Lies the government told you by Andrew Napolitano (best e reader for epub TXT) 📗

an arbitrary exercise of California’s police power. In a concurring opinion, however, Justice Louis Dembitz Brandeis echoed Holmes’s “imminence-of-danger” idea, and stated his belief that free speech promotes active self-government, helping us to fulfill our role as citizens. Repression of ideas, according to Brandeis, was a sign of weakness or panic.

What makes the outcome in this case even more frightening is that Charlotte Anita Whitney, a political activist, did not come close to violating the California statute.12 At a convention in Oakland during which Whitney hoped to organize a California branch of the Communist Labor Party, Whitney supported a resolution calling for the achievement of the party’s goals through political means.13 Not once did Mrs. Whitney advocate violent action. She actually voted against a radical, militant platform that the Party ultimately adopted. Since the platform advocated violent action, Whitney was charged with belonging to a group that advocated criminal syndicalism, even though Whitney herself never advocated violence.

Saving the First Amendment . . . for Real

In 1969, in the case of Brandenburg v. Ohio, the Supreme Court of the United States finally came full circle, and unanimously overturned what was left of Schenck and Whitney.14 Clarence Brandenburg, an Ohio Ku Klux Klan leader, was convicted in an Ohio state court under the Ohio Criminal Syndicalism statute of “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 of “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate doctrines of criminal syndicalism.”

Brandenburg conducted a Klan rally in Hamilton County, Ohio, in which members wore hoods, burned a cross, and made several vicious speeches expressing their hatred for nonwhites. As noted in “Lie #3,” one participant at Brandenburg’s rally actually stated, “Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel.” The Klan members also discussed participating in a march on Washington to fight for the white race, and threatened to take “revengence.” While the Klan’s speech was utterly despicable, a unanimous Court held that the Ohio Act was unconstitutional because it punished “mere advocacy” of unlawful action.

According to the Court, the United States Constitution does not allow the federal government or a state government to proscribe advocacy of the use of force or unlawful action, “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (emphases added). This opinion cemented the rule that neither the states nor the federal government can pass laws to silence offensive or inflammatory statements that are not likely to result in imminent lawless action.

The new rule on free speech from and after Brandenburg—and still the law today—is that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to neutralize it before the sought-for result can come about. Therefore, if Brandenburg had been applied during World War I, or during America’s preoccupation with the evils of Communism, all of the aforementioned cases would have come out differently. Unfortunately, Clarence Schenck, Eugene Debs, Charlotte Whitney, Clarence Waldron, and Robert Goldstein, who spent their adulthood as prisoners for their speech, were dead by the time the Court came to its constitutional fidelity in Brandenburg.

Brandenburg is still good law for good reason. As Americans, we are brought up under the impression that we live in a “free country,” where we can say whatever we want, with very limited repercussions. Brandenburg reestablished this view, while also protecting against unthinking, reflexive violence. The Brandenburg decision ensures lively debate on key public issues, but also guarantees exposure to all kinds of opinions, no matter how disgusting or irrational. We do not enjoy hearing about Ku Klux Klan rallies, or any type of hate speech.

Mahmoud Ahmadinejad, the current President of the Islamic Republic of Iran, has called homosexuality an abomination, denied the Holocaust, and hopes someday to blow Israel off the face of the Earth. Nevertheless, Columbia University President Lee C. Bollinger invited Ahmadinejad to speak at his school on September 24th 2007. Bollinger introduced Ahmadinejad as a “petty and cruel dictator,” and Ahmadinejad’s speech was met with strong opposition from the audience, as well as protestors outside the event. At first, one might ask, “Who would welcome such a lunatic?” Looking back on the event, Bollinger’s goal was clear: he wanted to expose his students to Ahmadinejad’s views, so as to educate them and show them that such ideas cannot gain much traction in America, but the speaker of them has as much right to advance them as does any other speaker to seek to repel them.

The Court in Brandenburg essentially conveyed the same message. That is, all American governments must permit all speech, whether offensive, harmful, incendiary or not, and trust that a consensus of freedom will prevail.

Did You Get the Message?

The government frequently tries to regulate “commercial speech,” or speech that proposes a commercial transaction. After deciding that commercial speech is afforded at least some First Amendment protection in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976),15 the Supreme Court of the United States developed the modern, speech-protective rule governing restrictions on commercial speech in the case of Central Hudson Gas v.Public Service Commission of New York (1980).16 In Central Hudson Gas, the Commission issued an order banning electric utility companies from engaging in promotional advertising intended to encourage the use of electricity. The Court invalidated the order, outlining a four-part test used to determine the validity of similar restrictions.

First, the Court determines whether the speech at issue is true and nondeceptive, and whether it promotes a lawful product or service. Second, the Court determines whether the government has a substantial interest in regulating the speech. (How can any government in America have any legitimate, lawful, constitutional, national interest in regulating speech?) Third, the Court determines whether the regulation directly advances the government’s interest. Fourth, the Court determines