focus is very much on bringing together people to look at issues about new ways to address free speech problems or questions about , whether for instance, free speech on social media and are their arguments about holding social media platforms liable for restricting speech or for
allowing speech, either way, either side of the coin. i think that is the new frontier of the first amendment, as the court recognized in the packing hand decision last year. >> final caller, from palm beach, florida. bruce, what is your question for our guests? caller: i wonder if brandenburg would apply to simon gestures. -- silent gestures. section the other big games, they gave the black power sign and were sent home. and how that would apply to what is happening in the nfl today with athletes kneeling during the national anthem. >> as katie said earlier, the supreme court has long recognized that so-called symbolic expression, which intends to and is understood as conveying a specific message, does come within the protection of the first amendment. unless that expression violates
the brandenburg test, it could not be punished by the government. >> ohio's clearance brandenburg gave us the case that broadly defined the first amendment rights of free speech. i want to say thanks to our two guests, katie and nadine for helping us understand the history and the importance of this case. and we thank our partners at the national constitution center for their help. >> thank you. >> thank you. [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] [captions copyright national cable satellite corp. 2021] ♪