Free Speech
Free Speech
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Clarence Brandenburg

  • KKK member Clarence Brandenburg was convicted of an Ohio law banning advocacy of violence to accomplish political change
  • Supreme Court ruled that Brandenburg had a First Amendment right to make his inflammatory comments

All of this set the stage for Clarence Brandenburg in 1964. Could he legally speak of taking revenge against the government for oppressing whites? Was he protected in encouraging illegal and violent action? The Supreme Court said yes. In a unanimous ruling, the Court overturned his conviction and further fine-tuned the language of the clear and present danger test. While in Dennis and Yates the Court had held that calls for concrete illegal action were criminal, in Brandenburg the Court held that even the "advocacy of the use of force or of law violation" was protected "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."51 In other words, words themselves were largely void of real significance; it was the surrounding circumstances that gave them meaning. Clear and present danger lay in neither the words chosen nor the behavior encouraged; it lay in the immediacy of the speaker's intentions and the likelihood that his words would achieve results.

The Brandenburg decision remains the most recent exposition of the clear and present danger test. For many, it also represents the most full and accurate restatement of Holmes's legal thinking. In other words, because a man suffered multiple wounds fighting to free the slaves and preserve the Union, another man was allowed to say that African Americans should be returned to Africa and vengeance should be taken against the federal government. Was this fitting? Ironic? Holmesian? What words best describe the peculiar unfolding of these historical circumstances?

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