In constitutional law, the United States Supreme Court occasionally plucks an unlikely litigant’s case out of literally thousands to make a landmark ruling.
In the First Amendment arena, the Court declared important free-speech principles in the case of Ku Klux Klan member Clarence Brandenburg in Brandenburg v. Ohio (1969).
Forty years ago today, the U.S. Supreme Court issued a unanimous opinion that has become one of the most important free-expression cases in First Amendment jurisprudence. The Court determined in Brandenburg that “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.”
The so-called Brandenburg incitement test or Brandenburg exception provides much First Amendment protection for controversial speech — particularly political speech that challenges existing government and law.
“It is unusual but every so often the Supreme Court delights in taking an improbable case and establishing important principles of law or standards in such cases,” explains Robert O’Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression. “Brandenburg established a remarkably durable and very stable protection for government regulation of advocacy and, more broadly, for all political expression.”
“The test has been proven to be a steady and enduring test,” First Amendment expert and author Rodney M. Smolla agrees. “After decades and decades of alternate forms of the clear and present danger test, which was given different definitions and colorations, the Supreme Court in Brandenburg restated that tradition in a short … opinion. There is value in that stability.”
Development of ‘clear and present danger’ test
In the early 20th century, the Supreme Court began to develop tests to determine the dividing line between protected and unprotected expression. These cases arose around the time of World War I and dealt with political dissident speech — often expression opposing the draft, the U.S. war effort or the capitalist system.
In April 1919 the Supreme Court unanimously affirmed the conviction of Charles Schenck for distributing a leaflet critical of the draft and U.S. war effort. Writing for the Court in Schenck v. United States, Justice Oliver Wendell Holmes wrote: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Holmes used different language — “clear and present danger” — than did other opinions of the era that ruled that speech could be proscribed — even political speech — if it had a tendency to cause harm. This so-called “bad tendency” test struck the balance heavily in favor of the government. Even though Holmes used the “clear and present” danger language, he ruled for the government and against Schenck. Some scholars have reasoned that Holmes’ original conception of “clear and present” danger was not that far removed from the “bad tendency” test.
That changed later that year, however, when the majority of the Court upheld 7-2 the conviction of five Russian anarchists, including Jacob Abrams, who opposed the sending of U.S. troops into Russia and other elements of U.S. foreign policy (Abrams v. U.S.). The majority opinion, authored by Justice John H. Clarke, used the “bad tendency” test to rule against the defendants. However, Justice Holmes, joined by Louis Brandeis, penned a dissent in which he applied his “clear and present danger” formulation with more vigor. He noted that the government may punish speech only if it is “intended to produce a clear and imminent danger” and “it is only the present danger of immediate evil or an intent to bring it about” that gives the government the power to criminalize or punish such speakers. Holmes stressed the importance of the imminence of the harm. However, this was only a dissent.
Eight years later in Whitney v. California (1927), the majority of the Court used a version of the “bad tendency” test to convict Charlotte Anita Whitney, a niece of former U.S. Supreme Court Justice Stephen Field, for her alleged role with the Communist Party in California. Convicted under a state syndicalism law, Whitney appealed to the Supreme Court. The majority, in an opinion by Justice Edward Sandford, determined that the state may punish speech that is “tending to incite to crime.” Once again, Justices Holmes and Brandeis dissented, though this time it was Brandeis who authored the dissent.
In his dissent Brandeis stressed imminency, writing: “the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended, to produce, a clear and imminent danger of some substantive evil which the state constitutionally may seek to prevent.”
In the Cold War, the U.S. Supreme Court applied a seemingly broad version of the clear and present danger test to uphold the conviction of about a dozen members of the Communist Party in Dennis v. United States (1951). The concept of imminency seemed to take a back seat to the concerns over the worldwide threat and fear of communism.
Then came a case in the 1960s involving the prosecution of Klansman Clarence Brandenburg under a state syndicalism law — virtually identical to the California law under which Charlotte Anita Whitney was convicted decades earlier.
History of the case
In 1950, Justice Felix Frankfurter wrote: “It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.” Brandenburg, a Klan leader in Hamilton County, Ohio, certainly fit the bill.
The case began after Brandenburg telephoned a reporter at a Cincinnati television station and invited him to a rally. A reporter and cameraman attended the event and filmed it. It featured about a dozen Klansmen — some of whom carried guns — standing around a burning wooden cross. Brandenburg gave a speech in which he uttered disparaging remarks about blacks and Jews. He also said: “We’re not a revengent organization, but if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”
Brandenburg faced criminal charges in state court for violating the Ohio Criminal Syndicalism law, which prohibited the advocacy of “crime, sabotage, violence or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” He was convicted. An intermediate appellate court in Ohio affirmed the conviction without an opinion. The Ohio Supreme Court dismissed the case sua sponte (on its own, without a motion by a party in a case), “for the reason that no substantial constitutional question exists herein.”
However, the American Civil Liberties Union of Ohio disagreed that the case of Clarence Brandenburg presented “no substantial constitutional question.” Brandenburg’s legal team consisted of a true “dream team.” It included First Amendment lawyers such as Allen Brown, Norman Dorsen, Melvin L. Wulf, Eleanor Holmes Norton and Bernard A. Berkman.
Dorsen, a member of the New York University Law School beginning in 1961, worked closely in those days with Wulf, the legal director of the American Civil Liberties from 1962-1977. He recalls that Brown and other attorneys in Ohio (perhaps also Berkman) saw the potential in the case and referred the case to Wulf. “The national ACLU had to approve all ACLU cases taken to the Supreme Court and still have to,” he explains. “Wulf consulted me because, although I was on the NYU faculty since 1961, I was a very active ACLU appellate litigator.” Dorsen later became a general counsel (1969-1976) and president (1976-1991) of the ACLU.
Dorsen led the efforts on the brief on behalf of Brandenburg for the Supreme Court, while Brown argued the case before the Court.
The result was a unanimous opinion issued by the Court (as opposed to being signed by a particular justice) that led to a sweeping victory for Brandenburg. The Court determined that the Ohio law punished mere advocacy and failed to distinguish between abstract advocacy and true incitement to imminent lawless action.
The Court explained: “we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teachings of Whitney v. California cannot be supported, and that decision is therefore overruled.”
“Although I knew that the issue was important, until the opinion came down overruling Whitney I did not appreciate that the case would fundamentally alter the incitement to crime doctrine, including the clear and present danger test, and become the leading case,” Dorsen told the First Amendment Center in an e-mail interview.
It is interesting that such an important free-speech decision arose from a case without lower court appellate opinions. “In a case like Brandenburg without lower court opinions or a case comes as a tabula rasa, the Court is freer to formulate a standard than it might be if it had been carefully reviewed and massaged by a lower court,” O’Neil said.
Apparently, the unsigned opinion initially was drafted by Justice Abe Fortas, who later left the Court before the opinion was released. Justice William Brennan then produced the final version.
Brandenburg and continuing First Amendment questions
A few years later in Hess v. Indiana (1973) a divided Supreme Court applied Brandenburg to a case involving Gregory Hess, a protester at Indiana University who allegedly said, “We’ll take the fucking street again" (or "later.") The Court majority, again in an unsigned opinion, determined that Hess’ profane statement “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court concluded that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a 'tendency to lead to violence.'"
“The Brandenburg-Hess standard — Brandenburg gave an incomplete formulation that was added to in Hess — represents the embodiment of the highest level of protection for controversial and contentious political expression,” says O’Neil.
The Supreme Court later determined in NAACP v. Claiborne Hardware Co. (1982) that Charles Evers — brother of the late Mississippi civil rights leader Medger — did not incite imminent lawless action when he, as field secretary for the NAACP in Mississippi, threatened violence against those who refused to boycott white businesses in colorful language. The Court applied Brandenburg and found that the speech was protected: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
Questions remain as to when and to what type of cases the Brandenburg standard or incitement-to-imminent-lawless-action exception should be applied. For example, sometimes courts will forego the Brandenburg test and instead categorize speech as a true threat. In Planned Parenthood v. American Coalition of Life Activists (2002), the 9th U.S. Circuit Court of Appeals determined that some vigorous anti-abortion speech — including a Web site called the Nuremberg Files that listed the names and addresses of abortion providers who should be tried for “crimes against humanity” — should be analyzed under a true-threats standard rather than Brandenburg. The en banc panel majority reasoned that “while advocating violence is protected, threatening a person with violence is not.” However, Judge Alex Kozinski in his dissent determined that the speech should be analyzed under Brandenburg.
“The two — incitement and threats — are cousins and it is often difficult to determine which exception is most applicable in a specific case,” Smolla said, explaining that generally in an incitement case, a speaker speaks and any resultant harm takes place in the future. In a threat case, he said, “the harm takes place immediately, as the First Amendment doesn’t protect the use of words to engage in extortion and placing persons in immediate fear.”
In another well-known lower court case, the 4th U.S. Circuit Court of Appeals in Rice v. Paladin Press (1997) refused to apply Brandenburg to a case involving a lawsuit against the publisher of a hit-man manual that instructed people step-by-step in how to kill someone. The case involved a case in which it was stipulated that a killer followed numerous instructions in the book Hit Man: A Technical Manual for Independent Contractors in carrying out murders. Judge Michael Luttig determined that the book publisher could be held civilly liable for aiding and abetting. Luttig noted the importance of Brandenburg but reasoned that it did not apply to “speech, which, in its effect, is tantamount to legitimately proscribable nonexpressive conduct.” Luttig noted that “the First Amendment is generally inapplicable to charges of aiding and abetting violations of the tax laws.”
“I don’t believe that Brandenburg should be applied in fact patterns involving criminal instructions and aiding and abetting,” said Smolla, who was part of the legal team suing Paladin Press in the hitman-manual case.
However, Brandenburg has been applied in other civil liability cases successfully by those defending producers of products that allegedly cause or lead to violence and even death. For example, in Davidson v. Time Warner (S.D. Texas 1997), a federal district court in Texas rejected a suit by the widow of a state trooper against the company that produced a rap song by Tupac Shakur. The widow alleged that a man killed the state trooper after listening to Shakur’s album 2Pocalypse Now, which contained at least one song ("Crooked Ass Nigga") that contained very strong anti-police lyrics. The court relied in part on Brandenburg to reject the suit, writing: “At worst, Shakur's intent was to cause violence some time after the listener considered Shakur's message. The First Amendment protects such advocacy.”
Another question is the application of Brandenburg in time of war, including the war on terror. “Brandenburg was a peacetime decision even though the Vietnam War was going on at the time,” says O’Neil. “It has never been applied by the Supreme Court in a genuine national security case.”
Similarly, Ronald K.L. Collins and David Skover in a 2005 Rutgers Law Journal article, “What is War?: Reflections on Free Speech in Wartime,” reflect on the fact that Brandenburg — unlike Schenck, Abrams and many of the other early “clear and present danger” cases — was not a wartime case. “Unlike the other cases, [Brandenburg] did not involve a prosecution for speech that interfered with war efforts,” they write. Collins is a scholar at the First Amendment Center in Washington.
Judge Richard Posner in his book Not A Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006) warns that Brandenburg may have to be modified in the time of the war on terror when a radical Islamist may urge thousands to kill and commit terrorist acts.
Even more provocatively, scholar Richard Miniter, now the editorial-page editor of The Washington Times, writes in his white paper, “Is Terror Winning in the Courts?” that Brandenburg “is now being used to thwart the convictions of individuals linked to al Qaeda and other foreign terrorist outfits.” He adds that “sadly, the Brandenburg precedent — set in a starkly different time — makes it almost impossible for the government to prevail against terrorists, who are caught in planning stages, in the federal courts.”
O’Neil says Brandenburg presents difficulty for both sides in terrorist prosecutions: “We do not know if the Brandenburg-Hess standard applies fully in the post-9/11 environment. This uncertainty may have affected litigation strategy on both sides.”
Admittedly, there are continuing questions about the intersection of Brandenburg with true threats and other First Amendment exceptions. There is hearty disagreement over the applicability of Brandenburg to different types of cases and in times of war and terror. Many argue that the standard should be modified for speech on the Internet.
What is incontrovertible, however, is that 40 years ago today, the U.S. Supreme Court established a landmark First Amendment precedent.