There has been much talk and speculation in the media lately about the limits of free speech and what speech is permitted, and what speech is not protected by the First Amendment of the United States Constitution. Under the First Amendment, the vast majority of speech is protected, even if that speech is seen by most people as vile, repulsive, or racist. A classic example of speech that is not protected is yelling fire in a crowded theatre.
There are a few categories of speech where the First Amendment offers little or no protection for the speaker. That includes obscenity, child pornography and speech that incites immediate illegal actions. Today we are going to discuss that third category, speech that is considered by some to incite, or advocate imminent lawless action. The case that still controls whether speech in this context is protected is Brandenburg v. Ohio, 395 U.S.444 (1969). In Brandenburg, the U.S. Supreme Court wrestled with the question of whether Mr. Brandenburg’s speech, as loathsome and disgusting as it was, was protected by the Constitution. Brandenburg was the leader of a Ku Klux Klan group in Ohio in the 1960’s. The Klan leader telephoned a reporter from an Ohio television station and invited him to come to a Klan rally that was to be held outside of Cincinnati. Portions of the rally were recorded, broadcast and ended up on the national news. During the rally, Brandenburg made numerous statements that were widely considered to be racist and repulsive. The film showed a dozen hooded Klan members, some carrying firearms, burning a cross. He made a statement that 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.” Later at the rally Brandenburg stated, “Personally I think the nig… should be returned to Africa, the Jew returned to Israel.” He further stated “Bury the nig…s. We intend to do our part”.
After the video of the rally was distributed, Brandenburg was arrested under an Ohio statute that prohibited “advocating the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform”, and for “voluntarily assembling with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Brandenburg was convicted in state court and sentenced to between one and ten years in prison. He challenged the constitutionality of the statute but lost all appeals until the case reached the U.S. Supreme Court.
The Supreme Court reversed Brandenburg’s conviction holding that Constitutional guarantees under the First Amendment “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.”
After more than 50 years, the Brandenburg test is still the formula that courts must use to determine whether speech which advocates for potential violence is protected. It is protected unless the speaker is directing or advocating for imminent (immediate) lawless action and whether that speech is likely to produce such lawless action. To make this determination, courts will look at the facts and circumstances surrounding the speech and decide whether it was intended to create immediate illegal actions and whether it is likely those illegal actions are likely to occur.
If you have been arrested and charged with inciting violence, call us for a free consultation with an experienced criminal defense attorney at (727) 205-5555.