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'Incitement Of Insurrection' And The Brandenburg Test

Incitement Of Insurrection And The Brandenburg Test

With the acquittal of President Donald Trump by the Senate his impeachment trial saga has come to a close. There are however, several takeaways from the debates and discussions involved in the process, the most important being the Supreme Court case of Brandenburg Vs. Ohio 395 U.S. 444 (1969) which had laid down the famous 'Brandenburg test' on 'Free Speech' and 'Protected Speech' –...

With the acquittal of President Donald Trump by the Senate his impeachment trial saga has come to a close. There are however, several takeaways from the debates and discussions involved in the process, the most important being the Supreme Court case of Brandenburg Vs. Ohio 395 U.S. 444 (1969) which had laid down the famous 'Brandenburg test' on 'Free Speech' and 'Protected Speech' – a right guaranteed by the First Amendment and Fourteenth Amendment to the American Constitution. The First Amendment to the American Constitution states thus;

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

The Fourteenth Amendment to the American Constitution in Section 1 states thus;

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

What therefore, is the Brandenburg Test as laid down by the Supreme Court in the case of Brandenburg Vs. Ohio?.

Prior to the case of Brandenburg, the law concerning advocacy and free speech consisted of a series of variations based on the doctrine of "clear and present danger" declared by the U.S. Supreme Court in the cases of Schenck v. United States 249 U.S. 47 (1919), Frohwerk v. United States 249 U.S. 204 (1919) and Debs v. United States 249 U.S. 211 (1919) in which the justices unanimously upheld the constitutionality of the Espionage Act. The question in every case," Justice Holmes had stated, in those cases, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. The "clear and present danger" doctrine, uttered in response to Socialist opposition to American entry into World War I, many feel, was intended to explain why speech that was constitutionally protected in time of peace might be made criminal in time of war. Elaborating the said principle further the court had held that 'The character of every act depends upon the circumstances in which it is done. . . . When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight ...'. Justice Holmes, writing the opinion/judgment of the court in Schenck had concluded that the pamphlet prepared by the petitioners in Schenck created a 'clear and present danger' of obstruction of the draft i.e. conscription, and thus held that the petitioners' conviction for conspiring to distribute the pamphlet was constitutional.

In Dennis v. United States, 341 U.S. 494 (1951) the Court added a further dimension to the principle of 'clear and present danger' doctrine to the effect that the danger which justifies government restriction of speech need not be "present" at all. The Court in Dennis upheld the constitutionality of certain provisions of the Smith Act, as well as convictions under the Act for conspiring to advocate and teach the desirability of overthrowing the government at some point in the future. In doing so, the Court held that the clear and present danger test required a court to ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. In other words, the probability of the advocated danger occurring at some indefinite future time may be low, but if the gravity of the danger is great then the speech may be curtailed. The Dennis version of the clear and present danger test thus gave the government more powers and permitted broad speech restriction.

By the year 1957 however, political situation in U.S.A. had undergone a sea-change and therefore, in Yates v. United States 354 U.S. 298 318 the Court indicated that it could not continue with the full implications of the case of Dennis and held that mere advocacy of belief could not be made a crime. The Court reasoned that since the Smith Act was only aimed at prohibiting "the advocacy and teaching of concrete action for the forcible over-throw of the Government, and not of principles divorced from action," Dennis could not be read as obliterating the traditional distinction "between advocacy of abstract doctrine and advocacy of action." Advocacy of the principle of violent overthrow, the Court indicated, was protected by the First Amendment, even if uttered with specific intent and hope to accomplish violent overthrow. Advocacy of "action for the accomplishment of forcible overthrow," on the other hand, was not protected, even if the action advocated was to take place at an indefinite future time: The essential distinction made was that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something.

Earlier, in the year 1927, in the case of Whitney Vs. California, 274 U.S. 357 (1927), the First Amendment principles had been put to test before the U.S. Supreme Court. In the facts of that case one MS Whitney was arrested and convicted of violating the California Criminal Syndicalism Act of 1919 for her role in helping to establish a party with communist ideology, the CLP. The State of California alleged that the CLP advocated the violent overthrow of the United States government and hence, the mere act of assisting in the formation of the CLP, becoming a member, or assembling with others to teach syndicalism constituted an illegal act, a felony, under the law. The matter was carried to the American Supreme Court. Justice Sanford, delivering the opinion/judgment of the court went beyond Oliver Wendell Holmes Jr.'s "clear and present danger" test in Schenck v. United States (1919) to state that the goals of the CLP abused free speech by uttering words that were "inimical to the public welfare, tending to incite crime, disturb the peace or endanger the foundations of organized government and threaten its overthrow," relying on what was essentially the "bad tendency test" first developed in Pierce v. United States (1920) and Gitlow v. New York (1925). The Court further had ruled that the law did not violate the Fourteenth Amendment's due process and equal protection clauses, and that it was a valid exercise of the state police powers. Significantly, in this case, justice Louis D. Brandeis had written a concurring judgment. However, in his judgment, while concurring with the majority, he made a spirited defense of free speech which sowed the seeds for the later Brandenburg judgment. The case of Whitney v. California, however, was not expressly overruled earlier till the judgment in Brandenburg case.

In 1961 came the judgment of Noto v. United States, 367 U. S. 290,297-298. In this judgment the court felt that the earlier judgments relating to the Smith Act were actuated by a fear of invasion of Communist Ideology and the First Amendment Jurisprudence needed change and held thus: "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." The court was further of the view that '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'.

And then in the year 1969 came the case of Brandenburg v. Ohio 395 U.S. 444. Putting all earlier decisions relating to the First Amendment and the Fourteenth Amendment of the U.S. Constitution into the melting pot the U.S. Supreme Court made a holistic attempt to delineate when the First Amendment protects advocacy of ideas or action, and when it does not. In Brandenburg, the Court stated in a unanimous opinion/judgement 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. Thus was born the "Brandenburg Test' by which the court established that speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite "imminent lawless action." Applying this test, the Court struck down Ohio's Criminal Syndicalism Act as the Act, in the opinion of the court, punished persons who only "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." In the facts of the case one Clarence Brandenburg had addressed a small gathering of Ku Klux Klan members in a field in Hamilton County, Ohio. During the address, which was recorded by invited media representatives, Brandenburg bemoaned the fate of the "White Caucasian race" at the hands of the government. He made anti-Semitic and anti-black statements and alluded to the possibility of "revengeance" in the event that the federal government and Court continued to "suppress the white, Caucasian race." He also announced that the Klan members were planning to march on Washington, D.C., on Independence Day. Brandenburg was convicted of violating Ohio's Criminal Syndicalism law, which made it a crime to "advocate . . . the duty, necessity, or propriety of crime, sabotage, or unlawful methods of terrorism as a means of accomplishing industrial or political reform." He was fined and sentenced to serve one to 10 years in prison. The Supreme Court over turned his conviction and acquitted him. In so deciding, the Court specifically overruled Whitney v. California (1927), a case in which a woman had been convicted of belonging to a syndicalist organization in violation of a California law. The Court, however, did not explicitly overrule Dennis v. United States (1951), which had upheld the convictions of Communist Party leaders even though the danger their speech posed was far from imminent.

Be that as it may, the 'Brandenburg Test' has been consistently followed by the U.S. Supreme Court in deciding subsequent cases. In Hess v. Indiana (1973) the Supreme Court applied the Brandenburg Test to a case in which Hess, an Indiana protester had said, "We'll take the fuc... street again" (or later) The Supreme Court ruled that Hess's profanity was protected under the Brandenburg test, as the speech "amounted to nothing more than advocacy of illegal action at some indefinite future time." The Court concluded that "since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a 'tendency to lead to violence.'" In another case titled NAACP v. Claiborne Hardware Co. (1982), Charles Evers threatened violence against those who refused to boycott white businesses. The Supreme Court applied Brandenburg test and found that the speech was protected. The court was at pains to hold "Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech".

American Judicial history reveals that the Brandenburg principle has stood the test of time and continues to be the litmus test in all criminal prosecutions relating to free speech. However, in some cases involving issues of institutional exceptions such as admissions into Bar Associations and non-criminal sanctions Justice Rehnquist has overlooked the Brandenburg test.

It is refreshing to note that even the Indian Supreme Court has referred to and relied upon the Brandenburg Test principle in some of its decisions. In the case of Arup Bhuyan Vs. State of Assam (2011) 3 SCC 377 and in the case of Indra Das Vs. State of Assam (2011) 3 SCC 380 our Supreme Court has profitably quoted from the judgement of Brandenburg V. Ohio and has gone to the extent of even stating thus;- "We respectfully agree with the above decisions, and are of the opinion that they apply to India too, as our fundamental rights are similar to the Bill of Rights in the U.S. Constitution."

Views are personal.

(Jana Kalyan Das is a Senior Advocate at the Supreme Court of India, Sandeep Devashish Das and Ninad Dogra are Advocate on Record at the Supreme Court of India)

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