6 Seditious Libel and Incitement to Illegal Action

Brandenburg v. Ohio: the Modern Standard for Incitement Doctrine

While the Red Scare derailed the movement toward more protective speech standards in incitement cases, that trend would resume during the later years of the Warren Court. As we will see in later sections, the Warren Court would take up the mantle of Justice Stone’s Footnote Four from Carolene Products, particularly in regard to creating greater protection for civil rights speakers. The Court also soured on Smith Act prosecutions, striking some down on technical grounds and others by narrowing the precedent from Dennis, such as holding in Yates v. United States (1957) that the federal government could only prosecute individuals who had advocated specific illegal conduct, as opposed to the broader Communist doctrine of revolution. No mention of clear and present danger (or Vinson’s probability test from Dennis) was made.

Once Smith Act prosecutions came to an end, the Court’s next (and for now, final) important incitement case was Brandenburg v. Ohio, a 1969 ruling which would set the legal test for incitement cases that remains in place today. Brandenburg, the leader of an Ohio chapter of the Klu Klux Klan, was recorded making a speech in which he warned that if political elites continued to “suppress” the white race, there might be some “revengeance [sic] taken.” Brandenburg was convicted under Ohio’s criminal syndicalism law (the same sort of laws used to prosecute Gitlow and Whitney, and the state counterpart to the Smith Act), and lost his appeal in state court.

The political and legal environment in which Brandenburg faced justice was dramatically different from that in Dennis. This Supreme Court had been more protective of radical or communist speech, having recently struck down laws that forced communists to register with the government or banned them from holding leadership positions in unions. Given such trends and the advance of free speech doctrine in other issue areas, the question was not whether Brandenburg would prevail at the Court but what legal test the Court would employ. Importantly, the Court abandoned the clear and present danger standard, adopted a new test (today referred to as the Brandenburg test), and formally overruled Whitney v. California.

Justice Fortas had been assigned the opinion but was pressured to resign from the Court after an ethics scandal. The opinion was thus per curiam, or “by the Court” as an institution rather than from a specific justice. Fortas had been reportedly working on modifying or narrowing the clear and present danger test before his resignation. Between his draft and the final opinion, however, his language was abandoned, with a new test in its place.

Brandenburg v. Ohio

305 U.S. 444 (1969)

Facts: Brandenburg, an Ohio Ku Klux Klan leader, had invited a local news station to record a Klan rally. The recording included a speech Brandenburg himself gave, during which (before hooded members and a burning cross) he made derogatory remarks towards Black and Jewish people, as well as this line: “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 was charged and convicted under Ohio’s criminal syndicalism law. After his state appeal was denied, he appealed to the Supreme Court.

Question: Did Ohio’s criminal syndicalism law violate the First Amendment?

Vote: Yes, 8-0

For the Court: Per Curiam

Concurring opinion: Justice Black

Concurring opinion: Justice Douglas

PER CURIAM.

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . 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 assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”

The appellant challenged the constitutionality of the criminal syndicalism statute under the First and Fourteenth Amendments to the United States Constitution… We reverse…

The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan “rally” to be held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on the local station and on a national network.

The prosecution’s case rested on the films and on testimony identifying the appellant as the person who communicated with the reporter and who spoke at the rally. The State also introduced into evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a Bible, and a red hood worn by the speaker in the films.

One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a large wooden cross, which they burned. No one was present other than the participants and the newsmen who made the film. Most of the words uttered during the scene were incomprehensible when the film was projected, but scattered phrases could be understood that were derogatory of Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan regalia, making a speech. The speech, in full, was as follows:

This is an organizers’ meeting. We have had quite a few members here today which are — we have hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping from the Columbus, Ohio, Dispatch, five weeks ago Sunday morning. The Klan has more members in the State of Ohio than does any other organization. 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.

… The second film showed six hooded figures one of whom, later identified as the appellant, repeated a speech very similar to that recorded on the first film. The reference to the possibility of “revengeance” was omitted, and one sentence was added: “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” Though some of the figures in the films carried weapons, the speaker did not.

The Ohio Criminal Syndicalism Statute was enacted in 1919… In 1927, this Court sustained the constitutionality of California’s Criminal Syndicalism Act, Whitney v. California (1927). The Court upheld the statute on the ground that, without more, “advocating” violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it. But Whitneyhas been thoroughly discredited by later decisions. See Dennis v. United States (1951) … These later decisions have fashioned the principle 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. As we said in Noto v. United States (1961):

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.

Measured by this test, Ohio’s Criminal Syndicalism Act cannot be sustained. The Act punishes persons who “advocate or teach the duty, necessity, or propriety” of violence “as a means of accomplishing industrial or political reform”; or who publish or circulate or display any book or paper containing such advocacy; or who “justify” the commission of violent acts “with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism”; or who “voluntarily assemble” with a group formed “to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions to the jury in any way refined the statute’s bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, 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 teaching of Whitney v. California cannot be supported, and that decision is therefore overruled.

JUSTICE BLACK, concurring.

I agree with the views expressed by JUSTICE DOUGLAS in his concurring opinion in this case that the “clear and present danger” doctrine should have no place in the interpretation of the First Amendment. I join the Court’s opinion, which, as I understand it, simply cites Dennis v. United States (1951), but does not indicate any agreement on the Court’s part with the “clear and present danger” doctrine on which Dennis purported to rely.

JUSTICE DOUGLAS, concurring.

While I join the opinion of the Court, I desire to enter a caveat.

The “clear and present danger” test was adumbrated by Mr. Justice Holmes in a case arising during World War I — a war “declared” by the Congress, not by the Chief Executive. The case was Schenck v. United States, where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment…

The dissents in Abrams … show how easily “clear and present danger” is manipulated to crush what Brandeis called “[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions” by argument and discourse even in time of war. Though I doubt if the “clear and present danger” test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California, which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous…

But in Dennis v. United States, we opened wide the door, distorting the “clear and present danger” test beyond recognition.

In that case, the prosecution dubbed an agreement to teach the Marxist creed a “conspiracy.” The case was submitted to a jury on a charge that the jury could not convict unless it found that the defendants “intended to overthrow the Government as speedily as circumstances would permit.” The Court sustained convictions under that charge, construing it to mean a determination of:

“whether the gravity of the evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” …

My own view is quite different. I see no place in the regime of the First Amendment for any “clear and present danger” test, whether strict and tight, as some would make it, or free-wheeling, as the Court in Dennis rephrased it.

When one reads the opinions closely and sees when and how the “clear and present danger” test has been applied, great misgivings are aroused. First, the threats were often loud, but always puny, and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment…

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre. 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…

Brandenburg’s per curiam opinion gives us the modern test for illegal incitement. That test is as follows: advocacy of illegal action cannot be criminalized unless it is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. While technically a two-pronged test, it is more easily broken down into three elements. Advocacy is protected unless it:

1. Directly advocates illegal action (where the intent is clear, usually from the words spoken)
2. The advocated action is imminent(happening immediately or very soon)
3. The advocated action is likely to occur as a result of the speech

The direct advocacy prong of the test attempts to delineate between speech critical of a particular law or policy and speech that specifically intends to advocate illegal action. For example, to return to our World War I cases involving the draft, “the draft is evil” would be clearly protected under Brandenburg even if it had the effect of leading individuals to dodge the draft while telling draft-eligible individuals “burn your draft letter and flee the country” might satisfy this prong Similarly, “political science professors are tyrants who should be robbed” would not satisfy the direct advocacy test, while “let’s meet after class and rob the political science faculty” might do so.

The imminence prong draws on the insights of the marketplace of ideas analogy and Brandeis’s dissent in Whitney: the proper cure for bad or dangerous speech is more speech, rather than punishment or censorship. It is only when there is no time for counter-speech to be introduced that the government can act to prevent a substantive evil. Like many legal concepts, imminence lacks a precise definition. “Immediately” or “tomorrow” would likely satisfy the test; an undefined timeframe or a call for action in the following year would not.

Finally, the test requires that the advocated action is likely to occur as a result of the speech. Here the concern is that censorship and prosecution of speech are harsh remedies that should not be applied unless the illegal activity is likely to occur because of the speech in question. This prong normally depends on the context of the factual scenario and the relationship between the speaker and the listener. A man shouting on a university quad, for example, is unlikely to inspire any illegal action among students or faculty that pass by, while a leader of a mob or a radical group might have the influence needed to spur illegal action.

The paradigmatic example of a situation that might meet Brandenburg’s standards involves a speaker who, during a speech before a group of people with whom he has influence, directly advocates illegal immediate action, such as “let’s burn down that house over there.” These situations are rare, and as such, prosecutions under Brandenburg are almost non-existent. The test—once referred to as a “fortress for free speech”—is among the toughest tests for the government to meet in all of constitutional law.

To return to the introductory question regarding whether Trump’s speech before the riots of January 6, 2021, is protected speech, Trump’s speech would probably be protected under Brandenburg. Trump’s speech satisfied the likelihood prong (the crowd was very likely to listen to Trump and carry out his orders) and the imminence prong (the speech was tied to the count of the Electoral College on that date). The key question is whether Trump’s speech, which included phrases such as “we’re going to fight like hell” and “we need to take back our country” directly advocated (i.e. showed intent) illegal action, rather than being symbolic language that did not directly advocate violence. Under an analysis of direct advocacy restricted to the words spoken, this speech would probably be protected under Brandenburg.

That said, in a 2022 civil suit against the former president by Capitol Police officers injured during the attacks, a U.S. District Court judge refused Trump’s motion to dismiss on First Amendment grounds. Trump’s speech, the judge ruled, could be seen as advocating violence or crime given his numerous earlier remarks that the election had been stolen from him as well as the context in which they were delivered. Here is the key excerpt from his opinion in Thompson v. Trump (2022):

Before January 6th, the President and others had created an air of distrust and anger among his supporters by creating the false narrative that the election literally was stolen from underneath their preferred candidate by fraud and corruption. Some of his supporters’ beliefs turned to action. In the weeks after the election, some had made threats against state election officials and others clashed with police in Washington, D.C., following pro-Trump rallies. The President would have known about these events, as they were widely publicized. Against this backdrop, the President invited his followers to Washington, D.C., on January 6th. It is reasonable to infer that the President would have known that some supporters viewed his invitation as a call to action…

The prospect of violence had become so likely that a former aide to the President predicted in a widely publicized statement that “there will be violence on January 6th because the President himself encourages it.” Thus, when the President stepped to the podium on January 6th, it is reasonable to infer that he would have known that some in the audience were prepared for violence.

Yet, the President delivered a speech he understood would only aggravate an already volatile situation. For 75 uninterrupted minutes, he told rally-goers that the election was “rigged” and “stolen, ” at one point asserting that “Third World Countries” had more honest elections. He identified who the culprits were of the election fraud: “radical Left Democrats” and “weak” Republicans. They were the ones who had stolen their election victory, he told them. He directed them not to “concede, ” and urged them to show “strength” and be “strong.” They would not be able to “take back [their] country with weakness.” He told them that the rules did not apply: “When you catch somebody in a fraud, you’re allowed to go by very different rules.” And they would have an “illegitimate President” if the Vice President did not act, and “we can’t let that happen.” These words stoked an already inflamed crowd, which had heard for months that the election was stolen and that “weak politicians” had failed to help the President.

So, when the President said to the crowd at the end of his remarks, “We fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore, ” moments before instructing them to march to the Capitol, the President’s speech plausibly crossed the line into unprotected territory…

… the President focuses on the fact that when he first alluded to marching to the Capitol, he said he expected rally-goers “to peacefully and patriotically make your voices heard.” … But the President’s passing reference to “peaceful and patriotic” protest cannot inoculate him against the conclusion that his exhortation, made nearly an hour later, to ‘fight like hell’ immediately before sending rally-goers to the Capitol, within the context of the larger Speech and circumstances, was not protected expression.

It’s important to note this lengthy opinion was only a rejection of Trump’s motion to dismiss the civil suit under several grounds (of which the First Amendment was only one), and the case’s ultimate outcome is uncertain. While it’s unlikely the case will reach the Supreme Court, it remains a case worth watching given its legal and political significance.