An impeachment trial is not a court trial, per se, but in Impeachment II’s first days, we have heard mention of a few cases brought up as precedent for the awesome vote that faces the U.S. Senate. I teach a communication law class, and I tell students that First Amendment cases are not for the comfortable situations where we all agree on what’s being said and why, but for the kind of speech most of us might find abhorrent (but is, nevertheless, speech protected by the Constitution).
One case that’s been mentioned more than once in the impeachment trial is the 1969 Supreme Court case, Brandenburg v. Ohio. which helped define some boundaries for what is protected speech.
To have the former president’s defense team mention this case is…odd, given that at the case’s core was a flamer of a KKK member, Clarence Brandenburg, who in 1964 delivered the kind of racist speech one would give to a band of like-minded racist KKK members. The mention of this case as a defense strikes me as ironic because generally, one’s lawyers tend to want to distance clients from organizations such as the Ku Klux Klan, but this is 2021 and the new normal is ever-shifting. And we must continually remind ourselves that some of the jurors sitting in judgment of the former president have not shown much inclination to step away from racism, be it organized or free-flowing.
At the time in question, Brandenburg had invited a reporter from a local television news station to listen to him speak, and portions of his speech were broadcast. Some of the audio was garbled, but there were enough words captured that the meaning (including a new word, “revengeance,” which is Ohio for “vengeance,” I guess) was clear. Brandenburg was convicted of violating the Ohio Criminal Syndicalism statute for advocating violence, illegal activity, terrorism, or sabotage. That law was passed in the wake of World War I. At about the same time, similar laws were passed in 19 other states as an attempt to punish people of “communistic habits of thought who prefer force to reason.”
For his offense, Brandenburg was fined $1,000 and sentenced to 10 years in prison.
He appealed and appealed again and kept losing all the way up to SCOTUS, which granted a writ of certiorari, which meant they agreed to hear the case in February ‘69. In June, they ruled that Ohio’s law was overly broad, and that it violated Brandenburg’s freedom of speech. The law, in other words, was written so that it might ban language that didn’t necessarily advocate violence. Instead, the decision said
(1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and
(2) it is "likely to incite or produce such action.
On Thursday, House managers ended their arguments several hours before they used up the time allotted to them. Next up? The former president’s defense. I’m not a lawyer, but given the events of Jan. 6 — the deaths, maiming, and destruction — I’d give wide berth to Brandenburg. Then again, you can bring up every First Amendment case you’d like, but as Rep. Jamie Raskin, D-Maryland, said in his closing statement, there is one fool-proof way of making a decision on Trump’s culpability:
Common sense is the understanding that we all have without advanced learning and education. Common sense is the sense that is accessible to everybody, but common sense is also the sense we all have in common, as a community…Exercise your common sense about what just took place in our country.
Amen.