As person having being before the Honorable Supreme Court of the United States are to draw near and give their attention. The special history series, produced in partnership with the National Constitution center. Exploring the human stories, and constitutional dramas behind 12 historic [ decisions. Mr. Chief justice, and may it please the court quite obvious in much of our most famous decisions are the ones that the court took that were quite unpopular. Lets go through a few cases that illustrate very dramatically and visually what it means to live in a society of different people who helped stick together, because they believe in a rule of law. Good evening. Welcome to cspans landmark cases. This 1969 case of the warren Court Unanimously handed down with you most expansive interpretations ever of our First Amendment guarantees to fry speech and assembly. What are the very basics . Vandenberg was the leader of the ku klux klan in cincinnati, ohio, who held a rally for his members of his own group, they filmed it, aired it on tv, showing him in a hood klan regalia in front of a burning cross. Some members of his organ were brandishing guns, making racist statements about yous and blaje blacks. And he was convicted under a statute that made it a crime to advocate were going to learn about its impact on our society. As we get started, we have two pieces of media for you. Were going to listen to a bit of and youll hear some of the particulars of this case. It includes some of the offensive language used by the defendant in this case, but its at the heart of what were talking about. And we move on to Justice Ginsburg, then judge ginsburg where he talks about the then theres a second portion of the film in which the group of people are marching, Walking Around a burning cross, hooded, armed, shouting profanities in which there is a question whether or not the defendant himself said the words as contributed to him in the transcripts and on page 5 how far is the nigger going to send the jews back to israel, so forth and other profanities. Truly recognizes that free speech means not freedom of thought and speech for those with whom we agree, but freedom of expression for the expression we hate. I think that there are always new contexts that will be present presented but thats discertaintying positions of holmes and brandeis have become the law that everyone accepts. I think that is the case today. Do you consider brandon berg as one of the great milestones in the courts history . I certainly do. As Justice Ginsburg said, there are always new contexts what is it about this case that makes it seminal. The brandon berg decision is one of the strongest protect sieve decisions of free speech, and its been around for nearly 50 years. It establishing a fundamental principle that we need to allow free speech, even if it advocates unlawfulness. I think the other aspect is that its very important, so that serving in that position from 1991 to 2008, both the first woman and the judgest person ever to hold the position. Shes now a professor at new York Law School and manhattan. She also has a new book out called hate, would we should resist it with free speech, noncensorship. Katy fallow is a former partner at a private law firm, where she wrote a brief on a First Amendment case, ema versus brown, which held that video games were protected speech. She also clerked in the federal courts for judge rosemary b barkette. Welcome. This is a set of laws called the send callism laws, what is the history of them . When did they start developing . They were adopted starting in 1919, the world war i era, as a response to the feared spread of anarchy and socialism. Did they all do the same thing . Pretty much. The language in the ohio state where it criminalized any advocacy of violence directed toward bringing about social change or economic change. They also used the word terrorism. Its interesting that our case that were looking at deals with the ku klux klan, but this was really the fear of communism that got this started. Can you add any more history to what the country was worried about as all these states were passing laws . I do think the brandon berg case in general is interesting, because it reflects a lot of social changes and cultural fears, and transitions that are happening throughout the 20s century. As nigh dean said, the laws started to be passed as a result of fear of communism and the International Workers of the wormed, and concerns about a threat to capitalism i think theres a sentiment about immigrants bringing in ideas from the out, trying to attack capitalist democracy. There were three key cases that the Supreme Court dealt with before brandon berg. One of them we talked about in our first says, shank versus ohio. Thats famous for the phrase clear and present danger. Two other cases and denis v. U. S. Why are these part of the lessons we need to learn. Boo i have beenly what they have in common is they dealt with one of the greatest fears of potential harm that free speech could cause, namely bringing about hampl to our capitalist sim or to National Security more generally. The shake case was famous, because it was that case, in an opinion through Justice Oliver Wendell Holmes came up with a famous test, socalled clear and present danger test, it cou. It was enforced by the court in that case and the other two you mentioned, that allowed the government to suppress political speech that it disagreed with, that criticized the status quo. What more do you have to say about the cases . One thing interesting about the shank case and the Justice Holmes role, he established this test of clear and present danger, which upheld the conviction of a socialist leafletters, but i think within a year he changed his mind and in a dissent in another case, where he dissented from upholding convictions of communist sympathizers. He and Justice Brandeis started developing a much richer doctrine of free speech protection, but for many years in the dissent, not in the majority. Were going to pause for a moment and revisit the First Amendment can you giving some back ground on what the founders were thinking . I think the founders considered the right to speech as fundamental for the ability for people to debate matters of interesting for that and recognize niced the importance of letting truth hopefully bubble up from wideopen debate. Its interesting, in the shank case prior to that, the Supreme Court had not struck down any laws violating the First Amendment, and i think the First Amendment was considered more important just to prevent against where the government would prevent something from says something. When you teach First Amendment law and history to your students, what do you tell them thats most important . I go back to the very first words we the people in order to cede a more perfect union, and so forth. So we the people are the governors in our democratic republic. How could we possibly carry out that important responsibility unless we have the most robust freedom of speech, including to criticize Government Officials and policies, and each other, in very Strong Language. Ic separate out freedom of speech from our political structure, but its also important for individual receive fulfillment. He said that freedom of speech is important as an end as a mean. The end in itself is individual liberty to choos what we will say. We continue to have one of those in our society today. We hope youll be part of our discussion tonight as we learn about this important case. There are a number of ways you can do it. You can call us please do so, and you can be part of the conversation on twitter. So, ohios i cannot do this the statute. Im not going to say it again. The 1990 case, lets look at what it specifically prohibited. It made illegal advocating, quote, the duty, necessity or propriety of crime, sabotage, violence or unlawful measures of terrorism, as a means of creating reform. The what would you hear . I think one of the ways they see laws were used was to punish people who were advocating or even about political doctrines that would involve Industrial Revolution or communist revolution and that was the concern about whether or not these laws could be applied like in the whitney case where the Charlotte Whitney who was, i guess, a grand niece of a former Supreme Court justice from a prominent family and she had attended a convention of the communist party, and she was a member, but she was essentially convicted for being a part of the communist as i understood it, she opposed the position that they would use violence. She was advocating democratic socialism. And in his great concurring it was called a concurring opinion but sounded like a accident, Justice Brandeis said the fear of revolution or some other violent or lawless event can never justify censorship. Man feared witches and burned women. I thought it was a great line especially when it was a woman who was convicted in that case. Voluntarily assigning, and just by attending a meeting. And literally teaching. In the dennis case it was just a matter, and it was leaders of the communist party and they were convicted for teaching what are classic works of marxism and leninism that are taught in many college courses. So the other thing we should talk about is the ku klux klan. In the 1920s and the 1930s and at its height the klan had 2 million members nationwide. By the time we get to 1964, 1965 when this case is germnating, what is the klan like in the United States and whats the societal attitude towards the klan . I think at the 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 change and people were talking about and fighting against the kind of terrorism that the klan had perpetrated against black americans throughout nearly 100 years. So, i think it was extremely important and clearly animating this case as the background of the klans violence and terrorism. News media reports suggests that although the klan had, according to the fbi and other authorities, about 40,000 members in this time period, that there were as many as 200 bombings that may have been perpetrated by members of the klan or sympathizers and murders of many civil rights workers. So this is the background. I think its also important to remember, though, susan, that at the same time we had a growing Antiwar Movement plus, of course, the Civil Rights Movement to which katie alluded. I think the Supreme Court probably was concerned about rights of demonstrators and protesters advocating various kinds of changes both for civil rights and against civil rights. Certainly their decision was one that has protected the rights of civil rights advocates. Were going to learn about clarence bradenburg, who gave his name to this case, but we have callers on the line. Lets begin with jonathan from milwaukee. Hi, jonathan, youre on the air. Caller thank you. I would like to know, if you could please explain ,how the Supreme Court in the bradenburg case combined judge hands direct insightful test with Justice Holmes clear and present danger test that was first articulated in shank and later developed as abrams dissent in other cases. Thank you very much. Jonathan, you sound very learned. But i will put into paraphrase for the other listeners what you clearly know which is the reason why this is such a speech protective test standard, as katie said earlier, is that it took every speech protective element in prior Supreme Court decisions and said one of them alone is not enough. You have to satisfy all of these standards, government, as a prerequisite for suppressing speech. You cannot do so unless you can show that it is an intentional incitement, intentional incitement of imminent violence which is likely to happen. In prior tests, the Supreme Court had said one of those elements or two of those elements was enough. But its very hard to satisfy all three, appropriately. Josh is in algona, iowa. Hi, josh, watching our series from time to time. Nice to hear from you. Whats your question tonight . Thank you. Since both Justice Douglas and black were almost First Amendment absolutist, how influential were they in the final decision of this case . I mean, i think from what we know, one interesting thing about this decision was that it was a decision which came from the court and wasnt authored wasnt attributed to a particular justice. And it was a unanimous decision, all eight justices that were then on the court joined it. And they wrote separately just to emphasize that whatever the majority per curiam decision said that the court should not and was not in any way embracing the previous clear and present danger standard. Whereas Justice Holmes wanted that standard to have teeth to it and use it as a way to only be able to punish speech that, in fact, is an emergency, is an emergency situation, that the standard had been used in ways that could actually be applied very vaguely to in the dennis case just apply to people who were teaching maxism and leninism. So black and douglas wrote separately really to emphasize that the clear and present danger standard shouldnt was being abandoned. And ive read that initially the opinion had been assigned to and was drafted by justice portis before he retired from the court. He had language that was similar to the past clear and present danger standard and justice black said he would not sign the opinion unless that language came out. Brennan apparently redrafted it and did take out that language and came out with the much stricter test that bradenburg included. Jim is in california. Hi, jim. Caller hello. Thank you very much. My question is regarding free speech today, so much activity in speech is on social media. Social media is a private these are private companies. And yet it seems to me that if you restrict speech on them, you are restricting a great deal of speech thats going on. And with the facebook situation thats recently come up, im just wondering what thoughts you might have on how we incorporate, how we make sure free speech is carried through to these entities, whatever they are, theyre so new i dont know how you quite describe them. Any way, thank you. Thats a great question. Well, first of all, the Supreme Court unanimously in june decided a case in which it held that government may not deny access to social media to an individual in this case it was a convicted sex offender who had served out his time precisely for the reasons you state, jim. The Supreme Court used very Strong Language about what an incredibly important public platform this was, especially for getting news and information and sharing it. Now the harder question is what about the censorship by social media themselves . As many people are surprised to learn, the First Amendment does not directly apply to private sector entities. And yet for all practical purposes the social media are one commentator said exercising worse than sorial power than all of the governments in all of the countries around the world throughout history. I think it is a very serious concern. Steve is in laguna beach. Hi, steve. Youre on the air. Caller thank you very much. I want to thank cspan for this wonderful series. Its fantastic to watch. I wanted to ask the speakers about the Free Speech Movement in the 1960s which started at i guess uc berkley how its evolved on campuses where there are attempts to sensor speakers coming on with opinions that may be offensive to students there and how does bradenburg apply to those situations particularly at public universities . Well, i think that i did go to berkeley but a little later than when the Free Speech Movement started. But i think that the current controversies about free speech on campus that if it is a public university, they do have to comply with the basic First Amendment requirements that allowing speech and not discriminating or denying speech based on viewpoint and to not allow speech to allow speech unless it is, in fact, going to incite imminent lawlessness, but obviously thats created a lot of thorny problems. On the other hand, one way you can look at speech on campus is actually theres a lot of free speech happening and certainly when i was at berkley its just its more of a fact of life and part of everyday life that is good, including the counterspeech against people who i mean, counterspeech meaning speech by people who are disturbed by the hateful speech. And those students rights to speak out. Jeff is watching us in boston. Hi, jeff. Hi. Thanks for taking my question. So recently ive read about a College Student that made a posting on social media that had some racist connotations, even though it wasnt intended to be so and the university or Kansas State University expelled the student. And in a separate case i read about a couple of High School Students that expressed themselves in a way that seemed racist and their Public High School expelled them. How is that possible . Well, i hate to shock you, jeff, but a lot of Government Officials including on campuses and high schools do things that violate the constitution. It was not self enforcing as katie said. The Supreme Court never really enforced the First Amendment at all until well into the 20th century. No provision in the constitution is self enforcing. It takes advocates such as the Knight Institute and the aclu and clients who come to them to be able to actually translate the theoretical freedoms of the First Amendment into reality for real people. Good time to tell you that our next case is tinker versus Des Moines School district, which is about student free speech and so relevant to so much of the discussion on campuses, high school and College Campuses today. Lets pause and learn more about clarence bradenburg who gave his name to this important First Amendment case. Tell you a little bit about him. He was 48 years old at the time his case went to the court, but he was unhappy person with his life circumstances. In 1958 he was laid off from the local General Electric plant where he worked and threatened to sue the company for that. He went back to his television repair business and by 1959 had to declare bankruptcy for that. In the summer of 1963 he attempted to take over the local White Supremacy group the National Association for the advancement of white people, and that was the context for him in the event for which he was arrested. Now, here is the timeline of his case. It was june 28th, 1964 when he organized and then also spoke at a kkk rally outside of cincinnati in ohio on a private farm. Im going to talk about that importance. What was also significant is it wasnt just that group of people as Nadine Strossen said, he invited local media, and, in fact, a station in cincinnati, wlwt came to film the rally. And august 6th of 1964 he was arrested at his tv repair shop. In december of 66, they had trouble apparently seating a jury on this case. He was convicted under the 1919 ohio law. He appealed that to the ohio Supreme Court, and that was rejected. And on january 6th, 1967, clarence bradenburg was sentenced to ten years in prison and 1,000 fine. Now, he could have gotten even higher fine. So the court was a little bit lenient looking at that. So whats important to know about that timeline . Well, i will say one thing about clarence bradenburg to paraphrase justice frankfurter that many safeguards of liberty have been forged by people who are not very nice, essentially. And i think that thats one of the things we were talking about is what was the membership of the klan at the time. Even clarence bradenburgs lawyer referred to his client, rally, as kind of silly and absurd. That they didnt actually have they didnt really make a big impact. It wasnt widely attended, et cetera. But yet you still had the Historical Context in the background of the klans role. And i think the fact that the civil rights and the historic 1964 civil rights statute was about to be enacted. It was signed into law just a few days after his speech on july 2nd. So what was it significant that this was on a private property . Very much so because it would be very difficult to argue that anybody could feel intimidated or threatened by the expression because they didnt know that it was going on. It was not aimed at them. It was also a rally among supporters. It was like a Membership Meeting of people who all shared the same view, exercising their freedom of association as well as their freedom of speech. You mentioned in the description that some people brought guns. Was that an important thing for the ohio authorities . The Supreme Court didnt note it, susan. And i think under the statute did not really make a difference because the statute criminalized mere expression, just conveying certain ideas, advocating certain ideas. So when this case was appealed to the ohio Supreme Court, a new lawyer by the name of allen brown came in. Now the interesting thing about him, he was jewish, and many of mr. Bradenburgs comments were antisemitic. Do we know anything about allen brown thats important to know in this story . Well, i looked him up. He was at the aclu of cincinnati for many years. He was a committed civil rights, Civil Liberties lawyer. He served in world war ii and seems like an extremely smart and honorable man. And he did agree to take this case, even though clarence bradenburg himself was not thrilled to be represented by a jewish attorney, but he really felt committed to the cause of free speech. I actually had the opportunity to meet him in cincinnati in the early 90s. There were some incidents of censorship taking place there in what many of us call censornatti and he and i were going to be on a panel together. His son also said his father, who naturally defended free speech for the most unpopular speakers is the only person in his office who he saw both a ku klux klan leader and a black panther leader. This is part of the history of the organization you led for such a long time. We have a piece of video next to show that will be a familiar face to cspan viewers since Eleanor Holmes norton for many years served as member of congress representing District Of Columbia as a delegate. But back then, she was an aclu lawyer, national lawyer, and were going to listen to her talking about this case. The aclu had only two national lawyers, and i was one of them. So that if there was a case that was going to the Supreme Court involving importance of liberties issue, like the First Amendment issue, the right to speech, for example, or to print, that had to come through the national office. So i was on the brief in the bradenburg case. The 70s the 60s and 70s was a good moment in time for the court to look at what advocacy means and how powerful it can be in bringing change, and i mean positive change to our country. Now, i can tell you since i was in the Civil Rights Movement, i thought that all of my colleagues who were also in what we call the Student Nonviolent Coordinating Committee would say go get em, elanor. After all, we need all the speech we could get because we need it every day that we wake up. Instead, some said, what is eleanor doing . If you talk to them now, they will tell you when theyve gotten as old as i have that they understand what she was doing. But there was mixed feelings in the Civil Rights Movement even. The failure to make the connection between the neutrality of speech, and that in a Democratic Society its very hard, unless the government makes a decision, to say who is allowed to speech and who is not and do you want the government making that decision or do you want a free for all on speech . Well, i go for a free for all. I mean, sometimes i got to defend people who would not defend me. Im sure you both have something to say about that. Nadine strossen, well start with you since she was with the organization that you led for such a long time. Absolutely. I read an interview that Eleanor Holmes norton did at the time of the case and interestingly enough she said she was very aware that even though she was defending the free speech right in the context of a racist, she was convinced that 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 the country. And in fact, i think those were major beneficiaries. Yeah. Echoing what nadine said, if you look at bradenburg the times that the decision was applied after the 1969 decision was in the case of an antiwar protester in the hess case and then later on in the early 80s in the naacp versus Claiborne Hardware case where on using bradenburg, the court overturned the conviction of a civil rights demonstrators who had threatened violence against people who were not adhering to a boycott of racist stores. It was it has been, in fact, applied to people on all sides of speech spectrum. Lets go back to calls. Birdie in hagerstown, maryland. Youre on the air. Welcome. Oh, hi. I wanted to talk about the doctrine of free speech exemplified by shouting fire in a crowded theater. And i was wondering what is the culpability of a person who would intentionally seek out someone that they knew to be suggestible, someone who is very badly educated or emotionally unstable and sat next to them in the crowded theater and goes, sniff sniff, do you smell smoke . Wouldnt a fire be terrible . And you know, i think i see a lot of this suggestion taking place in some instances. Birdie, you have done what 99 of people do when they think they are paraphrasing that famous line from Justice Holmes, but you left out a very crucial word, which i think answers your question in large measure. He said that freedom of speech does not extend to falsely shouting fire in a theater and causing a panic, right . If the theater really is on fire, we want people to shout fire, because it would be life saving. But if, in fact, the theater is not on fire, and it endangers people by falsely telling them it is and creating a panic, then that truly does satisfy this notion of a clear and present danger that would justify suppressing or punishing the speech. Yeah. I think that that example of falsely shouting fire in a crowded theater is an example that would satisfy the bradenburg standard that it was intended to incite and likely to incite imminent lawlessness or, you know, riot or harm. Janine is next, danville, kentucky. Hi, janine. Welcome. Thank you for taking my call. Ive heard this term compelling government interest as a way to limit speech on a college campus. And i was wondering if your guests could explain the term and tell me exactly what evidence is required to establish a compelling government interest. Thank you for taking my call. Thats another legal formulation similar to the bradenburg standard, but youve only given one part of it. The government including a University Official would have to show not only that that there was a compelling interest at stake but also that suppressing the speech was necessary in order to advance that interest. So if its an emergency and nothing short of censoring the speech is going to prevent that emergency, then and only then may the government suppress the speech. But if theres any other way of preventing violence, for example, that the speech threatens to imminently cause, for example, the police can come in and protect against the violence. Censoring speech has to be a last resort. Were learning about the history of landmark First Amendment case is that the Supreme Court, bradenburg versus ohio. Our next caller is basal, north ohlmstead, ohio. Welcome. Caller thank you. It is basal. It seems to me that the term legal system and man is not above the law are kind of contrary to the truth, because it is man in this country that makes the laws. To me morality and truth have nothing to do with the law, in my opinion. Im an octogenarian. Every time a law is created, a criminal act is added on the books. You do not make a law unless theres a punishment attached to it. To me the legal system has become a noose around the american publics neck. Our prisons are filled with people because of laws that put them in jail that wouldnt have been there before. Its all right to murder if the law says you can abort a child. But you cant kill another man with a gun without going to prison. So i just have to say the legal system better wake up to what theyre doing to this society. Im listening to you wonderful two ladies talking a lot of jargon and gibberish about First Amendment rights and Second Amendment rights. How about the truth and how about morality in law. Wake up, young ladies, before we go to hell in this country. I thank you for your time. Thank you, basal, for exercising your First Amendment right to dissent and criticize the law. So lets move on to the Supreme Court in 1969. Clarence bradenburg was first arrested in august of 64, so it took fully five years for his case to get to the Supreme Court. This is what the court looked like in 69. The eisenhowers appointees, chief justice earl warren, John Marshall harlan, ii. Potter stewart. Roosevelt appointees, hugo, kennedy appointees, byron wright. Johnson appointees. Well talk more about abe fortis history in the court in that particular year. This was one of earl warrens very last cases. He retired june 23, 1969, two weeks after the decision. So sum up the warren court for us. What was it noted for . Well, the warren court was particularly noted for being upholding a lot of Civil Liberties and civil rights particularly in the area of desegregation and other and criminal rights. I do think its interesting with this bradenburg case because it is at the very end of the warren court, and it certainly marks a very strong marker of protecting speech, but to some extent, the credit really for the development of the free speech principles has to go to earlier justices of holmes and brandeis, because although this was a warren court decision, the principles that they adopted and established in this case really were developed further and more sort of rich detail in those earlier decisions. One of the other interesting stories about the justices in this case is justice hugo black who wrote one of the concurrences. And in fact, he was at one time in his earlier history a member of the ku klux klan. He left in 1925. Remember, earlier we told you 1920s was the height of klan membership in the United States, also a former u. S. Senator from alabama. When he was appointed to the court in 1937; the pittsburgh postgazette did an investigation into his background and hugo black did a radio address responding to that part of his history. Ill let you listen to that next. The insinuations of racial and religious intolerance made concerning me are based on the fact that i joined the ku klux klan about 15 years ago. I did join the klan. I later resigned. I never rejoined. I completely discontinued any association with the organization. I have never resumed it and never expect to do so. At no meeting of any organization, social, political, or fraternal, have i ever indicated the slightest departure from my steadfast faith in the unfettered right of every american to follow his conscience in matters of religion. I number among my friends many members of the colored race. I have watched the progress of its members with sympathy and admiration. Certainly they are entitled to the full measure of protection, accorded to the citizenship of our country by our constitution and our laws. Some of my best and most intimate friends are catholics and jews. Lets ask both of you what this part of justice blacks background, what you know from studying him and his role on the court, that he brings to his thinking on this case. Whats important to know about it . Well, first of all, in defense of justice black, he apparently joined the klan at a time when that was just the done thing in politics in alabama. He was one of the greatest defenders and champions of Racial Justice that the Supreme Court has ever seen and as one way to put it, when he was a young man, he put on white robes to scare black people, when he was on old man he put on black robes and scared white people. He left a great legacy for both freedom of speech and equal rights. Yeah. I echo what nadine says. I dont think his last statements generally when you say some of my friends are black people or catholics or jews, it seems like its sort of a faint excuse, but i think in his actions and his votes on the Supreme Court he absolutely showed his commitment to Racial Justice and in this case he also as noted before, with Justice Douglas, took a particularly strong concurrence to make sure that the incitement standard was really strongly enforced. So the case was heard by the Supreme Court, the oral argument was on february 27th, 1969, richard nixon, president of the United States at that point. And as we mentioned earlier, the lawyer arguing on behalf of clarence bradenburg was allen brown. Were going to listen to a little bit of his oral argument and im going to have our guests talk about the legal principles he was trying to convince the court about. Lets listen. These are the facts in this case. A Television Reporter receives a telephone call indicating that if he wanted to he could come and take movies of a ku klux klan meeting. He came. He met some hooded figures and arrangements were made for the taking of a movie. A movie was taken in which a cross was burned, some figures milled about, and yelled some stupid and rather senseless slogans, and then a single figure was panned in on and he made a speech, a speech full of conditions, precedents and reservations and hyperbole selfevidently stupid and silly. Another film taken is inside the house there were guns . There were guns in the first two . There were guns in both films. In both films. There were guns. It is also to be noted that the film was taken on a remote private farm in which apparently there is no evidence whatsoever that these people were not invitees present on that farm by authority of the ownership of the farm. The case came on to trial. The state produced nothing but the film in question. The only other evidence that the state produced was basically geared to identifying the personnel involved in the film. In other words, showing that the man bradenburg had a gun similar to the guns in the film, and that he had markings on his person similar to the markings and that his voice was similar. Other than this, the state offered nothing. So what do you think about the argument hes making to the court . Yeah. I think everything that allen brown is doing is showing that this video and this rally really amounted to nothing. It was silly. It was stupid. And what hes trying to establish is that nothing in this speech that was the basis for his conviction showed an intent to cause violence or was likely to cause violence or would create a clear and present danger of violence. So he was he emphasized it was a private farm. There was no one there but the people who were invited. And really emphasizing the facts that there was no other evidence of a broader effort to create immediate violence. But, in fact, as we looked at the text of the ohio statute before, was he, in fact, rightly found guilty of that, the way it was written . The statute was written so broadly that, in effect, it was creating a speech crime or a thought crime punishing you because of disapproval of your ideas. What is the courts role also when theres as many as 33 states that have similar laws on the books, but then 14th amendment there are states that dont. So, how does that play into their thinking . Well, its kind of interesting, susan, because the decision could have been written very narrowly. And i think allen browns argument was saying to the court, look, he wasnt even advocating violence, right . Grounds, the court could have reversed the conviction well aassume for the sake of argument this statute is conditional. We dont have to reach that because he didnt violent. The court went much further and struck down that whole statute and by implication all of the others around the country. Were going to listen to some of the oral argument on the other side and then well return to some of your phone calls. The state of ohio sent Hamilton County prosecutor leonard kirshner to represent their interest before the Supreme Court. Here is a portion of his argument. I believe that the ohio criminal syndicalism law is fugal. Constitutional. I have cited various authorities relative to my beliefs in this matter in my brief. I believe that the basic matter before this court is the application of the evidence as was presented to the jury to determine whether or not there was sufficient evidence upon which a jury could return a verdict. I believe that in this case when counsel says sending the jews back to israel, lets give them back to the dark garden that this might not involve violence. I would like him perhaps in his reply to explain how the statement, bury the niggers, quote, unquote, would not constitute a violent form of actions. So the Ohio Attorney is suggesting what about his language and its intent . Well, hes suggesting that it could cause violence but interestingly enough since there was no evidence in that case he had to come up with a hypothetical and he said suppose that clarence bradenburg had said bury the negros in harlem to which Justice Thurgood marshall said, well, he wouldnt survive long if he said that. And allen brown, the aclu lawyer, said in his rebuttal, by the way the statement by justice marshall, if made in ohio, could itself violent the ohio criminal syndicalism law because it may be seen as encouraging violence against the speaker, against bradenburg. Katie fallow. Yeah. I think what kirchner was doing in his argument was sort the opposite of what allen brown was doing was trying to emphasize the facts that showed that there was a broader effort to stir up violence and unrest both from the incendiary nature of what bradenburg said and the fact and the court has a fair amount of back and forth about this, that bradenburg had actually invited the media in and invited the television network. What kirchner argued, he wasnt just speaking to the 12 people or so on the farm, he was trying to broadcast into the broader community, and that that would create a greater danger, clear and present danger of violence. Back to calls. Next up is bill in oak creek, wisconsin. Hi, bill. Welcome. Caller hello. Yes, sir, youre on the air. Caller my question is did brandenburg overturn, i believe it is called the sedition act that was enacted during world war i that you could not speak out against the war or during the war or them laws still apply . I think recently people have brought that up during the gulf of mexico gulf war and so far. One could make very strong arguments that the reasons in this case and other speech protective decisions by the Supreme Court would weigh in favor of overturning this sedition law if anybody ever challenged it in court. But to the best of my knowledge, that hasnt happened. Do you know anything more, katie . Well, is the espionage act the same . No. No, the espionage act, the federal espionage act which also prohibited advocacy of violence or unlawful acts and also prohibited certain acts that would undermine the war effort is still on the books. And was that used . And has been used since 9 11 and the war on terrorism and against leakers of leaking information that could aid foreign country. James is in morristown, new jersey. Hi, james. Caller hi. I just had a quick question. Interestingly enough just today i believe the white supremacist Richard Spencer was banned from utilizing facebook. And i was just wondering if theres any First Amendment implications to Something Like that . The First Amendment, along with virtually all rights, guarantees in the constitution only binds Government Officials. Facebook as a private sector entity, therefore is not constrained directly by the First Amendment at all. And under its terms of service, quite the contrary. It pledges to block certain speakers and certain expression that a Government Official would violate the First Amendment by blocking. Ben is up next in san diego. Hi, ben. Caller hi. So my question is particularly for Nadine Strossen. I have seen many such misstatements, yes. Caller about hate speech is free speech. Just to summarize it, he says that like hate speech is a physical imposition because language has a psychological affect imposed physically bringing about like toxic stress, fear, and distrust, which is all physical opinion ones neurocircuitry. And it can change the brain mild prejudice moving them toward. Hate is physically in your brain you think hate and feel hate youre moved to carry out what you physically and think and feel. Thats the summary of why he says hate speech is not free speech. I was wanting your response to that. It certainly is true that expression is very powerful and hate speech, which im going to put in air quotes because it does not have a specific legal definition, but lets say hateful, insulting speech on the basis of certain demographic characteristics certainly can have adverse, potentially have adverse psychological and even physiological impacts. But, not necessarily. It all depends on many, many factors, including the attitude of the person at whom the speech is targeted, right . So psychological experts, among others, say that we can train people to respond in a way that is empowering. They rise above the insults and they dont feel demeaned by that speech. Rather, its the person who is uttering such hateful venom is the person who should be looked down upon. Moreover, if there is an adverse emotional or psychological response by a particular target of speech, that can never be a justification for censorship. Just think of all the implications all of us are subject to all kinds of expression that causes adverse emotional impacts. Including expression about very important Public Policy issues. Our democracy couldnt survive if every time somebody had psychic pain, and i dont mean to diminish it, but im just saying the cure of censorship is even worse than the disease of some psychic pain, especially when we can all learn to be resilient and avoid that pain or minimize it. Katie, youre adding. You want to add your thoughts . Nadine wrote a book about this. I think absolutely that hate speech is not defined and so you start going down the road of trying to have the government censor it in some way, no one can agree what constitutes hate speech so its hard to censor it. But also to be clear there are areas of law where you can the government can punish hate speech thats directed as a true threat against an individual. So its not that theres no protection against things that really put someone in fear of bodily harm. I think thats a great point. So the generalization hate speech is not free speech is wrong, the generalization that all hate speech is protected is also wrong. Our law draws wonderful nuance distinctions such as in the bradenburg case. If hate speech intentionally incites imminent violence that is likely to happen, it can and should be punished consistent with brandenburg. Mark is in millville, pennsylvania. Good evening. Thank you for taking my call. Im looking for guidance on employee speech. Specifically for an employee at a public campus, for example, do they enjoy the full range of First Amendment protections while engaging in speech on that campus . Or are there limits in that regard . Well, 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 educational context. So if an employee said something that undermined the educational function of the university, that could be punished. But we would have to be very careful that it was not that that power to maintain the educational function was not used selectively to punish certain ideas just because the university disapproved of or disagreed with the ideas. The decision in bradenburg was handed down by the court on june 9th, 1969. Next up were going to listen to Walter Cronkite of cbs announcing the decision on the nightly news. Another case the court overturned the conviction of a ku klux klansman. The ruling said a man cannot be punished merely for what he says if the words are not designed to incite lawlessness. And thats the brief report on the national news. We said before that this was a per curiam decision. That means exactly what . It means its just coming from the court. Typically a justice who writes a single justice is assigned to write the majority opinion, the opinion that will govern the case, but in a per curiam, its not attributed to any particular justice and it seems fair to infer that the reason why this is a per curiam decision it was first written by justice fortis before he resigned in a financial scandal and then brennan, Justice Brennan then edited it and at least some scholars have reported that he really changed this language from the clear and convincing test to really make this new test of intentional incitement and likelihood of incitement. This was a unanimous 80 decision. Are per curiams always unanimous . No. In fact, i was surprised to refresh my recollection in preparation for this program that bush versus gore was a per curiam opinion that was the one that ultimately resulted in george bush, w. Bush becoming president for those who dont remember. And there were many, many separate opinions that individual justices issued but and the vote was as split as it could be, 54. And yet there was a per curiam opinion. What was the story about abe fortis . Well, its complicated because there were some allegations that he had too close a relationship with president johnson, with whom he had been very close politically, that that continued after he was on the court, which was improper, violating separation of powers concerns. And impartiality of a justice and as katie said, there were certain financial allegations as well. Im quite frankly not clear what it was that in particular compelled him to resign but he had some Financial Relationships with some entities that were themselves being investigated for improprieties. Had he been suggested as a possible earl warren replacement . Im sorry. All of this came out. He was nominated to become chief justice. There were hearings apparently was the first time there were Senate Confirmation hearings for that kind of elevation. And it was those who were opposed to him perhaps id logically raising some of these other issues. Here san excerpt from the per curiam decision. We are here confronted with a statute which, by its own words and as applied purports to punish mere advocacy and to forbid upon pain of criminal punishment assembly with ores merely to advocate the described type of action. Such a statute falls within the condemnation of the first and 14th amendments. Your comments . Yeah. This was a watershed moment. The court had sort of inched towards that result and there hadnt been that many Supreme Court decisions for nearly 20 years between the dennis case and the bradenburg case, but what they are saying is that mere advocacy, even of violence and unlawful action, cannot be punished under the First Amendment. And in later cases there have been questions what does this mean . What does the test mean . You have to intend to incite violence. It has to be like it has to be imminent. The violence has to be imminent and theres a question of what does iminnocent mean and it has to be likely to incite violence. You look at not just the text of the speech or the content of the speech itself but also the context in which it takes place how likely would bit to trigger violence. And you see in the case, the hess case came about in 1973 maybe. 72. 72. An antiwar protester said well take to the fing streets later. And the court held that was not sufficiently imminent harm to uphold a conviction, so its suggesting that even if violence were to occur even a matter of hours after the speech, that could not be punished. There are two concurrences justice black and Justice Douglas. Here is a bit of the excerpt from Justice Douglas. The example usually given by those who would punish speech the the case of one who falsely shouts fire in a crowded theater. This is however a classic case where speech is brigaded with action. They are indeed inseparable, and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, i think, immune from prosecution. Douglas along with black was probably the most absolutist in terms of protecting freedom of speech. And black who joined in and douglass concurrence used to quote the First Amendment which, as you read earlier, says Congress Shall make no law abridging the freedom of speech and black would say and douglas echoed, no law means no law. And so, they tried to make this distinction between speech and conduct but not quite because its speech that is so closely tied or brigaded as douglas said to conduct that the only way you can prevent the dangerous conduct is by suppressing the speech. But again, it has to be an emergency situation. It has to be suppression only as a last resort, if persuasion or Law Enforcement doesnt do the job. So as you both have said what came out of this case, what became known as the bradenburg test, you just referenced the three elements of it, intent, imminence and likelihood. And julia on twitter asks, can you discuss the intent element of theed brandenburg case . What kind of teeth have modern courts given it . Also curious about issues and challenges of imputing speech and intent of individual Group Members to the group as a whole, thinking here of charlottesville. Yeah. I think theres been a debate about do you intend to incite a particular kind of violence or do you just intend to give the speech . And theres been a debate about that. In terms of the events in charlottesville, i think that you have to look at what the speech that the individual protesters gave. The fact that they were going to have the protests. Theres been discussion about there, and they wanted to start violence. Things like that and i think the aclu has made the decision not to represent people who want to march with guns because of the concern about the imminence of violence, but you have to look at on the other hand you had all these protests after the charlottesville rallies where people came and there were white nationalists that were speaking, but it was peaceful ultimately. So you dont want to take these terrible events and try to use them as reasons to squelch any kind of speech, no matter how offensive it is. I think we have to be very concerned about guilt, avoiding guilt by association. That was really a play in the naacp case that katie mentioned earlier where the Supreme Court citing brandenburg, refused to hold the entire organization culpable in huge amount of damages, which the lower courts had upheld because of an incendiary speech that was given by one of its leaders. And its so good for those who care about the naacp, and its civil rights work, its very good that the Supreme Court ruled that way because that decision, if the Lower Court Decision had been sustained, it would have bankrupted the organization and stopped it from its civil rights advocacy. The reaction to the decision at the time not surprisingly in cincinnati where this case originated that was front page news, ohio law thrown out by high court ruling, but the New York Times in its reporting on the case, court voids law on urging violence put this story on page 13. Was it recognized at the time as being as important as we recognize it today . I didnt know that about the New York Times. I saw that law review commentary what did treat it appropriately as a very important case. So among lawyers it was celebrated and recognized. In our last 20 minutes, were going to talk about the legacy of brandenburg, but first let me tell you what happened to Clarence Brandenburg himself. We really dont know much about the rest of the history of his life. We know a little. He continued to be an angry person. In april of 1971 he was thrown out of the National Socialist white peoples party. In june of 71, he sued the cincinnati inquirer over the reporting of his ouster from that organization. And in april of 1972, he was jailed for harassing a jewish neighbor by telephone. He continued to be a frustrated individual who acted on those frustrations. We talked about a number of cases that have come along since then. Were going to show some of those on screen and talk about how they have continued to evolve our understanding of the First Amendment, but lets take a call from george in pittsburgh. George, youre on the air. Welcome. Caller oh, thank you. Thank you for your series, too. I wanted to ask, which i assume, did any imminent violence actually occur . From what you say, im guessing it didnt. And what bearing does that on the decision . In this case it certainly did not occur, and thats also true for well, actually as katie said earlier, in the third of the three cases that the Supreme Court decided, the naacp case there was violence after this fiery speech which threatened violence against people who violated the boycott of white merchants that were allegedly discriminating on the basis of race. There was violence. But it occurred weeks or months after the speech and therefore the Supreme Court said the imminence standard was not satisfied. But the opposite could be true. If the speech intended to and was likely to actually result in violence, that would satisfy the test even if the likelihood never actually came to pass. Pat is in key port, new jersey. Hi, pat. Hello. Nadine, maybe you can answer this question. I have read a lot lately about whats been called the hecklers veto, where you say people can engage in free speech if its likely to stimulate violence. What about the people who are trying to stifle speech threatening violence. Where does the original demonstrator where do his rights end and the other guys begin . The Supreme Court has recognized exactly what you talk about, pat, that we do not allow hecklers to who disagree with the speakers message or are offended by it or angered by it, we do not allow them, in effect, to veto the free speech rights of the speaker and the speakers willing audience members because that violates their First Amendment right. And i think its really important to note that the Supreme Court crafted that doctrine in the context of the Civil Rights Movement and civil rights demonstrations where many southern towns tried to stop Martin Luther king and other civil rights advocates from demonstrating, arguing that, well, there are all these people in the community that hate their message or are threatened by it, who are frightened by it, think its dangerous, subversive advocacy. They were actually throwing bottles and rocks. The Supreme Court said, no, you have to protect the speaker against the violence. You may not suppress the speech in order to avert violence by hecklers unless theres a breakdown of Law Enforcement, unless Law Enforcement is not up to its job. Stephen is in westin, connecticut. Hi, stephen. Caller oh, hi. I kind of like to look at the other side of the coin for a minute. Weve been looking at brandenburg as a protection, free speech case. Yet at the same time, the court is saying that if you reach some limit, there is a limit, however you express it, a standard, by which speech is not permissible. And thats even though the text of the First Amendment doesnt talk about limited speech under any conditions, could we not extend that approach to the Second Amendment where so many progun people are saying, well, the Second Amendment rights are absolute. Theres nothing in the text of the amendment to limit them. But yet we could cite brandenburg for saying, well, at some point, reasonable restrictions can be imposed in a constitutional and appropriate way. Well, im definitely where the First Amendment institute, not the been clear that the right to free speech is not absolute and there are certain ways of engaging in speech thats considered part and parcel of an actual crime, for instance engaging in speech in furtherance of a fraud or harassment in certain forms of conspiracy. Your actual speaking, you can still be punished even though the way that you are committing the crime is 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. Scalia was very strong 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 right that we are now recognizing. It is also not absolute. He actually gave examples of gun regulations that would be constitutional. The 1970s were an active time for First Amendment cases. Here are some of them. Cohen vs. California in 1971, a man was convicted for an obscene jacket in the courthouse. In indiana, one was convicted of cursing at police. The National Socialist party of america versus cokie, illinois, was a famous case in 1977. Texas vs. Johnson, banning flag burning, was struck down. Teenagers who burned a cross on an africanamerican familys lawn was convicted under a hate crime. And another one, youve been involved in some of these more recent ones. What can we learn about how the court is evolving on free speech . One of the things that is interesting about the brandenburg decision, although it involves the ku klux klan and burning the cross, it wasnt about the offensiveness of 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 towards instead of having a balancing test about speech, where you weigh the harm of the speech and the governments interest in regulating it almost equally, putting the thumb firmly on the scale in favor of the First Amendment. And so in all of those cases involving flag burning, which is considered extremely offensive to people and an argument that 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 as douglas is concurrent free speech is the rule, not the exception. The cases we also worked on, between those periods of time involved attempts to regulate video games or other kinds of violent media, and the argument being that, for instance, there were cases arising out of some of the School Shooting cases where the plaintiffs argued that producers of movies or video games depicting violence should be held accountable for the violence that occurred. And 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, it encourages people to act violently. And in a number of courts, we had argued in those courts that, under the brandenburg case, you cant show that a video game or a movie or a book that depicts violence is intending to incite violence. One more, our final piece of video. Featuring Justice Antonin Scalia and Eleanor Holmes norton talking about free speech. 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 doesnt matter what purpose you are using them for. You can be using your First Amendment rights and it 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. 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. Its interesting they go out against minority groups. They go out not against groups like themselves. But they specialize in hate. So hate speech is not only new, its important to understand that the Supreme Court cases that allow us today to have a me too movement, which allow the youngsters in the enough is enough movement, those are the youngsters who are 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. So in our final ten minutes, we have two 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. A neutral defense of individual freedom what to do or say or hear or not versus government power to make that decision is something that is to the benefit of everybody, no matter who you are, no matter what you believe. You should have your own right to make these fundamental decisions. And by definition, a government will be accountable to the majority. So those who 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. Hi, bill, youre on. Caller hi, a 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 protests. Where you had protesters, native americans, but also people 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, you 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 an unbelievable situation. These were essentially peaceful protesters. In effect, they were being criminalized for protesting. And i also, since then, weve heard that more and more states are enacting laws that would, in effect, criminalize this kind of protests. I wanted to get your reaction and thoughts about that. Bill, you stated it at least as well as i can. These actions clearly implement First Amendment rights. The rights exist in theory until you get the courts to recognize that they exist in reality. Thats why its so important to have organizations and individual members of the community such as you who 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. So, a question, just last week, in the secretary of state 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 rooms, have their arrests nullified. But he couldnt do that anymore. So, where does free speech in congress operations, when they are having public hearings, wheres that intersection . Yeah, 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 allowing people to you dont want to have protesters shout down or drown out the hearing. But i think it was last year that someone was arrested and prosecuted for, i think, laughing during Jeff Sessions confirmation hearing. And it was eventually dropped. But that was certainly beyond the pale. How does the United States do versus the other western democracies . Where do we stack up . It is mixed. But from where i stand, its positive. Political speech, speech about political officials, public affairs, we allow hate speech which in other countries is prosecu 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 its 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 a prudish stance with obscenity laws being enforced. One question, is there a difference in written versus verbal hate speech . No. Those types of each are treated equally for the purposes of the First Amendment. In fact, even some kinds of action or symbolic speech, expressing yourself physically is also protected as free speech. Charles in mobile, alabama. Hi, charles. Caller yes, maam. I would like to compliment cspan. It i would also like to compliment Justice Douglas. As for the lady from aclu, very nice lady, i would like to ask her what she is doing about the clipping of free speech at berkeley, california. All the conservative speakers that have been banned there. Thank you so much, charles. I wish i had 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 in fact too many 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. 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, callers have asked about free speech on social media and are there arguments about Holding Social Media platforms liable for restricting speech or for allowing speech, either way, either side of the coin. So i think that is the new frontier of the First Amendment, as the court recognized last year. Very quick and final caller, from florida. Bruce, what is your question for our guests . Caller im wondering if brandenburg would also include protecting silent gestures. Such as in the Olympic Games with tommy smith, giving the black power sign, and he was sent home. And how it would apply to the nfl today with athletes kneeling during the national anthem. Thank you. As katie said earlier, the Supreme Court has long recognized that socalled symbolic expression, which intends to and is understood as conveying a fairly specific message, does come within the protection of the First Amendment. Unless it violates the very stiff brandenburg test, which those examples do not, they cannot be punished by the government. Clarence brandenburg gave us the case that broadly defined the First Amendment rights of free speech in the United States. I want to say thanks to our two guests 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 on this series. Thanks again. Thank you. Thank you. Tonight, on American History tv, our series landmark cases continues. Produ we explore the issues, people, and places involved in some of the nations most significant Supreme Court cases. We begin at 8 00 p. M. Eastern with tinker versus des moines. Then at 9 35 p. M. , New York Times versus United States, which restricted the governments power over the press. Watch landmark cases tonight on cspan3 and anytime at cspan. Org. Cspan has unfiltered coverage of congress, the white house, and public events. You can watch online, on television, and on our app. And be part of the conversation on our washington journal program