In the summer of 1964, not long after President Lyndon B. Johnson signed the landmark Civil Rights Act, a Ku Klux Klan member named Clarence Brandenburg invited a TV news reporter to a rally near Cincinnati.
Brandenburg, a television repairman, was wearing a hood, as were a dozen other Klan members who gathered. Some had guns. They burned a cross while spewing racist and antisemitic commentary. Brandenburg also made a threat about seeking vengeance.
“We’re not a revengent organization,” he said, inventing a new word. “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 revengence taken.”
What happened next has shaped First Amendment law for more than 50 years, laying down a legal doctrine at the center of former president Donald Trump’s Senate impeachment trial.
Brandenburg was arrested under an Ohio law that prohibited advocating violence to force political change. After being convicted and sentenced to a year in jail, he sued, alleging his free speech rights had been violated.
The case made it all the way to the Supreme Court, which ruled in the Klan member’s favor in 1969 and established a test to determine whether speech such as Brandenburg’s could be prohibited. Speech that is “directed at inciting or producing imminent lawless action” or “likely to incite or produce such action” was not protected by the First Amendment, the court said.
Though Trump’s impeachment is not a criminal trial, his lawyers in their legal briefs referenced Brandenburg v. Ohio, arguing that Trump didn’t direct his supporters to attack the Capitol. House managers prosecuting the case took the opposite view on Brandenburg and Trump, saying he crossed the line set up by the Supreme Court.
On Wednesday, the second day of the impeachment trial, Rep. Jamie Raskin (D-Md.), the lead House manager, called Trump the “inciter-in-chief” and argued that the ex-president had “no credible” First Amendment defense for urging the mob to attack the Capitol.
Constitutional-law scholars have been debating the issue for weeks in dueling op-eds.
Richard A. Wilson, a University of Connecticut law professor and co-author of a recent journal article about incitement in the age of populism, said the revival of the Klan case is a broader reminder of how free speech was extremely limited until the civil rights movement.
“We like to tell ourselves as Americans we’ve had all these great First Amendment rights for the entire period of our republic, but it’s simply not true,” Wilson said. “We were very repressive of speech until the end of the 1960s, and it was civil rights that opened the door.”
And that meant protecting speech that many would deem deplorable, including Brandenburg’s.
In his speech at the Klan rally, Brandenburg — using words too ugly to print then or now — demanded that Black people be deported to Africa and Jews to Israel.